U.P.

LAW BOC REMEDIAL LAW

U.P. LAW BOC REMEDIAL LAW
U.P. LAW BOC REMEDIAL LAW
U.P. LAW BOC
TABLE OF CONTENTS
CIVIL PROCEDURE ...................................................1
I. CIVIL PROCEDURE ..................................... 2
A. GENERAL PRINCIPLES IN REMEDIAL LAW
...................................................................... 2
1. Distinguish: Substantive Law and Remedial
Law .............................................................. 2
2. Rule-Making Power of the Supreme Court 2
3. Nature of Philippine Courts ....................... 3
B. JURISDICTION OF COURTS ....................... 5
1. Classification of Jurisdiction ...................... 5
2. Doctrines of Hierarchy of Courts and
Continuity of Jurisdiction ............................. 6
3. Jurisdiction Of Philippine Courts ............... 6
4. Aspects of Jurisdiction ............................ 15
5. Distinguish: Error of Jurisdiction and Error of
Judgment ................................................... 19
6. Distinguish: Jurisdiction and Venue ........ 20
7. Jurisdiction over Small Claims, Rules on
Summary Procedure, Brgy. Conciliation ... 20
C. CIVIL PROCEDURE ................................... 22
1. General Provisions .................................. 22
2. Actions .................................................... 22
3. Cause Of Action ...................................... 26
4. Parties To Civil Actions ........................... 29
5. Venue ...................................................... 36
6. Pleadings ................................................ 38
7. Summons ................................................ 65
8. Motions ................................................... 72
9. Dismissal Of Actions ............................... 77
10. Pre-Trial .............................................. 80
11. Intervention ......................................... 87
12. Subpoena ........................................... 89
13. Computation Of Time .......................... 91
14. Modes Of Discovery ........................... 92
15. Trial ................................................... 103
16. Demurrer To Evidence ...................... 109
17. Judgments And Final Orders ............ 110
18. Post-Judgment Remedies ................ 116
19. Execution, Satisfaction, And Effect Of
Judgments ............................................... 147
D. PROVISIONAL REMEDIES ...................... 167
1. Nature And Purpose ............................. 167
2. Jurisdiction Over Provisional Remedies .. 168
3. Preliminary Attachment ......................... 168
4. Preliminary Injunction ............................ 175
5. Receivership ......................................... 179
6. Replevin ................................................ 182
7. Provisional Remedies And Interim Reliefs
Under Special Laws And Rules ............... 186
E. SPECIAL CIVIL ACTIONS ........................ 187
1. Nature Of Special Civil Actions ............. 187
REMEDIAL LAW
2. Distinguish: Ordinary Civil Actions And
Special Civil Actions ................................ 187
3. Jurisdiction And Venue ......................... 188
4. Interpleader ........................................... 188
5. Declaratory Reliefs And Similar Remedies
190
6. Review Of Judgments And Final Orders Or
Resolution Of The Commission On Elections
And The Commission On Audit ............... 194
7. Certiorari, Prohibition, And Mandamus .... 195
8. Quo Warranto ........................................ 201
9. Expropriation ......................................... 204
10. Foreclosure Of Real Estate Mortgage
.......................................................... 210
11. Partition ............................................. 216
12. Forcible Entry And Unlawful Detainer ...... 219
13. Contempt .......................................... 226
NOTE: PARTS F-H ARE UNDER SPECIAL PROCEDURE,
CRIMINAL PROCEDURE, AND EVIDENCE. ..................... 230
I. REVISED RULES ON SUMMARY ..................
PROCEDURE .................................................
.................................................................. 230
1. Cases Covered By The Rule ................. 230
2. Effect Of Failure To Answer .................. 231
3. Preliminary Conference And Appearances
Of Parties ................................................. 231
4. Prohibited Pleadings And Motions ........ 232
5. Appeal ................................................... 232
J. KATARUNGANG PAMBARANGAY ........ 233
1. Cases Covered ..................................... 233
2. Subject Matter For Amicable Settlement
233
3. Venue .................................................... 233
4. When Parties May Directly Go To Court 234
5. Execution .............................................. 234
6. Repudiation ........................................... 235
K. RULES OF PROCEDURE FOR SMALL CLAIMS
CASES .......................................................... 235
1. Scope And Applicability Of The Rule .............
235
2. Commencement Of Small Claims Action;
Response ................................................ 236
3. Prohibited Pleadings And Motions ..............
.............................................................. 238
4. Appearances ......................................... 238
5. Hearing; Duty Of The Judge ................. 238
6. Finality Of Judgment ............................. 239
L. RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES .......................... 239
1. Scope And Applicability Of The Rule .... 239
2. Civil Procedure ...................................... 239
U.P. LAW BOC
3. Special Proceedings ............................. 244
4. Criminal Procedure ............................... 247
5. Evidence ............................................... 251
M. ALTERNATIVE DISPUTE RESOLUTION 251
1. Types Of Processes And Procedures In Adr;
Comparison With Court-Annexed Mediation
252
2. Domestic Arbitration .............................. 252
3. Judicial Review Of Arbitral Awards ....... 253
4. Appeal From Court Decisions On Arbitral
Awards .................................................. 254
5. Special Rules Of Court On ADR ........... 254
SPECIAL PROCEEDINGS .....................................267
II. SPECIAL PROCEEDINGS ....................... 268
A. SETTLEMENT OF ESTATE OF DECEASED
PERSONS ............................................................. 268
1. Which Court has Jurisdiction ................ 269
2. Venue in Judicial Settlement of Estate . 269
3. Extent of Jurisdiction of Probate Court . 270
4. Powers and Duties of a Probate Court . 271
B. SUMMARY SETTLEMENT OF ESTATES ............ 271
1. Extrajudicial Settlement by Agreement
Between Heirs; When Allowed ................ 271
2. Two-Year Prescriptive Period ............... 272
3. Affidavit of Self-Adjudication by Sole Heir ...
.............................................................. 273
4. Summary Settlement of Estates of Small
Value; When Allowed .............................. 273
5. Remedies of Aggrieved Parties after
Extrajudicial Settlement of Estate ............ 274
C. PRODUCTION AND PROBATE OF WILL .............. 276
1. Nature of Probate Proceedings ............. 276
2. Who May Petition For Probate; Persons
Entitled To Notice .................................... 277
D. ALLOWANCE OR DISALLOWANCE OF WILL ....... 277
3. Contents of petition for allowance of will .....
.............................................................. 278
4. Grounds for Disallowing a Will .............. 279
5. Reprobate; Requisites before Will Proved
Outside Allowed in the Philippines; Effects
of Probate ............................................. 280
E. LETTERS TESTAMENTARY AND OF ADMINISTRATION
281
1. When and to Whom Letters of
Administration are Granted ................... 281
2. Order of Preference .............................. 283
3. Opposition to Issuance of Letters
Testamentary; Simultaneous Filing of
Petition for Administration ..................... 284
4. Powers and Duties of Executors and
Administrators; Restrictions on the Powers ...
.............................................................. 285
5. Appointment of Special Administrator ... 288
6. Grounds for Removal of Administrator .. 289
REMEDIAL LAW
F. CLAIMS AGAINST THE ESTATE ........................ 290
1. Time within which Claims shall be filed;
Exceptions ............................................. 291
2. Statute of Non-Claims ........................... 291
3. Claim of Executor or Administrator against
the Estate .............................................. 293
4. Payment of Debts .................................. 294
G. ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS ...................................................... 298
1. Actions by and against Executors ......... 298
2. Requisites before Creditor may bring an
Action for Recovery of Property
Fraudulently Conveyed by the Deceased
.............................................................. 299
H. DISTRIBUTION AND PARTITION ........................ 300
1. Liquidation ............................................. 300
2. Project of Partition ................................. 300
3. Remedy of an Heir Entitled to Residue but
Not Given His Share ............................. 301
4. Instances when Probate Court may Issue
Writ of Execution ........................................... 301
I. TRUSTEES.................................................... 302
1. Distinguish Trustee and
Executor/Administrator .......................... 302
2. Conditions of the Bond .......................... 303
3. Requisites for the Removal and
Resignation of a Trustee ....................... 303
4. Grounds for the Removal and Resignation
of a Trustee ........................................... 303
5. Extent of Authority of Trustee ................ 304
J. ESCHEAT ..................................................... 304
1. When to File .......................................... 304
2. Requisites for Filing of Petition .............. 305
3. Remedy of Respondent against Petition;
Period for Filing a Claim ........................ 305
K. GUARDIANSHIP ............................................. 305
1. Venue .................................................... 306
2. Appointment of Guardians .................... 306
3. General Powers and Duties of Guardians ...
.............................................................. 307
4. Termination of Guardianship ................. 309
L. ADOPTION .................................................... 310
1. Distinguish Domestic Adoption from Inter-
country Adoption ...................................... 310
2. Domestic Adoption ................................ 310
3. Inter-country Adoption ........................... 313
M. WRIT OF HABEAS CORPUS ............................. 314
1. Contents of the Petition ......................... 316
2. Contents of the Return .......................... 317
3. Peremptory Writ and Preliminary Citation ...
.............................................................. 317
4. When Not Proper or Applicable ............. 318
5. When Writ Disallowed or Discharged .... 318
6. Distinguished From Writ of Amparo and
Habeas Data ............................................ 319
U.P. LAW BOC
7. Writ of Habeas Corpus In Relation To
Custody of Minors [A.M. No. 03-04-04-SC] ...
.............................................................. 319
N. WRIT OF AMPARO ......................................... 323
1. Coverage .............................................. 323
2. Differences Between Amparo and Search
Warrant .................................................... 324
3. Who May File ........................................ 324
4. Contents of Return ................................ 326
5. Effects of Failure to File Return ............ 327
6. Omnibus Waiver Rule ........................... 327
7. Procedure for Hearing ........................... 327
8. Institution of Separate Action ................ 327
9. Effect of Filing a Criminal Action ........... 327
10. Consolidation .................................... 328
11. Interim Reliefs Available to Petitioner and
Respondent ............................................. 328
12. Quantum of Proof in Application for Issuance
of Writ of Amparo .................................... 329
O. WRIT OF HABEAS DATA ................................. 330
1. Scope of Writ ........................................ 330
2. Availability of Writ .................................. 330
3. Who May File ........................................ 331
4. Contents of the Petition ......................... 331
5. Contents of Return ................................ 331
6. Instances When Defenses May Be Heard in
Chambers ................................................ 332
7. Consolidation ........................................ 332
8. Effect of Filing Criminal Action .............. 333
9. Institution of Separate Action ................ 333
10. Quantum of Proof in Application for Issuance
of Writ of Habeas Data ............................ 333
P. CHANGE OF NAME ........................................ 343
1. Differences Under Rule 103, R.A. No. 9048
and Rule 108 ........................................... 343
2. Grounds for Change of Name ............... 345
Q. ABSENTEES ................................................. 346
1. Purpose of the Rule .............................. 346
2. Who May File; When to File .................. 346
R. CANCELLATION OR CORRECTION OR ENTRIES IN THE
CIVIL REGISTRY ................................................ 348
S. APPEALS IN SPECIAL PROCEEDINGS ............... 351
1. Judgments and Orders for Which Appeal
May Be Taken ......................................... 351
2. Modes of Appeal ................................... 352
3. Rule on Advance Distribution ................ 352
CRIMINAL PROCEDURE ......................................353
III. CRIMINAL PROCEDURE ................................. 354
A. GENERAL MATTERS............................... 354
1. Jurisdiction over Subject Matter and
Jurisdiction over Person of the Accused
Distinguished ........................................... 354
2. Requisites for Exercise of Criminal
Jurisdiction .............................................. 357
REMEDIAL LAW
3. Jurisdiction of Criminal Courts .............. 357
4. When Injunction May Be Issued To Restrain
Criminal Prosecution ............................... 359
B. PROSECUTION OF OFFENSES ......................... 359
1. Criminal Actions; How Instituted ........... 359
2. Who May File; Crimes That Cannot be
Prosecuted De Officio .............................. 360
3. Criminal Actions, When Enjoined .......... 363
4. Control of Prosecution ........................... 363
5. Sufficiency of Complaint or Information 365
6. Designation of Offense .......................... 367
7. Cause of the Accusation ....................... 368
8. Duplicity of the Offense; Exception ....... 369
9. Amendment or Substitution of Complaint or
Information ............................................... 369
10. Venue of Criminal Actions ................. 372
11. Intervention of Offended Party .......... 373
C. PROSECUTION OF CIVIL ACTION ...................... 373
1. Rule on Implied Institution of Civil Action with
Criminal Action ........................................ 373
2. When Civil Action May Proceed
Independently .......................................... 374
3. When Separate Civil Action Is Suspended .
.............................................................. 375
4. Effect of Death of the Accused or Convicted
On Civil Action ......................................... 375
5. Prejudicial Question .............................. 376
6. Rule on Filing Fees in Civil Action Deemed
Instituted With the Criminal Action ........... 377
D. PRELIMINARY INVESTIGATION ............. 377
1. Nature of Right ...................................... 377
2. Purposes of Preliminary Investigation ... 378
3. Who May Conduct Determination of
Existence of Probable Cause .................. 379
4. Resolution of the Investigating Prosecutor ..
.............................................................. 381
5. Review .................................................. 382
6. When Warrant of Arrest May Issue ....... 383
7. Cases Not Requiring Preliminary
Investigation nor Covered By the Rule on
Summary Procedure ................................ 383
8. Remedies of Accused If There Was No
Preliminary Investigation ......................... 384
9. Inquest .................................................. 385
E. ARREST .................................................... 386
1. Arrest, How Made ................................. 386
2. Arrest without Warrant, When Lawful .... 386
3. Method of Arrest .................................... 390
4. Requisites of a Valid Warrant of Arrest . 392
5. Determination of Probable Cause For
Issuance of Warrant of Arrest .................. 392
F. BAIL .......................................................... 392
1. Nature ................................................... 392
2. When a Matter of Right; Exceptions ...... 393
3. When a Matter of Discretion .................. 394
U.P. LAW BOC
4. Hearing of Application for Bail in Capital
Offenses .................................................. 396
5. Guidelines in Fixing Amount of Bail ...... 396
6. When Bail Not Required ....................... 397
7. Increase or Reduction of Bail ................ 397
8. Forfeiture and Cancellation of Bail ........ 398
9. Application not a Bar to Objections on Illegal
Arrest, Lack of or Irregular Preliminary
Investigation ............................................ 398
G. ARRAIGNMENT AND PLEA .................... 398
1. How Made ............................................. 399
2. When a Plea of Not Guilty Should Be
Entered .................................................... 401
3. When Accused May Enter a Plea of Guilty to
a Lesser Offense ..................................... 401
4. Accused Pleads Guilty to Capital Offense;
What the Court Should Do ...................... 401
5. Searching Inquiry .................................. 402
6. Improvident Plea of Guilty to a Capital
Offense .................................................... 402
H. MOTION TO QUASH ................................ 403
1. Grounds ................................................ 404
2. Distinguish Motion to Quash from Demurrer
to Evidence .............................................. 406
3. Effects of Sustaining the Motion to Quash ..
.............................................................. 407
4. Exception to the Rule that Sustaining the
Motion is Not a Bar to Another Prosecution ..
.......................................................... 408
5. Double Jeopardy ............................... 408
6. Provisional Dismissal ........................ 411
I. PRE-TRIAL ............................................... 411
1. Matters to Be Considered During Pre-Trial
412
2. What the Court Should Do When
Prosecution and Offended Party Agree to the
Plea Offered by the Accused ................... 412
3. Pre-Trial Agreement .............................. 413
4. Non-Appearance during Pre-Trial ......... 413
5. Pre-Trial Order ...................................... 413
J. TRIAL ........................................................ 414
1. Instances When Presence of Accused is
Required by Law ........................................... 414
2. Suspension on Account of Absence of
Witnesses ................................................ 414
3. Trial in absentia ..................................... 415
4. Remedy When Accused is not Brought to
Trial within the Prescribed Period ............ 415
5. Requisites for Discharge of the Accused to
Become a State Witness ......................... 416
6. Effects of Discharge of Accused as State
Witness .................................................... 416
7. Demurrer to Evidence ........................... 417
8. Guidelines on Continuous Trial (A.M. No. 15-
06-10-SC) ................................................ 418
REMEDIAL LAW
K. JUDGMENT .............................................. 421
1. Requisites of a Judgment ...................... 421
2. Contents of Judgment ........................... 422
3. Promulgation of Judgment; Instances of
Promulgation of Judgment in Absentia .... 423
4. Instances when Judgment Becomes Final
424
L. NEW TRIAL OR RECONSIDERATION..... 425
1. Grounds for New Trial ........................... 425
2. Grounds for Reconsideration ................ 425
3. Requisites Before a New Trial May be
Granted on Ground of Newly Discovered
Evidence .................................................. 425
4. Effects of Granting a New Trial or
Reconsideration ....................................... 426
M. APPEAL .................................................... 427
1. Effect of an Appeal ................................ 427
2. Where to Appeal ................................... 427
3. How Appeal Taken ................................ 427
4. Effect of Appeal by Any of Several Accused
....................................................................
433
5. Grounds for Dismissal of Appeal ........... 434
N. SEARCH AND SEIZURE .......................... 434
1. Nature of Search Warrant ..................... 434
2. Distinguish From Warrant of Arrest ....... 435
3. Application for Search Warrant; Where
Filed ...................................................... 436
4. Probable Cause for Issuance of Search
Warrant .................................................... 437
5. Personal Examination by Judge of the
Applicant and Witnesses ......................... 437
6. Particularity of Place to Be Searched and
Things to Be Seized ................................ 438
7. Personal Property to be Seized ............ 438
8. Exceptions to the Search Warrant
Requirement ............................................ 439
9. Remedies From Unlawful Search And
Seizure .................................................... 443
10. Cybercrime Warrants ........................ 444
O. PROVISIONAL REMEDIES IN CRIMINAL
CASES .......................................................... 450
1. Nature ................................................... 450
2. Kinds of Provisional Remedies ............. 451
EVIDENCE ............................................................. 453
IV. EVIDENCE ................................................... 454
A. GENERAL PRINCIPLES........................... 454
1. Concept of Evidence ............................. 454
2. Scope and Applicability of the Rules of
Evidence .................................................. 454
3. Distinguish: Proof vs. Evidence ............. 455
4. Distinguish: Factum Probans v. Factum
Probandum .............................................. 455
5. Admissibility of Evidence ....................... 455
U.P. LAW BOC REMEDIAL LAW

6. Burden of Proof and Burden of Evidence ...

.............................................................. 460
7. Presumptions ........................................ 461
8. Construction of the Rules of Evidence .. 465
9. Quantum of Evidence ........................... 466
B. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS ................................................ 467
1. What Need Not Be Proved .................... 467
2. Matters of Judicial Notice ...................... 467
3. Judicial Admissions ............................... 470
C. OBJECT (REAL) EVIDENCE.................... 472
1. Nature of object evidence ..................... 472
2. Requisites for Admissibility ................... 472
3. Categories of Object Evidence ............. 473
4. Chain Of Custody In Relation To Sec 21 Of
The Comprehensive Dangerous Drugs Act
Of 2002 .................................................... 473
5. DNA Evidence ....................................... 474
D. DOCUMENTARY EVIDENCE ................... 477
1. Meaning of Documentary Evidence ...... 477
2. Requisites for Admissibility ................... 477
3. Original Document Rule ........................ 477
4. Electronic Evidence .............................. 479
5. Parol Evidence Rule ............................. 482
6. Authentication and Proof of Documents .....
.............................................................. 484
E. TESTIMONIAL EVIDENCE ................................ 487
1. Qualifications of a Witness .................... 487
2. Disqualifications of Witnesses .............. 488
3. Examination of a Witness ..................... 494
4. Admissions and Confessions ................ 502
5. Hearsay Rule ........................................ 507
6. Opinion Rule ......................................... 515
7. Character Evidence .............................. 517
8. Judicial Affidavit Rule [A.M. 12-8-8-SC] 518
F. OFFER AND OBJECTION ........................ 521
1. Offer of Evidence .................................. 521
2. When to Make an Offer ......................... 522
3. Objection ............................................... 522
4. Repetition of an Objection ..................... 523
5. Ruling .................................................... 523
6. Striking Out an Answer ......................... 524
7. Tender of Excluded Evidence ............... 524
U.P. LAW BOC
4. Hearing of Application for Bail in Capital
Offenses .................................................. 396
5. Guidelines in Fixing Amount of Bail ...... 396
6. When Bail Not Required ....................... 397
7. Increase or Reduction of Bail ................ 397
8. Forfeiture and Cancellation of Bail ........ 398
9. Application not a Bar to Objections on Illegal
Arrest, Lack of or Irregular Preliminary
Investigation ............................................ 398
G. ARRAIGNMENT AND PLEA .................... 398
1. How Made ............................................. 399
2. When a Plea of Not Guilty Should Be
Entered .................................................... 401
3. When Accused May Enter a Plea of Guilty to
a Lesser Offense ..................................... 401
4. Accused Pleads Guilty to Capital Offense;
What the Court Should Do ...................... 401
5. Searching Inquiry .................................. 402
6. Improvident Plea of Guilty to a Capital
Offense .................................................... 402
H. MOTION TO QUASH ................................ 403
1. Grounds ................................................ 404
2. Distinguish Motion to Quash from Demurrer
to Evidence .............................................. 406
3. Effects of Sustaining the Motion to Quash ..
.............................................................. 407
4. Exception to the Rule that Sustaining the
Motion is Not a Bar to Another Prosecution ..
.......................................................... 408
5. Double Jeopardy ............................... 408
6. Provisional Dismissal ........................ 411
I. PRE-TRIAL ............................................... 411
1. Matters to Be Considered During Pre-Trial
412
2. What the Court Should Do When
Prosecution and Offended Party Agree to the
Plea Offered by the Accused ................... 412
3. Pre-Trial Agreement .............................. 413
4. Non-Appearance during Pre-Trial ......... 413
5. Pre-Trial Order ...................................... 413
J. TRIAL ........................................................ 414
1. Instances When Presence of Accused is
Required by Law ........................................... 414
2. Suspension on Account of Absence of
Witnesses ................................................ 414
3. Trial in absentia ..................................... 415
4. Remedy When Accused is not Brought to
Trial within the Prescribed Period ............ 415
5. Requisites for Discharge of the Accused to
Become a State Witness ......................... 416
6. Effects of Discharge of Accused as State
Witness .................................................... 416
7. Demurrer to Evidence ........................... 417
8. Guidelines on Continuous Trial (A.M. No. 15-
06-10-SC) ................................................ 418
REMEDIAL LAW
K. JUDGMENT .............................................. 421
1. Requisites of a Judgment ...................... 421
2. Contents of Judgment ........................... 422
3. Promulgation of Judgment; Instances of
Promulgation of Judgment in Absentia .... 423
4. Instances when Judgment Becomes Final
424
L. NEW TRIAL OR RECONSIDERATION..... 425
1. Grounds for New Trial ........................... 425
2. Grounds for Reconsideration ................ 425
3. Requisites Before a New Trial May be
Granted on Ground of Newly Discovered
Evidence .................................................. 425
4. Effects of Granting a New Trial or
Reconsideration ....................................... 426
M. APPEAL .................................................... 427
1. Effect of an Appeal ................................ 427
2. Where to Appeal ................................... 427
3. How Appeal Taken ................................ 427
4. Effect of Appeal by Any of Several Accused
....................................................................
433
5. Grounds for Dismissal of Appeal ........... 434
N. SEARCH AND SEIZURE .......................... 434
1. Nature of Search Warrant ..................... 434
2. Distinguish From Warrant of Arrest ....... 435
3. Application for Search Warrant; Where
Filed ...................................................... 436
4. Probable Cause for Issuance of Search
Warrant .................................................... 437
5. Personal Examination by Judge of the
Applicant and Witnesses ......................... 437
6. Particularity of Place to Be Searched and
Things to Be Seized ................................ 438
7. Personal Property to be Seized ............ 438
8. Exceptions to the Search Warrant
Requirement ............................................ 439
9. Remedies From Unlawful Search And
Seizure .................................................... 443
10. Cybercrime Warrants ........................ 444
O. PROVISIONAL REMEDIES IN CRIMINAL
CASES .......................................................... 450
1. Nature ................................................... 450
2. Kinds of Provisional Remedies ............. 451
EVIDENCE ............................................................. 453
IV. EVIDENCE ................................................... 454
A. GENERAL PRINCIPLES........................... 454
1. Concept of Evidence ............................. 454
2. Scope and Applicability of the Rules of
Evidence .................................................. 454
3. Distinguish: Proof vs. Evidence ............. 455
4. Distinguish: Factum Probans v. Factum
Probandum .............................................. 455
5. Admissibility of Evidence ....................... 455
U.P. LAW BOC CIVIL PROCEDURE
I. CIVIL PROCEDURE
A. GENERAL PRINCIPLES
IN REMEDIAL LAW
1. Distinguish: Substantive Law
and Remedial Law
Substantive law – Creates, defines, and
regulates rights and duties concerning life,
liberty, or property the violation of which gives
rise to a cause of action. [Bustos v. Lucero,
G.R. No. L-2068 (1948)]
Remedial law – Lays down methods by which
the rights and obligations arising from
substantive law are protected, enforced, and
given effect. [Bustos v. Lucero, G.R. No. L-
2068 (1948)]
Note: Procedural rules are not laws, for they
are promulgated by the Supreme Court in their
rule-making capacity under the Constitution
and do not originate from the legislative [Alvero
v. Dela Rosa, G.R. No. L-286 (1946)].
However, procedural rules have the force and
effect of law, if not in conflict with positive
law, since procedural rules are subordinate to
statute. [Inchausti & Co v. De Leon, G.R. No.
7887 (1913)]
2. Rule-Making Power of the
Supreme Court
Sec. 5(5), Art. VIII of the Constitution provides
that:
a. The SC shall have the power to
promulgate rules concerning:
1. The protection and enforcement of
constitutional rights,
2. Pleading, practice, and procedure in
all courts,
3. Admission to the practice of law,
4. The Integrated Bar, and
5. Legal assistance to the
underprivileged.
Page 2 of 525
REMEDIAL LAW
b. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
The SC has the sole prerogative to amend,
repeal, or even establish new rules for a
more simplified and inexpensive process, and
the speedy disposition of cases. [Neypes v.
CA, G.R. No. 141524 (2005)] Note that the
power to establish procedural rules is no
longer shared by the SC with Congress.
a. Limitations on the Rule-Making
Power of the Supreme Court
The rules of procedure promulgated by the SC
must:
a. Provide a simplified and inexpensive
procedure for speedy disposition of cases,
b. Uniform for all courts of the same grade;
and
c. Not diminish, increase or modify
substantive rights.
[Sec. 5(5), Art. VIII, Constitution]
b. Power of the SC to Amend and
Suspend Procedural Rules
General rule: COMPLIANCE
Compliance with procedural rules is the
general rule, and abandonment thereof should
only be done in the most exceptional
circumstances. [Pilapil v. Heirs of Briones, G.R.
No. 150175 (2007)]
Exception: AMENDMENT OR SUSPENSION
Basis for the SC’s power to amend or suspend
its rules:
1. Rule-Making power vested by the
Constitution, and
2. Sec. 5(g) of Rule 135: Every court shall
have power to amend and control its
process and orders so as to make them
conformable to law and justice.
The power of the SC to suspend its own rules
or to exempt a particular case from its
operation whenever the purposes of justice
require it, cannot be questioned. Substantial
rights must reign supreme over technicalities.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

The overarching aim of procedure is to achieve 3. Nature of Philippine Courts

substantial justice, hence, the power to
suspend if required in order to achieve the
a. Meaning of a Court
latter. [De Guzman v. Sandiganbayan, G.R.
No. 103276 (1996)]
A court is an organ of government belonging
to the judicial department, the function of which
The constitutional power of the SC to
is the application of the laws to controversies
promulgate rules of practice and procedure
brought before it as well as the public
necessarily carries with it the power to overturn
administration of justice. It is also the place
judicial precedents on points of remedial law
where justice is administered [1 Riano 65, 2014
through the amendment of the ROC. [Pinga v.
Bantam Ed., citing Black’s Law Dictionary, Am.
Heirs of Santiago, G.R. No. 170354 (2006)]
Jur. and C.J.S.]
Parties praying for a relaxation of procedural
rules must show the need for exceptional b. Distinguish: Court vs. Judge
treatment. [Prieto v. Alpadi Development
Corp., G.R. No. 191025 (2013)] Court Judge
Tribunal officially
Officer of such
What constitutes good and sufficient cause assembled under
tribunal
that would merit suspension of the rules is authority of law
discretionary upon the courts [CIR v. Mirant A being comparable
Pagbilao Corp., G.R. No. 159593 (2006)] A physical person
to a corporation
A judge is a public
Reasons which would warrant suspension of A court is an office
officer
the Rules include:
[1 Riano 65-66, 2014 Bantam Ed.]
1. Presence of special and compelling
circumstances,
A court is an entity possessing a personality
2. The merits of the case,
separate and distinct from the men who
3. A cause not entirely attributable to the fault
compose or sit on it [People v. Carlos, G.R. No.
or negligence of the party favored by the
L-239 (1947)].
suspension,
4. A lack of any showing that the review
Jurisdiction does not attach to the judge
sought is merely frivolous or dilatory,
but to the court. The continuity of a court and
5. A showing that the rights of the other party
the efficacy of its proceedings are not affected
will not be unjustly prejudiced by the
by the death, resignation, or cessation from the
suspension, [Sarmiento v. Zaratan, G.R.
service of the judge presiding over it [ABC
No. 167471 (2007)]
Davao Auto Supply v. CA, G.R. No. 113296
6. Transcendental matters of life, liberty or
(1998)]
state security, [Mindanao Savings and
Loan Association v. Vda. De Flores, G.R.
No. 142022 (2005)]
c. Classification of Philippine
7. To relieve a litigant of an injustice Courts
commensurate with his failure to comply
with prescribed procedure, or [Cu-Unjieng Regular Courts:
v. CA, G.R. No. 142022 (2005)] a. Supreme Court
8. Where substantial and important issues b. Court of Appeals
await resolution. [CIR v. Mirant Pagbilao c. Regional Trial Courts
Corp., G.R. No. 159593 (2006)] d. Metropolitan Trial Courts
e. Municipal Trial Courts
f. Municipal Circuit Trial Courts

Page 3 of 525
U.P. LAW BOC CIVIL PROCEDURE
Special Courts:
a. Sandiganbayan
b. Court of Tax Appeals
d. Courts of Original and
Appellate Jurisdiction
A court is one with original jurisdiction when
actions or proceedings are originally filed with
it.
A court is one with appellate jurisdiction when
it has the power of review over the decisions or
orders of a lower court. [1 Riano 47, 2016
Bantam Ed.]
Appellate jurisdiction refers to a process which
is but a continuation of the original suit, not a
commencement of a new action [Morales v.
CA, G.R. No. 126623 (1997)]
e. Courts of General and Special
Jurisdiction
Courts of general jurisdiction are those with
competence to decide on their own jurisdiction
and take cognizance of all cases, civil and
criminal, of a particular nature.
Courts of special/limited jurisdiction are
those which have jurisdiction only for a
particular purpose or a clothed with special
powers for the performance of specified duties
beyond which they have no authority of any
kind. [1 Riano 47, 2016 Bantam Ed.]
f. Constitutional and Statutory
Courts
A constitutional court is one created by a
direct constitutional provision, an example of
which is the SC. Only the SC is a constitutional
court.
A statutory court is one created by a law other
than the Constitution. All other courts are
statutory courts.
[1 Riano 45-46, 2016 Bantam Ed.]
Page 4 of 525
REMEDIAL LAW
A constitutionally-mandated court refers to
a court whose creation by Congress is
mandated by a constitutional provision, of
which there is only one example: the
Sandiganbayan [Sec. 4, Art. XI, Constitution].
While its existence is mandated by the
Constitution, its creation was through and by
P.D. 1486, issued by President Marcos.
g. Courts of Law and Equity
Philippine courts are courts of both law and
equity. Both legal and equitable jurisdictions
are dispensed with in the same tribunal. [US v.
Tamparong, 31 Phil 321-327 (1915)]
Equity jurisdiction is used to describe the
power of the court to resolve issues presented
in a case, in accordance with the rules of
fairness and justice, and in the absence of a
clear, positive law governing such issues. [1
Riano 41, 2016 Bantam Ed.]
Equity, which has been aptly described as a
“justice outside legality,” is applied only in the
absence of, and never against, statutory law.
Aequetas nunquam contravenit legis [GF
Equity, Inc. v. Valenzona, G.R. No. 156841
(2005)]
h. Principle of Judicial Hierarchy
Also known as “The Doctrine of Hierarchy of
Courts”
General Rule: A case must be filed with the
lowest court possible having the appropriate
jurisdiction.
For example, although the SC, CA, and the
RTC have concurrent jurisdiction over
certiorari, prohibition, and mandamus, a direct
invocation of the SC is improper. A petition
must be first made to the lowest court - the
RTC. [1 Riano 42, 2016 Bantam Ed]
Exception: The Supreme Court may disregard
hierarchy of courts if warranted by the following
reasons:
1. Where special and important reasons are
present,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2. When dictated by public welfare and policy, in consonance with the well-established
3. When demanded by interest of justice, principle that no man shall be affected by any
4. Where the challenged orders are patent proceeding to which he is a stranger [Sps.
nullities, Crisologo v. Omelio, A.M. No. RTJ-12-2321
5. Where compelling circumstances warrant, (2012), citing Sec. 16, Rule 39, and quoting
and Naguit v. CA, G.R. No. 137675 (2000)]
6. Where genuine issues of constitutionality
must be immediately addressed. [1 Riano
44-45, 2016 Bantam Ed] B. JURISDICTION OF
COURTS
Rationale
1. It would be an imposition upon the limited
Jurisdiction is the power of the court to hear,
time of the Court; and try, and decide a case. [Cuenca v. PCGG,
2. It would inevitably result in a delay, in the 535 SCRA 102]
adjudication of cases, which are remanded
or referred to the lower court as the proper In its expanded concept, it includes the
forum, or a trier of facts authority of the court to execute its
[People v. Azarraga, G.R. No. 187117 (2011)] decisions since such is an essential aspect of
jurisdiction and is the most important part of
A disregard of the doctrine of hierarchy of litigation [Echegaray v. Sec. of Justice, G.R.
courts warrants, as a rule, the outright No. 132601 (1999)]
dismissal of a petition [De Castro v. Carlos,
G.R. No. 194994 (2013)] Note: Jurisdiction is not the authority of the
judge to hear a case, but that of the court.
i. Doctrine of Non-Interference/ Jurisdiction over a case attaches to the court,
Doctrine of Judicial Stability and not the judge hearing it. It is not the
decision rendered, but rather the authority of
The Doctrine of Non-Interference/ Doctrine the court to decide the case.
of Judicial Stability holds that courts of equal
and coordinate jurisdiction cannot interfere with 1. Classification of Jurisdiction
each other’s orders. [Lapu-Lapu Devt Corp v.
Group Management Corp 388 SCRA 493, 508]
a. Distinguish: Original and
It also bars a court from reviewing or interfering Appellate
with the judgment of a co-equal court over
which it has no appellate jurisdiction or power Original Appellate
of review. [Villamor v. Salas 203 SCRA 540,
543] A court is one with
A court is one with
appellate jurisdiction
Note: Such doctrine applies also to original jurisdiction
when it has the
administrative bodies. When the law provides when actions or
power to review on
for an appeal to the CA or SC from the decision proceedings may be
appeal the decisions
of an administrative body, it means that such originally filed with it.
or orders of a lower
body is co-equal with the RTC and is then
court.
beyond the control of the latter. [Philippine
[1 Riano 47, 2016 Bantam Ed.]
Sinter Corp v. Cagayan Electric Power and
Light Co. Inc., G.R. No. 127371 (2002)]

When not applicable

The doctrine of judicial stability does not apply
where a third party claimant is involved – this is

Page 5 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. Distinguish: General and 2. Doctrines of Hierarchy of

Special Courts and Continuity of
General Special
Jurisdiction
Courts of special
Doctrine of Hierarchy of Courts
jurisdiction are those According to the doctrine of hierarchy of courts,
Courts of general
which have in case of concurrence of jurisdiction, a case
jurisdiction are
jurisdiction only for a must be filed first before the lowest court
those with
particular purpose or possible EXCEPT if one can advance a
competence to
clothed with special special reason which would allow a part to
decide on their own
powers for the directly resort to a higher court. [1 Riano 43,
jurisdiction and take
performance of 2016 Bantam Ed.]
cognizance of all
specified duties
cases of a particular
beyond which they
nature. Doctrine of Continuity of Jurisdiction
have no authority of
any kind. Also known as the doctrine of adherence of
jurisdiction.
[1 Riano 47, 2016 Bantam Ed.]
Once jurisdiction is vested, the same is
c. Distinguish: Exclusive and retained up to the end of the litigation. [De la
Concurrent Rosa v. Roldan, G.R. No. 133882 (2006)]

Concurrent/
Exclusive 3. Jurisdiction Of Philippine
Coordinate
Concurrent
Courts
jurisdiction is also
called coordinate a. Supreme Court
Exclusive
jurisdiction. It is the
jurisdiction General Rule: The SC is not a trier of facts.
power of different
precludes the idea of
courts to take Exception: The SC can look into the facts of a
co-existence and
cognizance of the case:
refers to jurisdiction
same subject matter. 1. When the conclusion is a finding grounded
possessed to the
Where such entirely on speculation, surmises and
exclusion of others.
jurisdiction exists, conjectures;
[Cubero v. Laguna
the court first taking 2. When the inference made is manifestly
West Multi-Purpose
cognizance of the mistaken, absurd or impossible;
Cooperatives, Inc., 3. Where there is a grave abuse of discretion;
case assumes
G.R. No. 166833 4. When the judgment is based on a
jurisdiction to the
(2006)] misapprehension of facts;
exclusion of the
5. When the findings of fact are conflicting;
other courts.
6. When the Court of Appeals, in making its
findings, went beyond the issues of the
[1 Riano 49, 2016 Bantam Ed.] case and the same is contrary to the
admissions of both appellant and appellee;
7. When the findings are contrary to those of
the trial court;
8. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;

Page 6 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

9. When the facts set forth in the petition as Agency, the petition shall only be
well as in the petitioners' main and reply cognizable by the CA and must be
briefs are not disputed by the respondents; filed there
and
10. When the findings of fact of the Court of b. Quo Warranto petitions,
Appeals are premised on the supposed c. Writ of Habeas Corpus,
absence of evidence and contradicted by d. Writ of Amparo,
the evidence on record. [Aklan v. Enero, e. Writ of Habeas Data, and [1 Riano 93-
G.R. No. 178309, January 27, 2009] 94, 2016 Bantam Ed.]
f. Writ of KaIikasan. [Sec. 3, Rule 7, Part
EXCLUSIVE ORIGINAL JURISDICTION 3, Rules of Procedure for
Petitions for certiorari, prohibition, and Environmental Cases]
mandamus against appellate courts, namely:
a. Court of Appeals, [Sec. 17, R.A. 296] 2. With RTC
b. Commission on Elections, [Sec 7, Art. IX, a. Cases affecting ambassadors, public
Constitution] ministers, and consuls [Sec. 21(2),
c. Commission on Audit, [Sec. 7, Art. IX, B.P. 129]
Constitution] b. Petitions for certiorari, prohibition, and
d. Sandiganbayan, and [P.D. 1606 as mandamus against lower courts [1
amended] Riano 93, 2016 Bantam Ed.]
[1 Riano 106, 2014 Bantam Ed.] c. Quo Warranto petitions,
e. Court of Tax Appeals (not en banc). [1 d. Writ of Habeas Corpus,
Riano 92, 2016 Bantam Ed.] (if en banc, e. Writ of Amparo, and
SC in appellate jurisdiction) f. Writ of Habeas Data.

CONCURRENT ORIGINAL JURISDICTION 3. With Sandiganbayan

1. With CA a. Writ of Amparo, and
a. Petitions for certiorari, prohibition, and b. Writ of Habeas Data.
mandamus against first-level courts
and bodies, namely APPELLATE JURISDICTION
i. RTCs [Sec. 21(1), B.P. 129] SC has appellate jurisdiction over petitions for
ii. Civil Service Commission [R.A. review on certiorari (appeal by certiorari under
7902] Rule 45) against the
iii. Central Board of Assessment a. CA,
Appeals [P.D. 464; B.P. 129; R.A. b. Sandiganbayan,
7902] c. RTC with respect to:
iv. NLRC and [St. Martin Funeral 1. Pure questions of law [Sec. 1, Rule
Homes v. NLRC, G.R. No. 130866 45] and
(1998); R.A. 7902] 2. Cases falling under Sec. 5, Art. VIII,
v. Other Quasi-Judicial Agencies. Constitution
[B.P. 129; R.A. 7902; Heirs of (i) All cases in which the
Hinog v. Melicor, G.R. No. 140954 constitutionality or validity of
(2005) [1 Riano 106-107, 2014 any treaty, international or
Bantam Ed.] executive agreement, law,
presidential decree, proclamation,
Note: Although there is concurrent order, instruction, ordinance, or
jurisdiction as the Constitution grants regulation is in question.
this to the SC, SC A.M. No. 07-7-12 (ii) All cases involving the legality of
issued on 4 December 2007 provides any tax, impost, assessment, or
that if the petition involves an toll, or any penalty imposed in
act/omission of a Quasi-Judicial relation thereto.

Page 7 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

(iii) All cases in which the jurisdiction ii. Civil Service Commission [R.A.
of any lower court is in issue, 7902]
(iv) All criminal cases in which the iii. Central Board of Assessment
penalty imposed is reclusion Appeals [P.D. 464; B.P. 129; R.A.
perpetua or higher, and 7902]
(v) All cases in which only an error or iv. NLRC and [St. Martin Funeral
question of law is involved, and Homes v. NLRC, G.R. No. 130866
[Sec. 5(2), Art. VIII, Constitution] (1998); R.A. 7902]
d. CTA in its decisions rendered en banc v. Other Quasi-Judicial Agencies.
[1 Riano 107, 2014 Bantam Ed.] [B.P. 129; R.A. 7902; Heirs of
e. MTC in the exercise of their delegated Hinog v. Melicor, G.R. No. 140954
jurisdiction, where the decision, had it been (2005) [1 Riano 106-107, 2014
rendered by RTC, would be appealable Bantam Ed.]
directly to the SC. [Sec. 34, B.P. 129, as b. Quo Warranto petitions,
amended] Such is the case because the c. Writ of Habeas Corpus,
MTC, when acting under delegated d. Writ of Amparo,
jurisdiction, is deemed to be acting as an e. Writ of Habeas Data, and [1 Riano 93-
RTC. [1 Riano 106, 2016 Bantam Ed.] 94, 2016 Bantam Ed.]
f. Writ of KaIikasan. [Sec. 3, Rule 7, Part
Only pure questions of law are involved when 3, Rules of Procedure for
no evidentiary matters are to be evaluated by Environmental Cases]
the SC. If the only issue is whether or not the
conclusions of the trial court are in consonance 2. With RTC
with law and jurisprudence, then the issue is a a. Petitions for certiorari, prohibition and
pure question of law [Urbano v. Chavez, G.R. mandamus against lower courts and
No. 87977 (1990)] bodies
b. Quo warranto petitions, and
Note that the SC has held that appeals from c. Writ of Habeas Corpus [1 Riano 96,
quasi-judicial agencies – even only on a 2016 Bantam Ed.]
question of law alone – may be brought to the d. Writ of Amparo, and [Sec. 3, Rule on
CA, via Rule 43 of the ROC. This constitutes the Writ of Amparo]
an exception to the general rule that e. Writ of Habeas Data [Sec. 3, Rule on
appeals on pure questions of law are the Writ of Habeas Data]
brought to the SC [Santos v. Committee on
Claims Settlement, G.R. No. 158071 (2009)] 3. With Sandiganbayan
(also see (a)(1)(v) under concurrent jurisdiction a. Writ of Amparo, and
of the SC) b. Writ of Habeas Data

b. Court of Appeals APPELLATE JURISDICTION

1. By ordinary appeal
EXCLUSIVE ORIGINAL JURISDICTION
Actions for annulment of judgments of the RTC
[see: Sec. 9(2), B.P. 129; Sec. 1, Rule 47]
CONCURRENT ORIGINAL JURISDICTION
1. With SC
a. Petitions for certiorari, prohibition, and
mandamus against first-level courts
and bodies, namely
i. RTCs [Sec. 21(1), B.P. 129]
a. From judgments of RTC and Family
Courts, [Sec. 9(3), B.P. 129, as
amended; Sec. 14, R.A. 8369]
b. Over decisions of the MTCs in
cadastral or land registration cases
pursuant to its delegated jurisdiction.
[Sec. 34, B.P. 129, as amended by
R.A. 7691]

Page 8 of 525
U.P. LAW BOC CIVIL PROCEDURE
2. By petition for review
a. From judgments of the RTC rendered
in its appellate jurisdiction, and [Sec.
22, B.P. 129, as amended; Rule 42;
Sec. 9, B.P. 129]
b. From decisions, resolutions, orders or
awards of the Civil Service
Commission and other quasi-judicial
bodies mentioned in Rule 43. [Sec.
9(3), B.P. 129]
Note: The enumeration of quasi-judicial
agencies under Sec. 1, Rule 43 is not
exclusive [Wong v. Wong, G.R. No.
180364 (2014), quoting Cayao-Lasam v.
Sps. Ramolete, G.R. No. 159132 (2008)]
3. From decisions of the Office of the
Ombudsman in administrative
disciplinary cases
[1 Riano 96-97, 2016 Bantam Ed.]
c. Court of Tax Appeals
EXCLUSIVE ORIGINAL JURISDICTION
1. Over tax collection cases involving final
and executory assessments for taxes,
fees, charges, and penalties; Provided,
however, that collection cases where the
principal amount of taxes and fees.
exclusive of charges and penalties
claimed, is less than P1,000,000 shall be
tried by the proper Municipal Trial Court
Metropolitan Trial Court, and Regional Trial
Court.
APPELLATE JURISDICTION
1. Exclusive appellate jurisdiction in tax
collection cases:
a. Over appeals from the judgements,
resolutions or orders of the Regional
Trial Courts in tax collection cases
originally decided by them, in their
respective territorial jurisdiction.
b. Over petitions for review of the
judgments, resolutions, or orders of the
Regional Trial Courts in the exercise of
their appellate jurisdiction over tax
collection cases originally decided by
the Metropolitan Trial Courts, Municipal
Trial Courts, and the Municipal Circuit
Page 9 of 525
REMEDIAL LAW
Trial Courts, in their respective
jurisdictions.
2. Exclusive appellate jurisdiction to review by
appeal:
a. Decision of the Commissioner of
Internal Revenue in cases involving
disputed assessments, refunds of
internal revenue taxes, fees, or other
charges, penalties in relation thereto,
or other matters arising under the
National Internal Revenue Code or
other laws administered by the Bureau
of Internal Revenue.
b. Inaction by the Commissioner of
Internal Revenue in cases involving
disputed assessments, refunds of
internal revenue taxes, fees, or other
charges, penalties in relation thereto,
or other matters arising under the
National Internal Revenue Code or
other laws administered by the Bureau
of Internal Revenue, where the
National Internal Revenue Code
provides a specific period of action, in
which case the inaction shall be
deemed a denial.
c. Decision, orders or resolutions of the
Regional Trial Courts in the local tax
cases originally decided oy resolved by
them in the exercise of their original or
appellate jurisdiction.
d. Decisions of the Commissioner of
Customs in cases involving liability for
customs duties, fees, or other money
charges, seizure, detention or release
of property affected, fines, forfeitures or
other penalties in relation thereto, or
other matters arising under the
Customs Law or other laws
administered by the Bureau of
Customs.
e. Decisions of the Central Board of
Assessment Appeals, in the exercise of
its appellate jurisdiction, over cases
involving the assessment and taxation
of real property originally decided by
the provincial or city board of
assessment appeals.
f. Decisions of the Secretary of Finance
on customs duties elevated to him
automatically for review from decisions
U.P. LAW BOC CIVIL PROCEDURE
of the Commissioner of Customs which
are adverse to the Government under
Sec. 2315 of the Tariff and Customs
Code.
g. Decisions of the Secretary of Trade
and Industry in the case of
nonagricultural product, commodity, or
article, and the Secretary of Agriculture
in the case of an agricultural product,
commodity, or article involving
dumping and countervailing duties
under Secs. 301 and 302, respectively,
of the Tariff and Customs Code, and
safeguard measures under RA 8800,
where either party may appeal the
decision to impose or not to impose
said duties.
[1 Riano 98-100, 2016 Bantam Ed.]
d. Sandiganbayan
EXCLUSIVE ORIGINAL JURISDICTION
a. Violations of R.A. 3019 or the Anti-Graft
and Corrupt Practices Act
b. Violations of R.A. 1379 or An Act Declaring
Forfeiture in Favor of the State Any
Property Found to Have Been Unlawfully
Acquired by Any Public Officer or
Employee and Providing for the
Proceedings Therefor
c. Bribery (Chapter II, Sec. 2, Title VII, Book
II, RPC), where one or more of the principal
accused are occupying the following
positions in government, whether in a
permanent, acting or interim capacity, at
the time of the commission of the offense
1. 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 (R.A. 6758),
specifically including:
● Provincial governors, vice-
governors, members of the
sangguniang panlalawigan, and
provincial treasurers, assessors,
engineers, and other provincial
department heads
● City mayors, vice-mayors,
members of the sangguniang
Page 10 of 525
REMEDIAL LAW
panlungsod, city treasurers,
assessors, engineers, and other
city department heads
● Officials of the diplomatic service
occupying the position of consul
and higher
● Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
● Officers of the Philippine National
Police while occupying the position
of provincial director and those
holding the rank of senior
superintendent and higher
● City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special
prosecutor;
● Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state
universities or educational
institutions or foundations
2. Members of Congress and officials
thereof classified as Grade 27 and up
under R.A. 6758
3. Members of the Judiciary without
prejudice to the provisions of the
Constitution
4. Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution
5. All other national and local officials
classified as Grade 27 and higher
under R.A. 6758
Note: Exclusive original jurisdiction shall be
vested in the proper RTC or MTC, as the
case may be, where none of the accused
are occupying positions corresponding to
Salary Grade 27 or higher, or military and
PNP officers mentioned above [Sec. 4,
P.D. 1606, as amended by R.A. 10660]
d. Other offenses or felonies whether
simple or complexed with other crimes
committed by the public officials and
employees mentioned in subsection a. of
U.P. LAW BOC CIVIL PROCEDURE
section 4 (as amended) in relation to their
office
e. Civil and criminal cases filed pursuant to
and in connection with E.O. Nos. 1, 2,
14-A
f. Petitions for mandamus, prohibition,
certiorari, habeas corpus, injunctions, and
other ancillary writs and processes in aid
of its appellate jurisdiction, and petitions of
similar nature, including quo warranto,
arising or that may arise in cases filed or
which may be filed under Executive
Order Nos. 1, 2, 14 and 14-A, issued in
1986
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
CONCURRENT ORIGINAL JURISDICTION
With SC, CA, and RTC for petitions for writs of
amparo [Sec. 3, Rule on the Writ of Amparo]
and habeas data [Sec. 3, Rule on the Writ of
Habeas Data]
APPELLATE JURISDICTION
The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of the RTC, whether in the
exercise of their own original jurisdiction or of
their appellate jurisdiction, as herein provided
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
e. Regional Trial Courts
EXCLUSIVE ORIGINAL JURISDICTION
a. All civil actions in which the subject of the
litigation is incapable of pecuniary
estimation [Sec. 19(1), B.P. 129, as
amended by R.A. 7691]
Test: If it is primarily for the recovery of a
sum of money, the claim is considered
capable of pecuniary estimation. On the
other hand, where the basic issue is
something other than the right to recover a
sum of money, and the money claim is
purely incidental to, or a consequence of,
the principal relief sought, such actions are
cases where the subject of the litigation is
incapable of pecuniary estimation. [Heirs of
Padilla v. Magdua, G.R. No. 176858
(2010), quoting Singson v. Isabela Sawmill,
G.R. No. L-27343 (1979)]
Page 11 of 525
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An action to nullify a Deed of
Assignment and Conveyance is not one
involving a subject matter incapable of
pecuniary estimation if the plaintiff also
seeks to the transfer of possession and
control of properties: In Home Guaranty
v. R-II Builders [G.R. No. 192649 (2011)],
an action that sought the nullification of a
Deed of Assignment and Conveyance was
characterized by the respondent on an MR
before the SC as one involving a subject
matter incapable of pecuniary estimation.
The SC disagreed and held that since the
action was not solely for the annulment of
the Deed of Assignment and Conveyance
– indeed, the respondent consistently
sought the transfer of possession and
control of properties – following the its
ruling in Ruby Shelter Builders and Realty
Development Corp. v. Formaran III, G.R.
No. 175914 (2009), the subject of the
action was capable of pecuniary
estimation.
However, if the principal nature of an
action to cancel a contract to sell, where
the defendant has already taken
possession of the property, involves a
determination on whether a suspensive
condition has been fulfilled – then the
subject matter involved is one that is
incapable of pecuniary estimation: In
Olivarez Realty v. Castillo [G.R. No.
196251 (2014)], the action instituted in the
trial court was one for the cancellation of a
contract to sell, and prior to the institution
of the action the defendant had already
proceeded to occupy the property involved.
In this instance, the SC held that the action
involved a subject matter that was
incapable of pecuniary estimation. The
difference in the ruling of the SC here and
in Home Guaranty lies in that fact that in
Olivarez Realty, what the plaintiff had
principally sought was a determination that
a suspensive condition for the perfection of
the contract had not been fulfilled: “the trial
court principally determined whether
Olivarez Realty Corporation failed to pay
installments of the property’s purchase
price as the parties agreed upon in the
U.P. LAW BOC CIVIL PROCEDURE
deed of conditional sale. The principal
nature of Castillo’s action, therefore, is
incapable of pecuniary estimation.”
See also: Heirs of Bautista v. Lindo [G.R.
No. 208232 (2014)], where an action to
redeem a land subject of a free patent was
characterized by the SC as one whose
subject matter was incapable of
pecuniary estimation since the
reacquisition of the land was merely
incidental to and an offshoot of the exercise
of the right to redeem the land, pursuant to
Sec. 119 of CA 141.
An expropriation suit is incapable of
pecuniary estimation [Barangay San
Roque v. Heirs of Francisco Pastor, G.R.
No. 138896 (2000)]
Lastly, an action for specific
performance in one incapable of
pecuniary estimation. [Russel v. Vestil, 304
SCRA 738 (1999)] Any amount of
damages claimed in addition to the prayer
for specific performance is not
determinative of jurisdiction. [1 Riano 135,
2016 Bantam Ed.]
b. Civil actions involving title to, or
possession of real property, or any
interest therein, where assessed value
exceeds P20,000 outside Metro Manila,
or exceeds P50,000 in Metro Manila [Sec.
19(2), B.P. 129, as amended by R.A. 7691]
Exception: Forcible entry and unlawful
detainer (FEUD) cases, as FEUD cases
are within the exclusive original jurisdiction
of the MTC. [Sec. 33(2), B.P. 129, as
amended by R.A. 7691]
An action "involving title to real property"
means that the plaintiff's cause of action is
based on a claim that he owns such
property or that he has the legal rights to
have exclusive control, possession,
enjoyment, or disposition of the same. Title
is the "legal link between (1) a person who
owns property and (2) the property itself."
Page 12 of 525
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[Heirs of Sebe v. Heirs of Sevilla, G.R. No.
174497 (2009)]
c. Any action if the amount involved
exceeds P300,000 outside Metro Manila
or exceeds P400,000 in Metro Manila in
the following cases [B.P. 129, as amended
by R.A. 7691]:
1. Actions in admiralty and maritime
jurisdiction, where the amount refers
to demand or claim [Sec. 19(3)]
2. Matters of probate (testate or
intestate), where the amount refers to
gross value of estate [Sec. 19(4)]
3. In all other cases where the amount
refers to the demand, exclusive of
interest, damages of whatever kind,
attorney’s fees, litigation expenses,
and costs [Sec. 19(8)]
d. All actions involving the contract of
marriage and family relations [Sec.
19(5), B.P. 129, as amended by R.A.
7691], and all civil actions and special
proceedings falling within exclusive original
jurisdiction of Juvenile and Domestic
Relations Court [Sec. 19(7), B.P. 129, as
amended by R.A. 7691]
Note: This jurisdiction is deemed modified
by Sec. 5, R.A. 8369, the law establishing
the Family Courts. However, in areas
where there are no Family Courts, the
cases within their jurisdiction shall be
adjudicated by the RTC [Sec. 17, R.A.
8369; 1 Riano 147, 2014 Bantam Ed.]
e. All civil actions and special proceedings
falling within exclusive original
jurisdiction of the Court of Agrarian
Reform [Sec. 19(7), B.P. 129, as amended
by R.A. 7691]
f. All cases not within exclusive
jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial
functions [Sec. 19(6), B.P. 129, as
amended by R.A. 7691] This jurisdiction is
often described as the “general
jurisdiction” of the RTC making it a court
U.P. LAW BOC CIVIL PROCEDURE
of general jurisdiction. [1 Riano 146, 2014
Bantam Ed.]
g. Intra-corporate controversies
1. Cases involving devises or schemes
employed by or any acts, of board of
directors, business associates, its
officers or partnership, amounting to
fraud and misrepresentation which
may be detrimental to interest of public
and/or of stockholders, partners,
members of associations or
organizations registered with SEC
2. Controversies arising out of intra-
corporate or partnership relations,
between and among stockholders,
members or associates; between any
or all of them and corporation,
partnership or association of which
they are stockholders, members or
associates, respectively; and between
such corporation, partnership or
association and the state insofar as it
concerns their individual franchise or
right to exist as such entity
3. Controversies in election or
appointments of directors, trustees,
officers or managers of such
corporations, partnerships or
associations
4. Petitions of corporations, partnerships
or associations to be declared in state
of suspension of payments in cases
where corporation, partnership of
association possesses sufficient
property to cover all its debts but
foresees impossibility of meeting them
when they respectively fall due or in
cases where corporation, partnership
or association has no sufficient assets
to cover its liabilities, but is under
management of a Rehabilitation
Receiver or Management Committee
[Sec. 52, Securities and Regulations Code]
h. Petitions for declaratory relief [Sec. 1,
Rule 63]
i. Cases originally falling within the exclusive
original jurisdiction of the Sandiganbayan
where the information:
Page 13 of 525
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1. Does not allege any damage to the
government or any bribery; or
2. Alleges damage to the government or
bribery arising from the same or closely
related transactions or acts in an
amount not exceeding P1 million. [Sec.
4, P.D. 1606, as amended by R.A.
10660]
CONCURRENT ORIGINAL JURISDICTION
1. With SC
a. Cases affecting ambassadors, public
ministers, and consuls [Sec. 21(2),
B.P. 129]
b. Petitions for certiorari, prohibition, and
mandamus against lower courts [1
Riano 93, 2016 Bantam Ed.]
c. Quo Warranto petitions,
d. Writ of Habeas Corpus,
e. Writ of Amparo, and
f. Writ of Habeas Data
2. With CA
a. Petitions for certiorari, prohibition and
mandamus against lower courts and
bodies
b. Quo warranto petitions, and
c. Writ of Habeas Corpus [1 Riano 96,
2016 Bantam Ed.]
d. Writ of Amparo, and [Sec. 3, Rule on
the Writ of Amparo]
e. Writ of Habeas Data [Sec. 3, Rule on
the Writ of Habeas Data]
3. With Sandiganbayan
a. Writ of Amparo, and
b. Writ of Habeas Data
APPELLATE JURISDICTION
Appellate jurisdiction over cases decided by
lower courts (i.e. MTC) in their respective
territorial jurisdictions, except those made in
the exercise of delegated jurisdiction, which
are appealable in the same manner as
decisions of the RTC. [Sec. 34, B.P. 129, as
amended]
SPECIAL JURISDICTION
Special jurisdiction - SC may designate
certain branches of RTC to try exclusively
criminal cases, juvenile and domestic relations
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

cases, agrarian cases, urban land reform g. Metropolitan Trial Courts,

cases not falling within the jurisdiction of any Municipal Trial Courts,
quasi-judicial body and other special cases in Municipal Trial Courts in Cities,
the interest of justice [Sec. 23, B.P. 129]
Municipal Circuit Trial Courts
f. Family Courts EXCLUSIVE ORIGINAL JURISDICTION
a. Where the value of personal property,
a. Criminal cases where one or more accused
estate, or amount of demand does not
is below 18 but not less than 9 years old or
exceed P300,000 outside Metro Manila
where one or more victims was a minor at
or does not exceed P400,000 in Metro
time of commission of offense,
Manila, exclusive of interest, damages of
b. Petitions for guardianship, custody of
whatever kind, attorney’s fees, litigation
children and habeas corpus in relation to
expenses, and costs, in the following
children,
cases:
c. Petitions for adoption of children and
1. Civil actions,
revocation thereof,
2. Probate proceedings, (testate or
d. Complaints for annulment of marriage, intestate)
declaration of nullity of marriage and those
3. Provisional remedies in proper cases.
relating to status and property relations of [Sec. 33(1), B.P. 129, as amended by
husband and wife or those living together
R.A. 7691]
under different status and agreements, and
petitions for dissolution of conjugal
Totality Rule
partnership of gains,
If several claims or causes of action are
e. Petitions for support and/or
embodied in the same complaint, the amount
acknowledgment,
of all the demands shall be the basis in
f. Summary judicial proceedings brought
computation of the amount involved, if
under the provisions of Family Code, 1. Claims are in the same complaint
g. Petitions for declaration of status of
2. Claims are against the same defendant
children as abandoned, dependent or
3. No misjoinder of parties [1 Riano 104,
neglected children, voluntary or involuntary
2016 Bantam Ed.]
commitment of children, suspension,
termination or restoration of parental b. Forcible entry and unlawful detainer
authority, and other cases cognizable
(FEUD)
under P.D. 603, E.O. 56, s. 1986, and other Note: When defendant raises questions of
related laws,
ownership in his pleadings and the
h. Petitions for constitution of family home,
question of possession cannot be resolved
i. Cases against minors cognizable under
without deciding issue of ownership, the
Dangerous Drugs Act, as amended, (now
latter issue shall be resolved only to
R.A. 9165)
determine the former issue [Sec. 33(2),
j. Violations of R.A. 7610, or the “Special B.P. 129, as amended by R.A. 7691]
Protection of Children Against Child Abuse,
c. All civil actions involving title to, or
Exploitation and Discrimination Act”, and possession of, real property, or any
k. Cases of domestic violence against
interest therein where assessed value of
Women and Children. property or interest therein does not
[Sec. 5, R.A. 8369]
exceed P20,000 outside Metro Manila, or
does not exceed P50,000 in Metro Manila
[Sec. 33(3), B.P. 129, as amended by R.A.
7691]
d. Inclusion and exclusion of voters [Sec.
49, Omnibus Election Code]

Page 14 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

SPECIAL JURISDICTION 4. Aspects of Jurisdiction

Special jurisdiction over petition for writ of
habeas corpus OR application for bail in
a. Jurisdiction over the Parties
criminal cases in the absence of all RTC
judges in the province or city. [Sec. 35, B.P.
Jurisdiction over the parties refers to the
129]
power of the court to make decisions that are
binding on persons. [De Pedro v. Romansan
DELEGATED JURISDICTION OF THE MTC
Development Corp, G.R. No. 194751 (2014)]
Delegated jurisdiction of 1st level courts
assigned by SC to hear and decide cadastral
It is also called jurisdiction in personam
and land registration cases covering
which is the power required before a court can
a. Lots where there is no controversy or
enter a personal or an in personam judgment.
opposition
[Pennoyer vs Neff, 95 US 714 (1878)]
b. Contested lots the value of which does
not exceed P100,000, the value is to be
It is an element of due process that is essential
ascertained:
in all actions, civil or criminal, except in actions
1. By the claimant’s affidavit
in rem or quasi in rem. [Guy v. Gacott, G.R. No.
2. By agreement of the respective
206147 (2016)]
claimants, if there are more than one;
or
Kinds:
3. From corresponding tax declaration of
a. Over the plaintiff
the real property
b. Over the defendant
c. Over non-parties – It is a principle of
MTC decisions in cadastral and land
equity that jurisdiction over a person not
registration cases are appealable in the same
formally or originally a party to a litigation
manner as RTC decisions, since MTCs acting
may nevertheless be acquired, under
in their delegated capacity are treated
proper conditions, through the voluntary
under law like RTCs.
appearance of that person before the court.
[Sec. 34, B.P. 129, as amended by R.A. 7691]
[Rodriguez v. Alikpala, G.R. No. L-38314
(1974)]
DIFFERENCE BETWEEN 1ST LEVEL
COURTS
i. How jurisdiction over the plaintiff
1. Metropolitan Trial Court – in each
is acquired
metropolitan area established by law [Sec.
25, B.P. 129], particularly Metro Manila
Courts acquire jurisdiction over a party plaintiff
[Sec. 27, B.P. 129]
upon the filing of the complaint [De Pedro v.
2. Municipal Trial Courts in Cities – In every
Romansan Development Corp, G.R. No.
city not part of a metropolitan area [Sec. 29,
194751 (2014)]
B.P. 129]
3. Municipal Circuit Trial Court – in each
By the mere filing of the complaint, the plaintiff,
circuit comprising such cities and
in a civil action, voluntarily submits himself to
municipalities grouped together pursuant
the jurisdiction of the court. [Guy v. Gacott,
to law [Sec. 25, B.P. 129]
G.R. No. 206147 (2016)]
4. Municipal Trial Courts – in municipalities
not comprised within a metropolitan area
and a municipal circuit [Sec. 30, B.P. 129]

Page 15 of 525
U.P. LAW BOC CIVIL PROCEDURE
ii. How jurisdiction over the
defendant is acquired
Jurisdiction over the person of the defendant is
acquired:
1. By his voluntary appearance in court and
his submission to its authority, or
2. By service of summons.
[Sec. 20, Rule 14; Macasaet v. Co, G.R. No.
156759 (2013)]
Voluntary Appearance of the defendant gives
the court jurisdiction over his person despite
lack of service of summons or a defective
service of summons. Since his voluntary
appearance in the action shall be equivalent to
service of summons.
For further discussion on voluntary
appearance, see section on Summons.
b. Jurisdiction over the Subject
Matter
i. Meaning of Jurisdiction over the
Subject Matter
Jurisdiction over the subject matter is the
power of a particular court to hear the type of
case that is then before it [1 Riano 71, 2014
Bantam Ed., citing Black’s Law Dictionary 767,
5th Ed.]
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz, G.R. No. L-
48754 (1941)]
Subject matter jurisdiction simply refers to the
judicial power that has been vested in a
specific type of court by the legal system, in
terms of what kinds of action it can decide and
what powers it can exercise in relation thereto.
[Prof. Avena]
ii. Distinguish: Jurisdiction and
Exercise of Jurisdiction
Jurisdiction is the authority to decide a case.
It is the power of the court.
Page 16 of 525
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Exercise of Jurisdiction is the exercise of
such power or authority. Where there is
jurisdiction over the person and the subject
matter, the decision on all other questions
arising in the case is an exercise of that
jurisdiction. [Republic v. G Holdings, Inc, G.R.
No. 141241 (2005)]
iii. How Jurisdiction is Conferred and
Determined
Jurisdiction over the subject matter of a case is
conferred by law and determined by the
allegations in the complaint which comprise
a concise statement of the ultimate facts
constituting the plaintiff's cause of action.
[Medical Plaza Makati Condominium v. Cullen,
G.R. No. 181416 (2013)]
The allegations in the body of the complaint
define the cause of action. The caption or title
of the cause of action is not controlling. [Dela
Cruz v. CA, G.R. No. 139442 (2006)]
Consequences of rule that jurisdiction is
conferred by law; it cannot be:
a. Conferred by voluntary act or agreement of
the parties,
b. Acquired, waived, enlarged, or diminished
by any act or omission of the parties, or
c. Conferred by the acquiescence of the
courts,
[De la Rosa v. Roldan, G.R. No. 133882
(2006)]
d. Conferred by administrative policy of any
court, or [Arranza v. B.F. Homes, Inc., G.R.
No. 131683 (2000)]
e. Conferred by a court’s unilateral
assumption of jurisdiction. [Tolentino v.
Social Security Commission, G.R. No. L-
28870 (1985)]
[1 Riano 75-76, 2014 Bantam Ed.]
Jurisdiction is not affected by the pleas set up
by the defendant in his answer or in a motion
to dismiss, otherwise, jurisdiction would be
dependent on his whims. [Sindico v. Diaz, G.R.
No. 147444 (2004)]
U.P. LAW BOC CIVIL PROCEDURE
iv. Distinguish: Doctrine of Primary
Administrative Jurisdiction and
Doctrine of Exhaustion of
Administrative Remedies
General Rule: The doctrine of primary
jurisdiction holds that if a case is such that its
determination requires the expertise,
specialized training and knowledge of the
proper administrative bodies, relief must first
be obtained in an administrative proceeding
before a remedy is supplied by the courts even
if the matter may well be within their proper
jurisdiction. [Province of Aklan v. Jody King
Construction and Dev’t Corp., G.R. No. 197592
(2013)]
The objective of the doctrine of primary
jurisdiction is to guide the court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court. [Province of Aklan v. Jody
King Construction and Dev’t Corp., G.R. No.
197592 (2013)]
Exceptions:
a. Where there is estoppel on the part of the
party invoking the doctrine,
b. Where the challenged administrative act is
patently illegal, amounting to lack of
jurisdiction,
c. Where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant,
d. Where the amount involved is relatively
small,
e. Where the question involved is purely legal
and will ultimately have to be decided by
the courts,
f. Where judicial intervention is urgent,
g. When its application may cause great and
irreparable damage,
h. Where the controverted acts violate due
process,
i. When the issue of non-exhaustion of
administrative remedies has been
rendered moot,
j. When there is no other plain, speedy,
adequate remedy,
Page 17 of 525
REMEDIAL LAW
k. When strong public interest is involved,
and
l. In quo warranto proceedings.
[Province of Aklan v. Jody King Construction
and Dev’t Corp., G.R. No. 197592 (2013)]
The doctrine of primary jurisdiction is corollary
to the doctrine of exhaustion of
administrative remedies in which courts
cannot determine a controversy involving a
question which is within the jurisdiction of the
administrative tribunal prior to the resolution of
that question by the administrative tribunal.
[International Service v. Greenpeace
Southeast Asia, G.R. No. 209271 (2015)]
v. Doctrine of Adherence of
Jurisdiction
Also known as doctrine of continuity of
jurisdiction [1 Riano 85-86, 2014 Bantam Ed.]
Once the jurisdiction of a court attaches, it
continues until the case is finally
terminated. The trial court cannot be ousted
therefrom by subsequent happenings or
events, although of a character that would have
prevented jurisdiction from attaching in the first
instance [Baritua v. Mercader, G.R. No.
136048 (2001)]
General Rule:
Where a court has already obtained and is
exercising jurisdiction over a controversy, its
jurisdiction to proceed to the final determination
of the case is not affected by new legislation
placing jurisdiction over such proceeding in
another tribunal [Southern Food v. Salas, G.R.
No. 56428 (1992)]
Exceptions:
a. Where there is an express provision in the
statute; and
b. The statute is clearly intended to apply to
actions pending before its enactment
[People v. Cawaling, G.R. No. 117970 (1998);
Southern Food v. Salas, G.R. No. 56428
(1992)]]
U.P. LAW BOC CIVIL PROCEDURE
vi. Objections to Jurisdiction over the
Subject Matter
When it appears from the pleadings or
evidence on record that the court has no
jurisdiction over the subject matter, the court
shall dismiss the claim. [Sec. 1, Rule 9]
The jurisdiction of a court over the subject
matter of the action is a matter of law and may
not be conferred by consent or agreement of
the parties. The lack of jurisdiction of a court
may be raised at any stage of the proceedings,
even on appeal [SEAFDEC v. NLRC, G.R. No.
86773 (1992)]
Under the Amended Rules, a motion to
dismiss is now a prohibited motion, but one of
the exceptions provided is the ground of lack
of jurisdiction over the subject matter of the
claim. [Sec. 12, Rule 15] Moreover, under the
Amended Rules, lack of jurisdiction over the
subject matter is also an affirmative defense
which can be raised in a defendant’s answer.
[Sec. 12(d), Rule 8 in relation to Sec. 5(b), Rule
6]
vii. Effect of Estoppel on Objection to
Jurisdiction
General rule:
Lack of jurisdiction over the subject matter may
be raised at any stage of the proceedings,
even for the first time on appeal. The reason for
this is that jurisdiction is conferred by law, and
lack of it affects the very authority of the court
to take cognizance of the action [Asiatrust
Development Bank v. First Aikka Development,
Inc., G.R. No. 179558 (2011)]
Exception: Tijam v. Sibonghanoy [G.R. No. L-
21450 (1968)] espoused the doctrine of
estoppel by laches, which held that a party
may be barred from questioning a court’s
jurisdiction after invoking the court’s authority
in order to secure affirmative relief against its
opponent, when laches would prevent the
issue of lack of jurisdiction from being raised for
the first time on appeal by a litigant whose
purpose is to annul everything done in a trial in
Page 18 of 525
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which it has actively participated [Francel
Realty Corp. v. Sycip, G.R. No. 154684 (2005)]
Note: Tijam v. Sibonghanoy must be
construed as an exception to the general
rule and applied only in the most exceptional
cases where the factual milieu is similar to that
in the said case [Figueroa v. People, G.R. No.
147406 (2008)]
Note: Even if Sec. 12(b), Rule 8 of the
Amended Rules provides that the failure to
raise an affirmative defense at the earliest
opportunity constitutes a waiver thereof, the
failure to raise lack of jurisdiction over the
subject matter as an affirmative defense in
the answer does not waive such defense.
The retention of Sec. 1, Rule 9 maintains the
status of lack of jurisdiction over the subject
matter as a non-waivable defense. As such,
the proper action if one failed to raise the
court’s lack of jurisdiction over the subject
matter in the answer would be to file a motion
to dismiss, which can be filed at any point
during the proceedings, subject to the doctrine
in Tijam.
c. Jurisdiction over the Issues
Jurisdiction over the issues is the power of
the court to try and decide the issues raised in
the pleadings of the parties [Reyes vs Diaz,
G.R. No. 48754 (1941)]
An issue is a disputed point or question to
which parties to an action have narrowed down
their several allegations and upon which they
are desirous of obtaining a decision [1 Riano
83, 2016 Bantam Ed., citing Black’s Law
Dictionary 745, 5th Ed.]
Generally, jurisdiction over the issues is
conferred and determined by
a. The pleadings of the parties, which
present the issues to be tried and
determine whether or not the issues are of
fact or law [Reyes v. Diaz, G.R. No. L-
48754 (1941)]
b. Stipulation of the parties as when, in the
pre-trial, the parties enter into stipulations
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

of facts or enter into agreement simplifying
the issues of the case [Sec. 2(c), Rule 18]
c. Waiver or failure to object to evidence on
a matter not raised in the pleadings. Here
the parties try with their express or implied
consent on issues not raised by the
pleadings. [Sec. 5, Rule 10]
[1 Riano 83-84, 2016 Bantam Ed.]
The rule is that a party is entitled only to such
relief consistent with and limited to that sought
by the pleadings or incidental thereto. A trial
court would be acting beyond its
jurisdiction if it grants relief to a party
beyond the scope of the pleadings.
[Gonzaga v. CA, G.R. No. 142037 (2004)]
d. Jurisdiction over the Res or
Property in Litigation
(2014); Perkins v. Dizon [G.R. No. 46631
(1939)]
Example: A land registration case is a
proceeding in rem. In such a case, actual
possession of the land by the court is not
necessary. It is enough that there is
constructive seizure of the land through
publication and service of notice. [1 Riano 89,
2016 Bantam Ed.]
Jurisprudence holds that if the action is in rem
or quasi in rem, jurisdiction over the person
of the defendant is not required. What is
required is jurisdiction over the res, although
summons must also be served upon the
defendant in order to satisfy the requirements
of due process. [Gomez vs CA, G.R. No.
127692 (2004)]

Jurisdiction over the res refers to the court’s 5. Distinguish: Error of

jurisdiction over the thing or the property which Jurisdiction and Error of
is the subject of the action [1 Riano 104, 2014
Bantam Ed.] Judgment

“Res,” in civil law is a “thing” or “object.” It is
everything that may form an object of rights, as
opposed to a “persona,” which is the subject of
rights. It includes object, subject matter or
status [1 Riano 86, 2016 Bantam Ed., citing
Black’s Law Dictionary 1172, 5th Ed.]
Error of Jurisdiction is one which occurs
when the court exercises a jurisdiction not
conferred upon it by law or when the court acts
in excess of its jurisdiction or with grave abuse
of discretion amounting to lack of jurisdiction.
[GSIS v. Oliza, G.R. No. 126874 (1999)]

How Acquired: Error of Judgment presupposes that the court

a. By seizure of the thing under legal process is vested with jurisdiction over the subject
whereby, it is brought into actual custody of matter but in the process of exercising such
the law (custodia legis); or jurisdiction, it committed mistakes in the
b. From the institution of legal proceedings appreciation of facts and the evidence leading
wherein, under special provisions of law, to an erroneous judgment. [1 Riano 58, 2016
the power of the court over the property is Bantam Ed]
recognized and made effective (potential
jurisdiction over the res) [Biaco v. Error of jurisdiction Error of judgment
Philippine Countryside Rural Bank, G.R. One which the court
One where the act
No. 161417 (2007); El Banco Español- may commit in the
complained of was:
Filipino v. Palanca, G.R. No. 11390 (1918)] exercise of its
(1) without
jurisdiction.
In order that the court may exercise power over jurisdiction or in
the res, it is not necessary that the court excess of jurisdiction
It includes errors of
should take actual custody of the property, [Cabrera v. Lapid,
procedure or
potential custody thereof being sufficient. G.R. No. 129098
mistakes in the
[Marcos, Jr. v. Republic, G.R. No. 189434 (2006)], or
court’s findings

Page 19 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

(2) with grave abuse [Banco Filipino plaintiff and court and the subject
of discretion Savings and defendant, or matter
amounting to lack of Mortgage Bank v. petitioner and
jurisdiction CA, G.R No. 132703 respondent
(2000)] May be changed by
Fixed by law and
Correctable only by the written
cannot be conferred
the extraordinary writ agreement of the
by the act or
of certiorari. [Cabrera parties or waived
agreement of the
v. Lapid, G.R. No. expressly or
parties
129098 (2006)] impliedly
The court may
Note: Sec. 8, Rule 40 Correctable by The court may not dismiss an action
allows an RTC with appeal. [Cabrera v. dismiss an action motu proprio in case
original jurisdiction Lapid, G.R. No. motu proprio for of lack of jurisdiction
over a case brought 129098 (2006)] improper venue over the subject
on appeal from a [Rudolf Lietz matter
lower court without Holdings, Inc. v. [Rudolf Lietz
jurisdiction over Registry of Deeds of Holdings, Inc. v.
subject matter to Parañaque City, Registry of Deeds of
decide the case on G.R. No. G.R. No. Parañaque City,
the merits. 133240 (2000)] G.R. No. G.R. No.
When there is an 133240 (2000)]
error of jurisdiction on Jurisdiction over the
the part of the court, subject matter may
the decision The objection to an be raised at any
rendered is a total improper venue stage of the
An erroneous
nullity and may be must be raised in the proceedings since it
judgment on the part
struck down at any answer as an is conferred by law,
of the court does not
time, even on appeal; affirmative defense. although a party may
render the judgment
EXCEPT when party [Sec 12, Rule 8] be barred from
void.
raising the issue is It is no longer a valid raising it on the
barred by estoppel. ground for a motion ground of estoppel
[Suntay v. Gocolay, to dismiss. [La’o v. Republic,
G.R. No. 144892 G.R. No. 160719
(2005)] (2006)]
[1 Riano 73-74, 2014 Bantam Ed.] [Nocum v. Tan, G.R. No. 145022 (2005)]
[1 Riano 196, 2014 Bantam Ed.]
6. Distinguish: Jurisdiction and
Venue 7. Jurisdiction over Small
Claims, Rules on Summary
Venue Jurisdiction Procedure, Brgy. Conciliation
Place where the
Authority to hear and
case is to be heard a. Cases Covered by Revised
determine a case
or tried Rules of Procedure for Small
Procedural Substantive Claims Cases
Establishes a Establishes a
relation between relation between the

Page 20 of 525
U.P. LAW BOC CIVIL PROCEDURE
The Revised Rules shall govern the procedure
in actions for payment of money where the
value of the claim does not exceed PHP
400,000 in cases filed before the MeTC, and
P300,000 in cases filed before the MCTC,
MTCS, and MTCC, exclusive of interest and
costs. [ February 26, 2019 Resolution in A.M.
No. 08-8-7-SC] [OCA Circular No. 45-2019]
Applicability
All actions which are purely civil in nature,
where the claim or relief prayed for by the
plaintiff is solely for payment or reimbursement
of sum of money.
The claim or demand may be:
1. For money owed under a contract of lease,
loan, services, sale, or mortgage,
2. For liquidated damages arising from
contracts, or
3. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417 of the LGC.
[Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016]
b. Cases Covered by Rules on
Summary Procedure
1. All cases of forcible entry and unlawful
detainer (FEUD), irrespective of the
amount of damages or unpaid rentals
sought to be recovered,
2. All other cases, except probate
proceedings, where the total amount of the
plaintiff‘s claim does not exceed
P100,000 outside Metro Manila or
P200,000 in Metro Manila, exclusive of
interest and costs
[Sec. 1, Revised Rule on Summary Procedure,
as amended by A.M. No. 02-11-09-SC]
c. Cases Covered by Barangay
Conciliation
The Lupon of each barangay shall have the
authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes.
Page 21 of 525
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Except:
1. Where one party is the government or any
subdivision or instrumentality thereof
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
P5,000
4. Offenses where there is no private
offended party
5. Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice
[Sec. 408, Local Government Code]
8. Any complaint by or against corporations,
partnerships, or juridical entities, since only
individuals shall be parties to barangay
conciliation proceedings either as
complainants or respondents, [Sec. 1, Rule
VI, Katarungang Pambarangay Rules; also
see SC Administrative Circular No. 14-93]
9. Disputes where urgent legal action is
necessary to prevent injustice from being
committed or further continued,
specifically:
a. A criminal case where the accused is
under police custody or detention,
b. A petition for habeas corpus by a
person illegally detained or deprived of
his liberty or one acting in his behalf,
c. Actions coupled with provisional
remedies, such as preliminary
injunction, attachment, replevin and
support pendente lite, or
d. Where the action may be barred by the
Statute of Limitations,
U.P. LAW BOC CIVIL PROCEDURE
10. Labor disputes or controversies arising
from employer-employee relationship,
11. Where the dispute arises from the CARL,
or
12. Actions to annul judgment upon a
compromise which may be directly filed in
court.
[Supreme Court Administrative Circular No. 14-
93]
Note: Barangay conciliation is a condition
precedent for filing a case. However, failure to
comply with a condition precedent is no longer
a ground for a motion to dismiss under the
Amended Rules. It is now included in the
enumerated Affirmative Defenses that may be
set out in the answer under Sec. 12(a), Rule 8.
Being a waivable defense, the failure to raise
non-compliance with condition precedent in the
answer constitutes a bar from raising such
defense later in the proceedings.
C. CIVIL PROCEDURE
1. General Provisions
a. Applicability
The Rules of Court shall apply in all the courts,
except as otherwise provided by the Supreme
Court. [Sec. 2, Rule 1]
Actions or Proceedings Governed by the
Rules of Court
1. Civil actions
2. Criminal actions
3. Special Proceedings
[Sec. 3, Rule 1]
Actions or Proceedings Not Governed by
the Rules of Court
1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings
However, the Rules may still apply to the
cases above by analogy or in suppletory
Page 22 of 525
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character and whenever practicable and
convenient. [Sec. 4, Rule 1]
b. Commencement of Civil Action
The filing of the original complaint in court
signifies the commencement of the civil action.
[Sec. 5, Rule 1]
c. Construction
The Rules shall be liberally construed in order
to promote a just, speedy, and inexpensive
disposition of every action and proceeding.
[Sec. 6, Rule 1]
A strict and rigid application of the rules of
procedure, especially on technical matters,
which tend to frustrate rather than promote
substantial justice, must be avoided. [Tiorosio-
Espinosa v. Hofileña-Europa, G.R. No.
185746 (2016)]
However, compliance with the procedural
rules is still the general rule, and
abandonment thereof should only be done in
the most exceptional circumstances. [Pilapil v.
Heirs of Briones, 514 SCRA 197 (2007)]
2. Actions
An action is a formal demand of one's right
in a court of justice in the manner
prescribed by the court or by the law. It is
the method of applying legal remedies
according to definite established rules.
[Natcher vs Court of Appeals, G.R. No. 133000
(2001)]
The determinative operative act, which
converts a claim into an action, is its filing with
a court of justice. [1 Riano 212, 2014 Bantam
Ed.]
a. Meaning of Ordinary Civil
Actions
An ordinary civil action is one which is
governed by the rules for ordinary civil actions.
[Sec. 3(a), par. 2, Rule 1]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Rules for Ordinary Civil Actions refer to Rule 2 or the prevention or right, or a particular
(Cause of Action) until Rule 61 (Provisional redress of a wrong fact [Sec. 3(c), Rule
Remedies). [Sec. 3(a), par. 1, 1]
● General Rules on Ordinary Civil Action - Rule 1]
Rule 2 to Rule 5
● Procedure in Trial Courts - Rule 6 to Rule The rules of ordinary civil actions have
39 suppletory application in special proceedings.
● Appeals - Rule 40 to Rule 43 [1 Riano 192, 2016 Bantam Ed.] (also see Sec.
● Procedure in the Court of Appeals - Rule 2, Rule 72)
44 to Rule 55
● Procedure in the SC - Rule 56
● Provisional Remedies - Rule 57 to Rule
e. Personal Actions and Real
61 Actions

b. 2. Meaning of Criminal Actions Real Action Personal Action

It is an action
One by which the State prosecutes a person affecting title to or It refers to all other
for an act or omission punishable by law [Sec. possession of real actions which are
3(b), Rule 1] property, or interest not real actions.
therein. [See Sec. 1, [Sec. 2, Rule 4]
Proceedings are to be regarded as criminal Rule 4]
when the purpose is primarily punishment, and
civil when the purpose is primarily Why distinction is important
compensatory or remedial. [People vs Godoy, In order to determine the proper venue of the
243 SCRA 64 (1995)] action. [Sec.1, Rule 4 in relation to Sec. 2, Rule
4]
c. Meaning of Special Civil
Actions For purposes of determining venue, the
question of whether or not the venue has been
A special civil action is one which is subject properly laid depends to a great extent on the
to the specific rules prescribed for a special civil kind of action (real or personal) presented by
action but also governed by the rules for the complaint. [PICOP v. Samson, G.R. No. L-
ordinary civil actions. [Sec. 3(a), par. 2, Rule 1] 30175 (1975)]

Rules 62 to 71 provide for special civil actions. Not every action involving real property is a
However, despite having particular rules which real action because the realty may only be
govern the special civil actions, the rules for incidental to the subject matter of the suit. In
ordinary civil action still apply. the cases of Heirs of Bautista v. Lindo [G.R.
No. 208232 (2014)] involving a complaint to
d. Distinguish: Civil Actions and redeem a parcel of land subject of a free patent
Special Proceedings and Olivarez Realty vs Castillo [G.R. No.
196251 (2014) involving an action for
Special rescission of a contract involving real property],
Civil Action the SC held that the conveyance of real
Proceeding
property was only incidental to the
A civil action is ne by A special determination of matters incapable of
which a party sues proceeding is a pecuniary estimation. The cases were deemed
another for the remedy by which a personal actions because the principal action
enforcement or party seeks to or remedy sought does not involve title to or
protection of a right, establish a status, a possession of real property.

Page 23 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

f. Local and Transitory Actions

Local Action Transitory Action

A transitory action is
A local action is one
one which may be
which has to be filed
filed in the residence
in the place where
of the plaintiff or
the property is
defendant, at the
located. [Sec.1, Rule
option of the plaintiff.
4]
[Sec. 2, Rule 4]
One that could be
One that could be
prosecuted in any
instituted in one
one of several
specific place.
places.
[Manila Railroad v.
[ManilaRailroad v.
Attorney-General,
Attorney-General,
G.R. No. L-6287
G.R. No. L-6287
(1911)]
(1911)]

g. Actions in rem, in personam,

and quasi in rem

Why distinction is important

● To determine the binding effect of a
decision the court may render over a
party, whether impleaded or not
[Paderanga v. Buissan, G.R. No. 49475
(1993)]
● To determine whether or not jurisdiction
over the person of the defendant is
required, and the type of summons to be
employed [1 Riano 206, 2016 Bantam Ed.]

Page 24 of 525
U.P. LAW BOC CIVIL PROCEDURE
Actions in rem, in personam, and quasi in rem
Action in rem
Action against the thing
or res itself, instead of
against the person
[Hernandez v. Rural
Definition
Bank of Lucena, Inc.
G.R. No. L-29791,
(1978)]
Not a prerequisite to
confer jurisdiction on
Jurisdiction the court, provided that
over the the latter has jurisdiction
person over the res [Lucas v.
Lucas, G.R. No. 190710
(2011)]
Jurisdiction over the res
is acquired either (a) by
the seizure of the
property under legal
process, whereby it is
brought into actual
How custody of the law, or
jurisdiction (b) as a result of the
is acquired institution of legal
proceedings, in which
the power of the court is
recognized and made
effective [Lucas v.
Lucas, G.R. No. 190710
(2011)]
The decision is binding
Binding as against the whole
effect of world [Paderanga v.
decisions Buissan, G.R. No.
49475 (1993)]
Petition for adoption,
annulment of marriage,
or correction of entries
Examples
in the birth certificate
[Lucas v. Lucas, G.R.
No. 190710 (2011)]
Action in personam
One which seeks to
enforce personal rights
and obligations brought
against the person.
[Paderanga v. Buissan,
GR. No. 49475 (1993)]
Necessary for the court to
validly try and decide the
case which can be made
through service of
summons [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Jurisdiction is acquired
through service of
summons as provided in
the Rule 14 or voluntary
appearance
Any judgment therein is
binding only upon the
parties properly
impleaded [Paderanga v.
Buissan, GR. No. 49475
(1993)]
Action for a sum of money;
action for damages [1
Riano 221, 2014 Bantam
Ed.]
Page 25 of 525
REMEDIAL LAW
Action quasi in rem
Names a person as
defendant, but its object is
to subject that person's
interest in a property to a
corresponding lien or
obligation [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Not a prerequisite to
confer jurisdiction on the
court, provided that the
latter has jurisdiction over
the res [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Jurisdiction over the res is
acquired either (a) by the
seizure of the property
under legal process,
whereby it is brought into
actual custody of the law,
or (b) as a result of the
institution of legal
proceedings, in which the
power of the court is
recognized and made
effective [Lucas v. Lucas,
G.R. No. 190710 (2011)]
Judgments therein are
binding only upon the
parties who joined in the
action [Macasaet v. Co,
G.R. No. 156759 (2013)]
Attachment, foreclosure of
mortgage, action for
partition and action for
accounting [1 Riano 227,
2014 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

3. Cause of Action who has committed a primary rights of the

delict or wrong plaintiff. [Racoma v.
a. Meaning of Cause of Action against him. Fortich, G.R. No. L-
29380 (1971)]
A cause of action is an act or omission by Right to sue as a
which a party violates a right of another [Sec. consequence of the The delict or wrong.
2, Rule 2] delict.
The cause of action
Without a cause of action, one cannot seek of the plaintiff is
judicial relief for a violation of one’s rights A right of action is determined by the
because every ordinary civil action must be
determined by averments in the
based on a cause of action [Sec. 1, Rule 2]
substantive law. pleading regarding
Bases of cause of action the acts committed
A cause of action stems from the sources of by the defendant.
obligations under Art. 1156 of the CC [1 Regalado 21, 2010 Ed.]
a. Law,
b. Contract, There can be no right of action without a
c. Quasi-contract, cause of action being first established.
d. Acts and omissions punishable by law, or [Español v. The Chairman and Members of the
e. Quasi-delict Board of Administrators, Philippine Veterans
[Sagrada Orden etc v. NACOCO, G.R. No. L- Administration, G.R. No. L-44616 (1985)]
3756 (1952)]
c. Distinguish: Failure of the
Elements of a cause of action Complaint to State a Cause of
a. Plaintiff’s legal right; Action and Lack of Cause of
b. Defendant’s correlative obligation to Action
respect plaintiff’s right; and
c. Defendant’s act/omission in violation of The cause of action must unmistakably be
plaintiff’s right alleged in the complaint, such that all the
[Ma-ao Sugar Central v. Barrios, G.R. No. L- elements required by substantive law must
1539 (1947)] clearly appear from a mere reading of the
complaint. [1 Riano 240, 2014 Bantam Ed.]
When cause of action must exist
A cause of action must exist at the time of the Failure to state a cause of action is no longer a
filing of the complaint – else, the case shall ground for a motion to dismiss under the
be dismissible for being a groundless suit. Amended Rules. It is, however, one of the
[Swagman Hotels and Travel v. CA, G.R. No. enumerated Affirmative Defenses that must be
161135 (2005), reiterating Surigao Mine set out in the Answer or else it is deemed
Exploration v. Harris, G.R. No. L-45543 (1939)] waived. [Sec 12, Rule 8]

b. Distinguish: Right of Action and The complaint must contain a concise

Cause of Action statement of the ultimate or essential facts
constituting the plaintiff’s cause of action. The
Right of Action Cause of Action focus is on sufficiency, not veracity, of the
The remedial right or The delict or material allegations. [Anchor Savings Bank v.
right to relief granted wrongful act or Furigay, G.R. No. 191178 (2013)]
by law to a party to omission committed
institute an action by the defendant in
against a person violation of the

Page 26 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

How to determine existence of cause of

Failure to State Lack of Cause of action
Cause of Action Action
Refers to the Refers to a situation General rule:
insufficiency of the where the evidence Determination shall be based only on facts
alleged in the complaint and from no other,
allegations in the failed to prove the
and the court cannot consider other matters
pleading. cause of action.
aliunde [Manaloto v. Veloso III, G.R. No.
The proper remedy 171635 (2010)]
when there is a
The proper remedy
failure to state a Exception:
when the complaint
cause of action is to Instances when the SC considered matters
is not based on a
allege the same as aside from the facts alleged in the complaint,
cause of action is to
an affirmative such as:
file a Demurrer of
defense in the a. Documents attached to the complaint
Evidence. [Rule 33] [Agrarian Reform Beneficiaries Association
Answer. [Sec. 12(4),
Rule 8] v. Nicolas, G.R. No. 168394 (2008)] – this
[Macaslang v. Zamora, G.R. No. 156375 case refers to actionable documents which
(2011)] by express provision of the ROC are
deemed part of the pleading.
b. Appended annexes, other pleadings, and
d. Test of Sufficiency of Cause of
admissions on record [Zepeda v. China
Action Banking Corp., G.R. No. 172175 (2006)] –
the jurisprudence establishing this
The test of sufficiency of a cause of action supposed exception ultimately points to
rests on whether, hypothetically admitting dismissals based on a lack of a cause of
the facts alleged in the complaint to be true, action, opposed to a failure of the
the court can render a valid judgment upon complaint to state a cause of action.
the same, in accordance with the prayer in the
complaint. [Heirs of Maramag v. Maramag,
e. Splitting a Single Cause of
G.R. No. 181132 (2009)]
Action and its Effects
However, there is no hypothetical admission
of the veracity of the allegations if The act of instituting two or more suits on
a. The falsity of the allegations is subject to the basis of the same cause of action [Sec.
judicial notice; 4, Rule 2], or splitting a single cause of action,
b. The allegations are legally impossible; is prohibited by the Rules. Such is referred to
c. The allegations refer to facts which are as “splitting a single cause of action”. A
inadmissible in evidence; party may not institute more than one suit for a
d. By the record or document in the pleading, single cause of action. [Sec. 3, Rule 2]
the allegations appear unfounded; or
e. There is evidence which has been Such violates the policy against multiplicity of
presented to the court by stipulation of the suits, whose primary objective is to avoid
parties or in the course of hearings related unduly burdening the dockets of the court
to the case [Dynamic Builders & Construction Co Inc v.
[Heirs of Maramag v. Maramag, G.R. No. Presbitero, Jr. G.R. No. 174202 (2015)]
181132 (2009)]

Page 27 of 525
U.P. LAW BOC CIVIL PROCEDURE
Tests to determine a “single” cause of
action
The tests to ascertain whether two suits relate
to a single or common cause of action are:
a. Whether the same evidence would support
and sustain both causes of action (Same
Evidence Test);
b. Whether the defenses in one case may be
used to substantiate the complaint in the
other; and
c. Whether the cause of action in the second
case existed at the time of filing of the first
complaint.
[Umale v. Canoga Park Development
Corp., G.R. No. 167246 (2011)]
Plaintiff's remedy if other reliefs not
included in the complaint: Amendment
In the event that a plaintiff has omitted to
include in the complaint one or several other
reliefs to which he may be entitled, the proper
remedy of the plaintiff is not to institute
another or several other actions – instead he
should move to amend the complaint to include
the omitted relief or reliefs [Bayang v. CA, G.R.
No. L-53564 (1987)]
Dismissal as effect of splitting of cause of
action
The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others [Sec. 4, Rule 2]
The defendant facing a complaint which is
infirm due to the plaintiff splitting causes of
action may either allege the infirmity as an
Affirmative Defense in his Answer [Sec. 5(b),
Rule 6], or file a Motion to Dismiss on the
following grounds:
a. There is another action pending between
the same parties for the same cause [Sec.
12 (a)(2), Rule 15], or
b. The cause of action is barred by a prior
judgment. [Sec. 12 (a)(3), Rule 15]
f. Joinder and Misjoinder of
Causes of Action
Joinder of causes of action
It is the assertion of as many causes of action
as a party may have against another in one
Page 28 of 525
REMEDIAL LAW
pleading alone. [Sec. 5, Rule 2] It is the process
of uniting two or more demands or rights of
action in one action. [1 Riano 187, 2016
Bantam Ed.]
Rationale
To avoid a multiplicity of suits and to expedite
disposition of litigation at minimum cost. [Ada
v. Baylon, G.R. No. 182435 (2012)]
Rule merely permissive
The rule however is purely permissive as there
is no positive provision of law or any rule of
jurisprudence which compels a party to join all
his causes of action and bring them at one and
the same time. [Nabus v. CA, G.R. No. 91670
(1991)]
Requisites
a. The plaintiff asserts numerous causes of
action in one pleading
b. The causes of action are against the
opposing party
c. The party joining the causes of action
complies with the rules on joinder of parties
under Sec 6, Rule 3, and
d. The joinder shall not include special civil
actions or actions governed by special
rules.
Where causes of action are between the same
parties but pertain to different venues or
jurisdictions, the joinder may be allowed in
the RTC provided one of the causes of action
are within that court’s jurisdiction and venue
lies therein.
[Sec. 5, Rule 2]
Totality Rule applies in Joinder of Actions
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
Misjoinder of causes of action
There is misjoinder of causes of action when
conditions for joinder under Section 5, Rule
2 are not met. [Perez v. Hermano, G.R. No.
147417 (2005)]
U.P. LAW BOC CIVIL PROCEDURE
An erroneously joined cause of action may, on
motion of a party or on the initiative of the court,
be severed and proceeded with separately.
Misjoinder is not a ground for dismissal of an
action [Sec. 6, Rule 2]
Subject to waiver
If there is no objection to the improper joinder
or the court did not motu proprio direct a
severance, then there exists no bar in the
simultaneous adjudication of all the
erroneously joined causes of action, as long as
the court trying the case has jurisdiction
over all of the causes of action therein
notwithstanding the misjoinder [Ada v. Baylon,
G.R. No. 182435 (2012)]
If the court has no jurisdiction to try the
misjoined action, then it must be severed.
Otherwise, adjudication rendered by the court
with respect to it would be a nullity. [Ada v.
Baylon, G.R. No. 182435 (2012)]
4. Parties to Civil Actions
Plaintiff
May refer to the claiming party, counter-
claimant, cross-claimant, or third-party plaintiff.
[Sec. 1, Rule 3]
Defendant
May refer to the original defending party, the
defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party
defendant. [Sec. 1, Rule 3]
Also includes an unwilling co-plaintiff - any
party who should be joined as plaintiff but
whose consent cannot be obtained. He may be
made a defendant and the reason therefore
shall be stated in the complaint. [Sec. 10, Rule
3]
Who may be parties
1. Natural persons [Sec. 1, Rule 3]
2. Juridical persons [Sec. 1, Rule 3]
a. The State and its political subdivisions
b. Other corporations, institutions and
entities for public interest or public
purpose, created by law, and
Page 29 of 525
REMEDIAL LAW
c. Corporations, partnerships, and
associations for private interest or
purpose to which the law grants a
judicial personality, separate and
distinct from that of each shareholder,
partner, or member
d. [Art. 44, Civil Code]
3. Entities authorized by law [Sec. 1, Rule
3]
a. A corporation by estoppel is precluded
from denying its existence, and the
members are liable as general partners
[Sec. 21, Corporation Code]
b. A partnership with capital of at least
P3,000 which fails to comply with the
registration requirements is liable as a
partnership to third persons [Arts.
1768, 1772, Civil Code]
c. The estate of a deceased person is a
juridical entity that has a personality of
its own [Nazareno v. C.A., G.R. No.
138842 (2000), citing Limjoco v.
Intestate Estate of Fragrante, G.R. No.
L-770 (1948)]
d. A legitimate labor union may sue and
be sued in its registered name [Art.
251(e), Labor Code]
e. The Roman Catholic Church may be a
party; as to its properties, the
Archbishop of diocese to which they
belong may be a party [Barlin v.
Ramirez, G.R. No. 2832 (1906);
Versoza v. Fernandez, G.R. No. 32276
(1930)]
f. A dissolved corporation may prosecute
and defend suits by or against it
provided that the suits (i) occur within
three (3) years after its dissolution, and
(ii) the suits are in connection with the
settlement and closure of its affairs
[Sec. 139, Revised Corporation Code]
4. [1 Riano 214, 2016 Bantam Ed.]
a. Two or more persons not organized as
an entity with juridical personality but
enter into a transaction
b. [Sec. 15, Rule 3]
Legal capacity to sue
Facts showing the capacity of a party to sue or
be sued, or the authority of a party to sue or be
U.P. LAW BOC CIVIL PROCEDURE
sued in a representative capacity, or the legal
existence of an organized association of
persons that is made a party, must be
averred. [Sec. 4, Rule 8]
a. Real Parties in Interest;
Indispensable Parties;
Representatives as Parties;
Necessary Parties; Indigent
Parties; Alternative Defendants
i. Real Parties in Interest
The party who stands to be benefited or injured
by the judgment in the suit, or the party entitled
to the avails of the suit [Sec. 2, Rule 3]
Nature of interest
The interest must be real, which is a present
and substantial interest, as distinguished from
a mere expectancy or a future, contingent,
subordinate, or consequential interest. [Rayo v.
Metrobank, G.R. No. 165142 (2007)]
It should be material and direct, as
distinguished from a mere incidental interest
[Mayor Rhustom Dagadag v. Tongnawa, G.R.
No. 161166-67 (2005)]
Why necessary to determine the real party
in interest
General rule: Every action must be prosecuted
or defended in the name of the real party in
interest.
Exception: Unless otherwise provided by law
or the Rules. [Sec. 2, Rule 3]
If the suit is not brought in the name of or
against the real party-in-interest, the defendant
must set out in his answer as an Affirmative
Defense the ground that the complaint “states
no cause of action.” [Sec 12, Rule 8]
Spouses as parties
General rule: Husband and wife shall sue and
be sued jointly.
Exception: As provided by law.
[Sec. 4, Rule 3]
Page 30 of 525
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Remedies for the Plaintiff
1. Amendment of pleadings [Alonso v.
Villamor, G.R. No. L-2352 (1910)]; or
2. Complaint may be deemed amended to
include the real party-in-interest [Balquidra
v. CFI Capiz, G.R. No. L-40490 (1977)]
When real party-in-interest bound despite
not being formally impleaded
As an exception, the real litigant may be held
bound as a party even if not formally
impleaded, provided he had his day in court.
[Albert v. University Publishing Co., G.R. No. L-
9300 (1958)]
ii. Indispensable Parties
A real party-in-interest without whom no final
determination can be had of an action [Sec. 7,
Rule 3]
An indispensable party is one whose interest
in the subject matter of the suit and the relief
sought are so inextricably intertwined with the
other parties that his legal presence as a party
to the proceeding is an absolute necessity.
[Benedicto-Munoz v. Cacho-Olivares, G.R. No.
179121 (2015)]
A party is not indispensable if his interest in
the controversy or subject matter is distinct and
divisible from the interest of the other parties
and will not necessarily be prejudiced by a
judgment which does not complete justice to
the parties in court. [Benedicto-Munoz v.
Cacho-Olivares, G.R. No. 179121 (2015)]
iii. Representatives as Parties
A representative may be a trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law or
the ROC. [Sec. 3, Rule 3]
Beneficiary to be included in the title of the
case
Where the action is allowed to be prosecuted
or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

shall be deemed to be the real party in interest. v. Indigent Parties

[Sec. 3, Rule 3]
Indigent Parties Indigent Litigants
Minor or incompetent person as party [ Rule 21] [Sec 19, Rule 141]
A minor or a person alleged to be incompetent One whose gross
may sue or be sued, with the assistance of his income and that of
father, mother, guardian, or if he has none, a their immediate
guardian ad litem. [Sec. 5, Rule 3] One who has no
family do not exceed
money or property
an amount double
iv. Necessary Parties sufficient and
the monthly
available for food,
A necessary party is not one who is minimum wage of an
shelter, and basic
indispensable but, rather, one who ought to be employee, and who
necessities [Sec. 21,
joined as a party if complete relief is to be does not own real
Rule 3]
accorded as to those already parties, or for a property with a fair
complete determination or settlement of the market value of more
claim subject of the action. [Sec. 8, Rule 3] than PHP300,000
To be entitled to the
Indispensable exemption herein
Necessary Parties
Parties provided, the litigant
Must be joined May be joined shall execute an
under any and all whenever possible affidavit that he and
conditions [Borlasa [Borlasa v. Polistico, his immediate family
v. Polistico, G.R. No. G.R. No. 22909 do not earn a gross
22909 (1925)] (1925)] income above
Presence is Presence is not mentioned, nor they
mandatory, he must mandatory because own any real
be joined because his interest is property with the
the court cannot separable from that assessed value
proceed without him of the indispensable aforementioned,
[1 Riano 281, 2014 party. [1 Riano 281, supported by an
Bantam Ed.] 2014 Bantam Ed.] affidavit of a
Final decree can be disinterested
had in a case even person attesting to
without a necessary the truth of the
No final
party. [Chua v. litigant’s affidavit
determination can be
Torres, G.R. No. 1. Exemption from 1. Exempt from the
had of a case without
151900 (2005); payment of payment of legal
his presence.
Seno v. Mangubat, docket and other fees.
G.R. No. L-44339 lawful fees, and
(1987)] of transcripts of 2. The legal fees
stenographic shall be a lien on
notes which the any judgment
court may order rendered in the case
to be furnished favorably to the
him indigent litigant,
2. Amount of the unless the court
docket and other otherwise provides

Page 31 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

lawful fees shall inconsistent with a right to relief against the

be a lien on any other [Sec. 13, Rule 3]
judgment
rendered in the b. Compulsory and Permissive
case favorable to Joinder of Parties
the indigent,
unless the court General Rule:
otherwise The joinder of parties is permissive
provides
Exception:
Consequence if
It is compulsory when the one involved is an
party not actually indispensable party.
indigent: Any falsity in the [Crisologo v. JEWN Agro-Industrial
The proper docket affidavit of a litigant Corporation, G.R. No. 196894 (2014)]
and other lawful fees or a disinterested
shall be assessed party shall be i. Compulsory Joinder
and collected by the sufficient cause to
clerk of court. dismiss the Parties in interest without whom no final
If payment is not complaint or action determination can be had of an action (i.e.
made within the time or to strike out the indispensable parties) shall be joined either as
fixed by the court, pleading of that plaintiffs or defendants. [Sec. 7, Rule 3]
execution shall issue party, without
Effect of non-joinder of indispensable
or the payment prejudice to
parties
thereof, without whatever criminal
The absence of an indispensable party renders
prejudice to such liability may have all subsequent actions of the trial court null
other sanctions as been incurred and void for want of authority to act, not only
the court may as to the absent parties but even as to those
impose present. [Moldes v. Villanueva, G.R. No.
161955 (2012)]
Summary of rules for indigent litigants
If the applicant for exemption meets the salary Failure to implead an indispensable party is not
and property requirements under Sec. 19 of a ground for dismissal of an action, as the
Rule 141, then the grant of the application is remedy in such a case is to implead the
mandatory. party claimed to be indispensable,
considering that the parties may be added by
On the other hand, when the application does order of the court, on motion of the party or on
not satisfy one or both requirements, then the its own initiative at any stage of the action.
application should not be denied outright; [Galido v. Magrare, G.R. No. 206584 (2016)]
instead, the court should apply the "indigency
test" under Sec. 21, Rule 3 and use its sound Effect of misjoinder or non-joinder of
discretion in determining the merits of the parties; when ordered by the court
prayer for exemption. [Sps. Algura v. City of It is when the order of the court to implead
Naga, G.R. No. 150135 (2006)] an indispensable party goes unheeded that
the case may be dismissed. The court has
vi. Alternative Defendants authority to dismiss a complaint due to the fault
of the plaintiff when he does not comply with
Where the plaintiff is uncertain against whom any order of the court [Plasabas v. CA, G.R.
of several persons he is entitled to relief, he No. 166519 (2009)]
may join any or all of them in the alternative,
although a right to relief against one may be

Page 32 of 525
U.P. LAW BOC CIVIL PROCEDURE
Effect of non-joinder of necessary parties
Non-joinder of a necessary party does not
prevent the court from proceeding in the action.
The judgment rendered therein shall not
prejudice the rights of such necessary party
[Sec. 9, par. 3, Rule 3]
Remedy in case of non-joinder of necessary
parties
When a pleading asserting a claim omits to join
a necessary party, the pleader must:
1. Set forth the name of the necessary party,
if known, and
2. State the reason why he is omitted
[Sec. 9, par. 1, Rule 3]
Should the court find the reason for the non-
joinder of a necessary party unmeritorious, it
may order the inclusion of such necessary
party, if jurisdiction over his person may be
obtained. Failure to comply with such order
without justifiable cause shall be deemed a
waiver of the claim against such party [Sec.
9, pars. 1-2, Rule 3]
ii. Permissive Joinder
All persons in whom or against whom any right
to relief in respect to or arising out of the same
transaction or series of transactions is alleged
to exist, whether jointly, severally, or in the
alternative, may except as otherwise provided
in these Rules, join as plaintiffs or be joined
as defendants in one complaint, where any
question of law or fact common to all such
plaintiffs or to all such defendants may arise in
the action; but the court may make such orders
as may be just to prevent any plaintiff or
defendant from being embarrassed or put to
expense in connection with any proceedings in
which he may have no interest [Sec. 6, Rule 3]
Requisites
1. The right to relief arises out of the same
transaction or series of transactions;
2. There is a question of law or fact common
to all the plaintiffs or defendants; and
3. Such joinder is not otherwise proscribed by
the provisions of the ROC on jurisdiction
and venue
[1 Regalado 91, 2010 Ed.]
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A party may in one pleading assert, in the
alternative or otherwise, as many causes of
action as he may have against an opposing
party. One of the conditions for such joinder
of causes of action is that the party joining the
causes of action shall comply with the rules
on joinder of parties. [Sec. 5, Rule 2]
iii. Misjoinder and Non-Joinder of
Parties
Misjoinder
When one is made a party to the action
although he should not be impleaded. [1 Riano
285, 2014 Bantam Ed.]
Non-joinder
When one is supposed to be joined but is not
impleaded in the action. [1 Riano 285, 2014
Bantam Ed.]
Effect of misjoinder or non-joinder of
parties
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action [Sec. 11,
Rule 3]
Objections to defects in parties
Objections should be made at the earliest
opportunity. Thus, objections to misjoinder
cannot be raised for the first time on appeal.
[Lapanday Agricultural & Development
Corporation v. Estita, G.R. No. 162109 (2005)]
iv. Class Suit
Requisites
a. Subject matter of the controversy is one of
common or general interest to many
persons;
b. The persons are so numerous that it is
impracticable to join them all as parties;
c. The court finds a number of them
sufficiently numerous and representative of
the class as to fully protect the interests of
all concerned; and
d. The representative sues or defends for the
benefit of all.
[Sec. 12, Rule 3]
U.P. LAW BOC CIVIL PROCEDURE
Only general interest in the subject matter
of litigation required
A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation [Mathay v. Consolidated Bank & Trust
Company, G.R. No. L-23136 (1974)]
Right to intervene
In a class suit, any party in interest shall have
the right to intervene to protect his individual
interest [Sec. 12, Rule 3]
No dismissal upon the instance of plaintiff
or due to compromise
A class suit shall not be dismissed or
compromised without the approval of the court
[Sec. 2, Rule 17]
Examples of Class Suits
1. Taxpayer’s suit
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi [1 Regalado 99, 2010 Ed.]
2. Derivative suit
A derivative suit is an action brought by a
stockholder on behalf of the corporation to
enforce corporate rights against the
corporation’s directors, officers or other
insiders. Under the Revised Corporation Code,
the directors or officers, as provided under the
by-laws, have the right to decide whether or not
a corporation should sue. Since these directors
or officers will never be willing to sue
themselves, or impugn their wrongful or
fraudulent decisions, stockholders are
permitted by law to bring an action in the
name of the corporation to hold these
directors and officers accountable. In derivative
suits, the real party in interest is the
corporation, while the stockholder is a mere
nominal party [Ang v. Ang, G.R. No. 201675
(2013)]
Not a Class Suit
There is no class suit in an action filed by
associations of sugar planters to recover
Page 34 of 525
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damages on behalf of individual planters for an
allegedly libelous article in an international
magazine. There is no common or general
interest in the reputation of a specific individual.
Each of the sugar planters has a separate and
distinct reputation in the community not shared
by the others [Newsweek, Inc. v. Intermediate
Appellate Court, G.R. No. 63559 (1986)]
There is no class suit in an action for damages
filed by the relatives of the fatalities in a plane
crash. There is no common or general interest
in the injuries or death of all passengers in the
plane. Each has a distinct and separate
interest which must be proven individually [1
Riano 244, 2016 Bantam Ed.]
v. Suits Against Entities Without
Juridical Personality
Requisites
a. There are 2 or more persons not organized
as a juridical entity; and
b. They enter into a transaction. [Sec. 15,
Rule 3]
Persons associated in an entity without juridical
personality may be sued under the name by
which they are generally or commonly
known. [Sec. 15, Rule 3]
Note: The authority to be a party under Sec. 15,
Rule 3 is confined only to being a defendant
and not as a plaintiff. This is evident from the
words, “they may be used” [1 Riano 265, 2014
Bantam Ed.]
When persons associated in an entity without
juridical personality are sued, the service of
summons may be effected upon all the
defendants by serving upon any of them, or
upon the person in charge of the office or place
of business maintained under such name.
[Sec. 7, Rule 14]
vi. Effect of Death of Party Litigant
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Duty of counsel upon death of client
a. Inform court of such fact within 30 days
after the death; and
b. Give the name and address of the legal
representative. [Sec. 16, Rule 3]
Effect of failure to comply
Failure to comply is a ground for disciplinary
action [Sec. 16, Rule 3]
Court may order the opposing party, within a
specific time, to procure the appointment of an
administrator or executor of the estate in the ff.
cases
a. No legal representative is named; or
b. The one so named fails to appear within the
specified period. [Sec. 16, Rule 3]
Substitution

Action of court upon notice of death Summons not necessary

Upon receipt of notice, the court shall The substitute defendant need not be
determine if the claim is extinguished by such summoned. The order of substitution shall
death. be served upon the parties substituted for the
a. Claim does not survive: substitution court to acquire jurisdiction over the substitute
would not be ordered party [Ferreria v. Vda de Gonzales, G.R. No. L-
b. Claim survives: the court shall order the 11567 (1986)]
legal representative of the deceased to
appear and be substituted for him within 30 Effect of failure to order substitution
days [Sec. 16, Rule 3] Results in failure to acquire jurisdiction over
[1 Riano 286, 2014 Bantam Ed., suggesting the representative or heirs of the deceased
Aguas v. Llemos, G.R. No. L-18107 (1962)] party. Consequently, any judgment rendered
against such deceased party shall be null and
Survival of Action void for lack of jurisdiction over the persons of
Survival depends on the nature of the action the legal representative or of the heirs upon
and the damage sought. whom the trial and the judgment would be
binding [The Heirs of Vda. De Haberer v. Court
Actions that do not of Appeals, et al., G.R. Nos. L-42699 to L-2709
Actions that survive
survive (1981)]
The wrong complained
The injury complained
of affects primarily and Rule in case of death or separation of party
of is personal to the
principally property and who is a public officer
person
property rights The action may be continued or maintained by
Property and property or against his successor [Sec. 17, Rule 3]
Injuries to the person
rights affected are Requisites:
are merely incidental
incidental a. A public officer is a party to an action in his
[Cruz v. Cruz, G.R. No.
[Cruz v. Cruz, G.R. No. official capacity;
173292 (2010)]
173292 (2010)] b. During the pendency of the action, he dies,
E.g. Actions to recover resigns, or otherwise ceases to hold office;
real and personal c. Within 30 days after the successor takes
property from the office or such time as may be granted by
estate; actions to E.g. Action for support, the court, any party shows to the
enforce a lien thereon; annulment of marriage, satisfaction of the court, that
and actions to recover legal separation • there is a substantial need for
damages for an injury [1 Riano 291, 2014 continuing or maintaining such action;
to person or property Bantam Ed.]
and
[Sec. 1, Rule 88; Aguas
• the successor adopts or continues his
v. Llemos, G.R. No. L-
predecessor’s action, or threatens to
18107 (1962)]
do so
d. Before a substitution is made, the party or
officer to be affected shall be given

Page 35 of 525
U.P. LAW BOC CIVIL PROCEDURE
reasonable notice of the application
therefor and accorded an opportunity to be
heard UNLESS he expressly assents
thereto
[Sec. 17, Rule 3]
Action on contractual money claims
Shall not be dismissed but shall instead be
allowed to continue until entry of final judgment
[Sec. 20, Rule 3]
Requisites
a. Action is for recovery of money,
b. The claim arose from express or implied
contract, and
c. Defendant dies before the entry of final
judgment in the court in which the action
was pending. [Sec. 20, Rule 3]
Effect
If the plaintiff obtains a favorable judgment,
said judgment shall be enforced following the
procedure provided for in the ROC for
prosecuting claims against the estate of a
deceased person [Sec. 20, Rule 3] He/She is
not supposed to file a motion for the issuance
of an order and writ of execution of the
judgment [1 Riano 201, 2014 Bantam Ed.]
5. Venue
Venue refers to the place where a civil action
may be tried; in civil cases, it essentially
concerns a rule of procedure which looks
primarily at the convenience of the litigants.
[Gumabon, et al. v. Larin, G.R. No. 142523,
(2001)]
In civil cases, it is a procedural matter and not
jurisdictional, as compared to criminal cases,
where the venue is jurisdictional.
Venue relates only to the place of trial or the
geographical location in which an action or
proceeding should be brought. It is intended to
accord convenience to the parties and does not
equate to the jurisdiction of the court. [Dolot v.
Paje, G.R. 199199 (2013)]
Choosing the venue of an action is not left
entirely to a plaintiff’s caprice; the matter is
Page 36 of 525
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regulated by the ROC. [Ang v. Sps. Ang, G.R.
No. 186993 (2012)]
On dismissal based on improper venue
Improper venue is no longer one of the
grounds for a motion to dismiss under the
Amended Rules. However, the ground of the
venue being improperly laid is one of those that
may be set as an Affirmative Defense in the
answer. The failure to raise the affirmative
defense in the answer will constitute a waiver
of such. [Sec 12, Rule 8]
However, the court may make a motu proprio
dismissal for improper venue, inter alia, in
actions covered by the Rules on Summary
Procedure [Sec. 4], Rule of Procedure for
Small Claims cases [Sec. 9], and in ejectment
cases. [Sec. 5, Rule 70]
a. Venue of Real Actions
Real actions shall be commenced and tried in
the proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof is situated.
Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real
property involved, or a portion thereof, is
situated.
[Sec. 1, Rule 4]
The rule, in its simplified form, means that if the
action is real, the action is local, as opposed
to transitory, and the venue is the place where
the real property involved, or any portion
thereof, is situated. [1 Riano 151, 2016 Bantam
Ed.]
Where the subject-matter of the action
involves various parcels of land situated in
different provinces, the venue is determined
by the singularity or plurality of the transactions
involving said parcels of land. Thus, where said
parcels are the objects of one and the same
transaction, the venue is in the court of any of
the provinces wherein a parcel of land is
U.P. LAW BOC CIVIL PROCEDURE
situated. [1 Regalado 118, 2010 Ed., citing El
Hogar Filipino v. Seva, G.R. No. 36627 (1932)]
b. Venue of Personal Actions
All other actions may be commenced and tried,
at the plaintiff’s election:
a. Where the plaintiff or any of the principal
plaintiffs resides, or
b. Where the defendant or any of the principal
defendants resides, or
c. In case of a non-resident defendant, where
he may be found. [Sec. 2, Rule 4]
The plaintiff or the defendant must be
residents of the place where the action has
been instituted at the time the action is
commenced [Ang v. Sps. Ang, G.R. No.
186993 (2012)]
Definition of residence
The term “resides” as employed in the rule
means the place of abode, whether
permanent or temporary, of the plaintiff or
defendant, as distinguished from “domicile”
which denotes a fixed permanent residence to
which, when absent, one has the intention of
returning. [Dangwa Transportation Company v.
Sarmiento, G.R. No. L-22795 (1977)]
The residence of a person is his personal,
actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency [Boleyley v. Villanueva, G.R. No.
128734 (1999)]
A corporation cannot be allowed to file
personal actions in a place other than its
principal place of business unless such
place is also the residence of a co-plaintiff or
defendant. [Davao Light v. CA, G.R. No.
111685 (2001)]
Page 37 of 525
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c. Venue of Actions Against Non-
Residents
Non-resident found in the Philippines
a. Personal action: where the nonresident
defendant may be found, as authorized by
Sec. 2, Rule 4, but with an additional
alternative venue, i.e., the residence of any
of the principal plaintiffs, pursuant to Secs.
2 and 3, Rule 4. [1 Regalado 121, 2010
Ed.]
b. Real action: in the proper court which has
jurisdiction over the area wherein the real
property involved, or a portion thereof is
situated. [Sec. 1, Rule 4]
Non-resident not found in the Philippines,
and the action affects:
a. Personal status of plaintiff – where
plaintiff resides, or
b. Property of defendant in the Philippines
– where the property, or any portion
thereof, is situated or found [Sec. 3, Rule 4]
d. When the Rules on Venue Do
Not Apply
a. Cases where a specific rule or law provides
otherwise; examples:
1. Quo warranto proceeding commenced
by the Solicitor General, [Sec. 7, Rule
66]
• The action may be brought in the
Supreme Court, the Court of
Appeals, or in a Regional Trial
Court in the City of Manila.
2. Petition for a continuing writ of
mandamus, and [Sec. 2, Rule 8, Rules
of Procedure for Environmental Cases]
• The petition shall be filed with the
Regional Trial Court exercising
jurisdiction over the territory where
the actionable neglect or omission
occurred or with the Court of
Appeals or the Supreme Court.
3. Civil and criminal action for damages in
written defamation. [Art. 360, RPC]
• Note that for written defamations,
the default venue would be the
place where the libelous article is
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

first published or where any of the unjustly denies a party a fair opportunity to
offended parties reside file suit in the place designated by the Rules.
• In case that the offended party is a The court shall take into consideration the
public officer, the proper venue economic conditions of the parties, the
would be either where he holds practical need to avoid numerous suits filed
office at the time of the commission against the defendant in various parts of the
of the crime, or the place where the country and the peculiar circumstances of the
libelous article is first published case [1 Regalado 124-125, 2010 Ed., citing
[Art. 360, RPC] Hoechst Philippines v. Torres, G.R. No. L-
44351 (1978)]
b. Parties have validly agreed in writing before
the filing of an action on the exclusive venue A complaint directly assailing the validity of
thereof. the written instrument itself should not be
[Sec. 4, Rule 4] bound by the exclusive venue stipulation
contained therein and should be filed in
e. Effects of Stipulations on accordance with the general rules on
Venue venue. [Briones v. CA and Cash Asia, G.R. No.
204444 (2015)]
The parties may stipulate on the venue as long
as the agreement is: 6. Pleadings
a. In writing,
b. Made before the filing of the action, and Pleadings are the written statements of the
c. Exclusive as to the venue respective claims and defenses of the parties,
submitted to the court for appropriate judgment
Types of stipulations on venue [Sec. 1, Rule 6]
a. Restrictive: suit may be filed only in the
place agreed upon Pleadings v. Motions
b. Permissive: parties may file their suit not Pleadings Motion
only in the place agreed upon but also in Purpose is to
the places fixed by the rules Application for
submit a claim
[Briones v. CA and Cash Asia, G.R. No. relief other
or defense for
204444 (2015)] Purpose than by a
appropriate
pleading [Sec.
Requirement to be binding judgment [Sec.
1, Rule 15]
To be binding, the parties must have agreed 1, Rule 6]
on the exclusive nature of the venue of any Judgment,
prospective action between them. The Other reliefs
which by its
agreement of parties must be restrictive and Relief that are not
character
not permissive [1 Regalado 124, 2010 Ed.] Sought included in a
finally disposes
judgment
In the absence of qualifying or restrictive of the case
words (e.g. “only/solely/exclusively in such [1 Riano 339, 2005 Ed.]
court”), venue stipulation is merely
permissive; that is, the stipulated venue is in Ultimate facts are essential facts constituting
addition to the venue provided for in the rules the plaintiff’s cause of action. A fact is essential
[Polytrade Corp. v. Blanco, G.R. No. L-27033 if it cannot be stricken out without leaving the
(1969)] statement of the cause of action insufficient
[Remitere v. Montinola, G.R. No. L-19751
When stipulation may be disregarded (1966)].
The court may declare agreements on venue
as contrary to public policy if such stipulation

Page 38 of 525
U.P. LAW BOC CIVIL PROCEDURE
Prior to the Amended Rules, evidentiary facts
were supposed to be omitted from pleadings,
as these matters should be presented during
trial. However, the contents of pleadings are no
longer limited to ultimate facts since under Sec.
6, Rule 7, the witnesses, summaries of their
testimonies, their judicial affidavits, and
documentary and object evidence should
already be included in the pleading. Likewise,
Sec. 1 of Rule 8 also states that every pleading
must contain the ultimate facts, including the
evidence on which the party pleading relies.
a. Kinds of pleadings and when
they should be filed
i. Complaint
The complaint is the pleading alleging the
plaintiff’s or claiming party’s cause or causes of
action. [Sec. 3, Rule 6]
Note: Counterclaims, cross-claims, third-party
complaints, and complaints-in-intervention are
kinds of complaints. [Sec. 2, Rule 6]
Function
1. To inform the defendant clearly and
definitely of the claims made against him so
that he may be prepared to meet the issues
at trial.
2. To inform the defendant of all material facts
on which the plaintiff relies to support his
demand.
3. To state the theory of a cause of action
which forms the basis of the plaintiff's claim
of liability [Tantuico v. Republic, G.R. No.
89114 (1991)]
Facts alleged in the complaint are judicial
admissions that bind the plaintiff and may be
the basis to dismiss the complaint [Luzon
Development Bank v. Conquilla, G.R. No.
163338 (2005)].
Allegations of the complaint determine the
nature of the cause of action and the body or
court which has jurisdiction over the action
[Ching vs Subic Bay Golf and Country Club,
Inc, G.R. No. 174353 (2014)]
Page 39 of 525
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ii. Answer
An answer is a pleading in which a defending
party sets forth his or her defenses. [Secs. 2
and 4, Rule 6]
1. Negative Defenses
A negative defense is the specific denial of
the material fact or facts alleged in the pleading
of the claimant essential to his or her cause or
causes of action. [Sec. 5 (a), Rule 6]
Note: A general denial is considered as an
admission. [1 Riano 293, 2016 Bantam Ed.]
There are three kinds of specific denials,
namely:
1. Absolute Denials - made when the
defendant specifies each material
allegation which he does not admit and,
whenever practicable, sets forth the
substance of the matters upon which he
relies to support his denial. [PBCOM v. Go,
G.R. No. 175514 (2011)]
2. Partial Denials - made when the
defendant does not make a total denial of
the material allegations, but denies only a
part of the averment. Here, he specifies
which part of the truth he admits and
likewise denies. [1 Riano 269, 2016
Bantam Ed.]
3. Denial through Disavowal of Knowledge
- made when the defendant alleges he “is
without knowledge or information sufficient
to form a belief as to the truth of the
material averments in the complaint”.
[Warner Barnes v. Reyes, 103 Phil. 662
(1958)]
2. Negative Pregnant
A denial, pregnant with the admission of the
substantial facts in the pleading responded to
which are not squarely denied. It is in effect an
admission of the averment it is directed to.
[Philamgen v. Sweet Lines, G.R. No. 87434
(1993)]
A negative pregnant does not qualify as a
specific denial. It is conceded to be actually an
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

admission. It refers to a denial which implies Compulsory Permissive

its affirmative opposite by seeming to deny only Counterclaim Counterclaim
a qualification or an incidental aspect of the A compulsory
allegation but not the main allegation itself [1
counterclaim, which
Riano 358, 2014 Bantam Ed.]
a party has at the
Not subject to the
Examples: When the defense alleges “I have time the answer is
rule on compulsory
never borrowed money from the plaintiff from filed, shall be
counterclaims.
2011 to 2013,” such may imply that there was contained in the
borrowing of money at other times. [1 Riano Hence, it may be set
answer [Sec. 8, Rule
297, 2016 Bantam Ed.] up as an
11] because a
independent action
compulsory
3. Affirmative Defenses and will not be
counterclaim not
barred if not
An affirmative defense is an allegation of a raised in the same
contained in an
new matter which, while hypothetically action shall be
admitting the material allegations in the answer to the
barred, unless
pleading of the claimant, would nevertheless complaint.
otherwise allowed
prevent or bar recovery by him or her.
by these rules.
The affirmative defenses include fraud, statute [Sec. 7, Rule 6]
of limitations, release, payment, illegality, Not an initiatory
Initiatory pleading
statute of frauds, estoppel, former recovery, pleading
discharge in bankruptcy, and any other matter Should be
by way of confession and avoidance. accompanied by a
certification against
Affirmative defenses may also include grounds
for the dismissal of a complaint, specifically: forum shopping and,
1. That the court has no jurisdiction over the Said certifications whenever required
subject matter are not required by law, also a
2. That there is another action pending certificate to file
between the same parties for the same action issued by the
cause (lis pendens), or Lupong
3. That the action is barred by a prior
Tagapamayapa
judgment. [Sec. 5 (b), Rule 6]
Must be answered
Note: The foregoing three (3) grounds need not by the party against
Failure to answer a
be included in the answer due to the use of the whom it is
compulsory
word “may”. Also note that these grounds for interposed,
dismissal (in addition to statute of limitations) counterclaim is not a
otherwise he may be
may still be raised at any time since they are cause for a default
declared in default
not waivable. [Sec. 1, Rule 9 in relation to Sec. declaration.
12 (a), Rule 15] as to the
counterclaim
Further discussion on affirmative defenses [1 Riano 385-387, 2014 Bantam Ed.]
under 4. Allegations in a Pleading.
How raised
iii. Counterclaims 1. By including it in the Answer
• A compulsory counterclaim or a cross-
Any claim which a defending party may have claim that a defending party has at the
against an opposing party [Sec. 6, Rule 6] time he or she files his or her answer

Page 40 of 525
U.P. LAW BOC CIVIL PROCEDURE
shall be contained therein. [Rule 11,
Sec. 8]
2. By filing after the Answer
• Omitted Compulsory Counterclaim -
If a counterclaim already existed at the
time of the filing of the answer and the
defendant fails to raise it, it shall
generally be barred. [Sec. 7, Rule 6]
However, an exception to this would be
a counterclaim by amendment before
judgment, when the counterclaim was
not set up due to oversight,
inadvertence, or excusable neglect.
[Sec. 10, Rule 11]
• Compulsory Counterclaim arising
after Answer - A counterclaim, which
either matured or was acquired by a
party after serving his answer may,
with permission of the court, be
presented as a counterclaim by
supplemental pleading before
judgment. [Sec. 9, Rule 11]
1. Compulsory
Requisites
1. It arises out of, or is connected with the
transaction or occurrence constituting the
subject matter of the opposing party's
claim,
2. It does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction, and
3. It must be within the jurisdiction of the court
both as to the amount and the
nature, except that in an original action
before the RTC, the counter-claim may be
considered compulsory regardless of the
amount. [Sec. 7, Rule 6]
A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared
in default, principally because the issues raised
in the counterclaim are deemed automatically
joined by the allegations in the complaint [Gojo
v. Goyala, G.R. No. L-26768 (1970)].
The filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
Page 41 of 525
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incompatible remedies. If he files a motion to
dismiss, he will lose his counterclaim. But if he
opts to set up his counterclaim, he may still
plead his ground for dismissal as an affirmative
defense in his answer. [Financial Building
Corp. v. Forbes Park Association, G.R. No.
133119 (2000)]
On amounts
1. In an original action before the RTC, the
counterclaim may be considered
compulsory regardless of the amount.
[Sec. 7, Rule 6]
2. If a counterclaim is filed in the MTC in
excess of its jurisdictional limits, the excess
is considered waived. [Agustin v. Bacalan,
G.R. No. L-46000 (1985)]
2. Permissive
A counterclaim is permissive if it does not
arise out of, nor is necessarily connected with,
the subject matter of the opposing party’s
claim. This is not barred even if not set up in
the action. [1 Herrera 686, 2007 Ed.] Basically,
a permissive counterclaim is one where any of
the aforementioned requirements of a
compulsory counterclaim are missing. [1 Riano
320, 2016 Bantam Ed.]
The rule in a permissive counterclaim is that for
the trial court to acquire jurisdiction, the
counterclaimant is bound to pay the prescribed
docket fees. [1 Riano 387, 2014 Bantam Ed.,
citing GSIS v. Heirs of Caballero, G.R. No.
158090 (2010)]
Note: Even if the counterclaim arises out of the
subject-matter of the opposing party's claim but
it is not within the jurisdiction of the regular
courts of justice, or it requires for its
adjudication the presence of third parties
over whom the court cannot acquire
jurisdiction, it is considered as only a
permissive counter­claim and is not barred
even if not set up in the action. (see also Sec.
2, Rule 9) [1 Regalado 143-144, 2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE
Determining whether a counterclaim is
compulsory or permissive
A positive answer on all four the following tests
would indicate that the counterclaim is
compulsory
a. Are the issues of fact and law raised by the
claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit
on defendant’s claims, absent the
compulsory counterclaim rule?
c. Will substantially the same evidence
support or refute the plaintiff's claim as well
as the counterclaim?
d. Is there any logical relation between the
claim and counterclaim?
[GSIS v. Heirs of Caballero, G.R. No. 158090
(2010)]
3. Effect on counterclaim when
complaint is dismissed
The dismissal of the complaint shall be without
prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in
the answer in the following cases
1. Dismissal under Sec. 2, Rule 17 – where
the plaintiff files a motion to dismiss the
case, after the defendant had filed a
responsive pleading
2. Dismissal under Sec. 3, Rule 17 – where
the complaint is dismissed due to the fault
of the plaintiff
iv. Cross-claims
A cross-claim is any claim by one party
against a co-party arising out of the transaction
or occurrence that is the subject matter either
of the original action or of a counterclaim
therein. Such cross- claim may cover all or part
of the original claim. [Sec. 8, Rule 6]
Existing Cross-claim - A cross-claim that a
defending party has at the time he or she files
his or her answer shall be contained therein.
[Sec. 8, Rule 11]
However, an exception to this would be a
cross-claim by amendment before judgment,
when the counterclaim was not set up due to
Page 42 of 525
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oversight, inadvertence, or excusable neglect.
[Sec. 10, Rule 11]
Cross-claim arising after Answer - A cross-
claim, which either matured or was acquired by
a party after serving his answer may, with
permission of the court, be presented as a
cross-claim by supplemental pleading before
judgment. [Sec. 9, Rule 11]
When a cross-claim is proper
1. It arises out of the subject matter of the
complaint.
2. It is filed against a co-party.
3. The cross-claimant stands to be prejudiced
by the filing of the action against him
[Londres v. CA, G.R. No. 136427 (2002)]
Improper cross-claims
1. Where the cross-claim is improperly
allowed, the remedy is certiorari [Malinao v.
Luzon Surety, G.R. No. L-16082 (1964)]
2. The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and executory
[Ruiz, Jr. v. CA, G.R. No. 101566 (1993)]
3. A cross-claim is not allowed after
declaration of default of cross-claimant. To
allow the cross-claim to remain would be
tantamount to setting aside the order of
default the cross-claimant, who had been
previously declared default, would re-
obtain a standing in court as party litigant
[Tan v. Dimayuga, G.R. No. L-15241
(1962)]
v. Third (fourth, etc.) party
complaints
A third (fourth, etc.) party complaint is a
claim that a defending party may, with leave of
court, file against a person not a party to the
action, called the third (fourth, etc.)-party
defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
or her opponent's claim. [Sec. 11, Rule 6]
Requisites
1. The party to be impleaded must not yet be
a party to the action
U.P. LAW BOC CIVIL PROCEDURE
2. The claim against the third-party defendant
must belong to the original defendant
3. The claim of the original defendant against
the third-party defendant must be based
upon the plaintiff's claim against the
original defendant,
4. The defendant is attempting to transfer to
the third-party defendant the liability
asserted against him by the original plaintiff
[Philtranco Service Enterprises, Inc. v.
Paras, G.R. No. 161909 (2012)], and
5. The court grants leave of court for the filing
of the same [Sec. 11, Rule 6]
When the third (fourth, etc.) party complaint
will not be granted leave, and the court will
require the filing of a separate action:
1. Where matters extraneous to the issue in
the principal case are raised, or
2. Where a new and separate controversy
would be introduced in the action. [Sec.
11, Rule 6]
When, despite grant of leave allowing the
filing of a third-party complaint, the court
dismisses the third (fourth) party complaint
1. The third-party defendant cannot be
located within 30 days from grant of leave.
[Sec. 11, Rule 6]
Additional rules
Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third-
party complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety, G.R. No. L-
27802 (1968)]
A third-party complaint is not proper in an
action for declaratory relief. [Commissioner of
Customs v. Cloribel, G.R. No. L-21036 (1977)]
vi. Complaint-in-intervention
Intervention is a remedy by which a third
party, not originally impleaded in a proceeding,
becomes a litigant therein to enable him to
protect or preserve a right or interest which
may be affected by such proceeding.
[Restaurante Las Conchas v. Llego, G.R. No.
Page 43 of 525
REMEDIAL LAW
119085 (1999), citing First Philippine Holdings
Corporation v. Sandiganbayan, G.R. No.
88345 (1996)]
Further discussion under Section 11.
Intervention
vii. Reply
A reply is a pleading, the office or function of
which is to deny, or allege facts in denial or
avoidance of new matters alleged in, or relating
to actionable documents attached to an
answer. This is so, because under the
Amended Rules, the plaintiff may file a reply
only if the defending party attaches an
actionable document to his or her answer.
[Sec. 10, Rule 6]
Note: An actionable document is a written
document that’s the basis of one’s cause of
action or defense. [1 Riano 280, 2016 Bantam
Ed.]
Note: The function of a reply is to merely deny
the allegations raised in the answer with the
actionable document, not to impose new
causes of action which arise from the answer.
If the plaintiff wants to interpose a new claim
on the basis of the actionable document
attached in the answer, he should do this
through an amended or supplemental
complaint.
1. The amended complaint must be with
leave of court following Sec. 3, Rule 10.
2. The supplemental complaint is allowed
only if it pertains to transactions,
occurrences, or events which have
happened since the date of the complaint
following Sec. 6, Rule 10.
A reply is not the proper responsive pleading to
a counterclaim or a cross-claim, as the proper
responsive pleading would be an answer to the
counterclaim/cross-claim. [1 Riano 335, 2016
Bantam Ed.]
If an actionable document is attached to the
reply, the defendant may file a rejoinder. The
rejoinder must only deny, or allege facts in
U.P. LAW BOC CIVIL PROCEDURE
denial or avoidance of the new matters alleged
in actionable document attached to the reply.
[Sec. 10, Rule 6]
General Rule: There is no need to file a reply
since all new matters alleged in the answer are
deemed controverted. [Sec. 10, Rule 6]
Exception: When an actionable document is
attached to the answer, the plaintiff must file a
reply in order to avoid the admission of the
genuineness and due execution of the
document attached. Failure to file a reply would
lead to the admission of the aforementioned
matters. [1 Riano 336, 2016 Bantam Ed.]
viii. Extensions of time to file
General Rule:
A motion for extension to file any pleading is
prohibited and is considered a mere scrap of
paper. [Sec. 11, Rule 11]
A motion for extension of time to file pleadings,
affidavits, or any other papers is a prohibited
motion and shall not be allowed. [Sec. 12 (e),
Rule 15]
Exception:
A motion for extension of time to file an
answer may be allowed if:
1. For meritorious reasons,
2. For a period not more than 30 calendar
days, and
3. A party may only avail of 1 motion for
extension
The court may still allow, in its discretion, any
other pleading to be filed after the time fixed by
the Rules. [Sec. 11, Rule 11]
b. Pleadings allowed in small
claims cases and cases
covered by the Rules on
Summary Procedure
i. Revised Rules of Procedure for
Small Claims Cases
Page 44 of 525
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Forms
1. A small claims action is commenced by
filing with the court an accomplished and
verified Statement of Claim (Form 1-SCC)
in duplicate, accompanied by a
Certification Against Forum Shopping,
Splitting a Single Cause of Action, and
Multiplicity of Suits (Form 1-A-SCC)
[Sec. 6]
2. The Summons to be served on the
defendant shall be accompanied by a copy
of the Statement of Claim/s and documents
submitted by plaintiff, and a blank
Response Form (Form 3-SCC) to be
accomplished by the defendant [Sec. 12].
The defendant shall file with the court and
serve on the plaintiff a duly accomplished
and verified Response within a non-
extendible period of 10 days from receipt of
summons [Sec. 13].
a. If at the time the action is commenced,
the defendant possesses a claim
against the plaintiff that (a) is within the
coverage of this Rule, exclusive of
interest and costs; (b) arises out of the
same transaction or event that is the
subject matter of the plaintiff’s claim;
(c) does not require for its adjudication
the joinder of third parties; and (d) is not
the subject of another pending action,
the claim shall be filed as a
counterclaim in the Response;
otherwise, the defendant shall be
barred from suing on the counterclaim
[Sec. 15].
b. The defendant may also elect to file a
counterclaim against the plaintiff that
does not arise out of the same
transaction or occurrence, provided
that the amount and nature thereof are
within the coverage of this Rule and the
prescribed docket and other legal fees
are paid [Sec. 15].
Prohibited pleadings and motions
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial
4. Petition for relief from judgment
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

5. Motion for extension of time to file c. Parts and Contents of a

pleadings, affidavits, or any other paper Pleading
6. Memoranda
7. Petition for certiorari, mandamus, or i. Caption
prohibition against any interlocutory order
issued by the court
Sets forth the:
8. Motion to declare the defendant in default
1. Name of the court
9. Dilatory motions for postponement
2. Title of the action (i.e. the names of the
10. Reply
parties and respective participation) and
11. Third-party complaints, and
3. The docket number, if assigned
12. Interventions [Sec. 14]
[Sec. 1, Rule 7]
ii. Rule on Summary Procedure
Body – Sets forth the pleading’s designation,
the allegations of party's claims or defenses,
Allowed Pleadings
the relief prayed for, and its date
1. Complaints
2. Compulsory counterclaims pleaded in the
1. Paragraphs
Answer
3. Cross-claims pleaded in the Answer; and
The allegations in the body of a pleading shall
4. Answers thereto [Sec. 3[A], II]
be divided into paragraphs so numbered as to
be readily identified, each of which shall
Prohibited pleadings, motions, or petitions
contain a statement of a single set of
1. Motion to dismiss the complaint or to quash
circumstances so far as that can be done with
the complaint or information except on the
convenience. A paragraph may be referred to
ground of lack of jurisdiction over the
by its number in all succeeding pleadings.
subject matter, or failure to comply with
required barangay conciliation
2. Headings
proceedings
2. Motion for a bill of particulars
When two or more causes of action are joined,
3. Motion for new trial, or for reconsideration
the statement of the first shall be prefaced by
of a judgment, or for opening of trial
the words “first cause of action," of the second
4. Petition for relief from judgment
by "second cause of action," and so on for the
5. Motion for extension of time to file
others.
pleadings, affidavits or any other paper
6. Memoranda
When one or more paragraphs in the answer
7. Petition for certiorari, mandamus, or
are addressed to one of several causes of
prohibition against any interlocutory order
action in the complaint, they shall be prefaced
issued by the court
by the words "answer to the first cause of
8. Motion to declare the defendant in default
action" or "answer to the second cause of
9. Dilatory motions for postponement
action" and so on; and when one or more
10. Reply
paragraphs of the answer are addressed to
11. Third party complaints, and
several causes of action, they shall be
12. Interventions [Sec. 19]
prefaced by words to that effect.

3. Relief

The pleading shall specify the relief sought, but

it may add a general prayer for such further or
other relief as may be deemed just or equitable.

Page 45 of 525
U.P. LAW BOC CIVIL PROCEDURE
General Rule: It is a settled rule that a court
cannot grant a relief not prayed for by a party
in the pleadings, or in excess of that being
sought. [Bucal v. Bucal, G.R. No. 206957
(2015)]
Exception: Because the rules allow a general
prayer for such other reliefs as may be deemed
just and equitable, the court may grant reliefs
that are not specifically prayed for as long as
they are just and equitable. [1 Riano 257, 2016
Bantam Ed.]
4. Date
Every pleading shall be dated. [Sec. 2, Rule 7]
ii. Signature and address
Every pleading and other written submissions
to the court must be signed by the party or
counsel representing him or her. [Sec. 3, Rule
7]
The signature of counsel constitutes a
certificate that he or she has read the pleading
and document and that such pleading or
document:
a. Is not being presented for any improper
purpose to harass, delay, or increase cost
of litigation
b. Has claims, defenses, and other legal
contentions that are warranted by law or
jurisprudence, and not merely based on
frivolous arguments contrary to
jurisprudence
c. Has factual contentions that have
evidentiary basis or will most likely be
supported by evidence after availment of
modes of discovery, and
d. The denials of facts are based on evidence
or based on belief of lack of information if
specially so identified. [Sec. 3, Rule 7]
Effect of violation of the rule:
The court may on motion or motu proprio, after
notice and hearing, impose an appropriate
sanction or refer such to the proper office for
disciplinary action, unless exceptional
circumstances are present.
Page 46 of 525
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On whom sanction imposed:
The attorney, law firm, or the party that violated
the rule.
Note: The law firm shall be jointly and severally
liable for a violation committed by its partner,
associate, or employee.
Sanction may include, but shall not be
limited to:
a. Non-monetary directive or sanction
b. An order to pay a penalty in court
c. An order directing payment of attorney’s
fees and other expenses
Note: the lawyer or law firm cannot pass on the
monetary penalty to the client. [Sec. 3, Rule 7]
Under the old rules, an unsigned pleading may
be remedied if it was due to mere inadvertence
and not intended for delay. However, under the
Amended Rules, an unsigned pleading may
no longer be remedied since the provision for
such has been deleted from the amended rules
of court. The lawyer, law firm, or party
responsible for filing an unsigned pleading may
thus be sanctioned under this rule unless there
are exceptional circumstances. Also note that
an unsigned pleadings remains to be without
legal effect, and is treated as “a mere scrap of
paper.”
iii. Verification
General Rule: Pleadings need not be under
oath or verified. [Sec. 4, Rule 7]
Exception: When otherwise specifically
required by law or rule. [Sec. 4, Rule 7]
The following pleadings require verification, to
wit:
1. Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure [Sec. 3B, Revised Rules on
Summary Procedure]
2. Petition for relief from judgment or order
[Sec. 3, Rule 38]
3. Petition for review from RTC to the CA
[Sec. 1, Rule 42]
4. Petition for review from quasi-judicial
agencies to the CA [Sec. 5, Rule 43]
U.P. LAW BOC CIVIL PROCEDURE
5. Appeal by certiorari from the CTA to the SC
[Sec. 12, R.A. 9282 amending Sec. 19,
R.A. 1125]
6. Appeal by certiorari from CA to the SC
[Sec. 1, Rule 45]
7. Petition for annulment of judgments or final
orders and resolutions [Sec. 1, Rule 47]
8. Complaint for injunction [Sec. 4, Rule 58]
9. Application for appointment of receiver
[Sec. 1, Rule 59]
10. Application for support pendente lite [Sec.
1, Rule 69]
11. Petition for certiorari against judgments,
final orders, or resolutions of constitutional
commissions [Sec. 2, Rule 64]
12. Petition for certiorari [Sec. 1, Rule 65]
13. Petition for prohibition [Sec. 2, Rule 65]
14. Petition for mandamus [Sec. 3, Rule 65]
15. Petition for quo warranto [Sec. 1, Rule 66]
16. Complaint for expropriation [Sec. 1, Rule
67]
17. Complaint for forcible entry or unlawful
detainer [Sec. 4, Rule 70]
18. Petition for indirect contempt [Sec. 4, Rule
71]
19. Petition for appointment of a general
guardian [Sec. 2, Rule 93]
20. Petition for leave to sell or encumber
property of the ward by a guardian [Sec. 1,
Rule 95]
21. Petition for declaration of competency of a
ward [Sec. 1, Rule 97]
22. Petition for habeas corpus [Sec. 3, Rule
102]
23. Petition for change of name [Sec. 2, Rule
103]
24. Petition for voluntary judicial dissolution of
a corporation [Sec. 1, Rule 104]
25. Petition for cancellation or correction of
entries in the civil registry [Sec. 1, Rule
108]
How Verified
By an affidavit under oath with the following
attestations:
a. The allegations in the pleading are true and
correct based on personal knowledge or
authentic documents;
b. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
Page 47 of 525
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c. The factual allegations therein have
evidentiary support or, if specifically so
identified, will likewise have evidentiary
support after a reasonable opportunity for
discovery.
The authorization of the affiant to act on
behalf of the party, whether in the form of a
secretary’s certificate or a special power of
attorney, should be attached to the pleading.
[Sec. 4, Rule 7]
Note: It is submitted that the requirement of the
attachment of the document of authorization
implies that the authority of such person may
no longer be proven during trial. This,
therefore, overturns existing jurisprudence
which provides that proof of one’s authority to
sign a verification may be taken up during trial.
[246 Corp v. Daway, G.R. No. 157216 (2003)]
Proof of authority should already be
established by attaching said proof to the
pleading.
Effect of noncompliance or defective
verification
General Rule: A pleading required to be
verified that contains a verification based on
"information and belief", or upon "knowledge,
information and belief", or lacks a proper
verification, shall be treated as an unsigned
pleading. [Sec. 4, Rule 7]
Note: An unsigned pleading produces no legal
effect and is a “mere scrap of paper.”
Exception: Lack of verification is a mere
formal, and not a jurisdictional, requirement. As
such, a defect in the verification does not
render the pleading fatally defective and the
court may order its subsequent submission
or correction if such serves the ends of
justice. [Vda. de Formoso v. PNB, 650 SCRA
35 (2001)]
iv. Certification Against Forum
Shopping
Forum shopping
The repeated availment of several judicial
remedies in different courts, simultaneously or
successively, all substantially founded on the
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

same transactions and the same essential Rationale: The plaintiff, not the counsel, is in
facts and circumstances, and all raising the best position to know whether he or it has
substantially the same issues, either pending in actually filed or caused the filing of a petition.
or already resolved adversely by some other Certification signed by counsel without proper
court [Asia United Bank v. Goodland Company, authorization is defective, and a valid cause for
Inc., G.R. No. 191388 (2011)] dismissal [Anderson v. Ho, G.R. No. 172590
(2013)]
Test to determine existence of forum
shopping Exception: Authorized person, usually
Whether in the two or more cases pending, counsel
there is identity of
1. Parties If, for justifiable reasons, the party-pleader is
2. Rights or causes of action, and unable to sign, he must execute a Special
3. Relief sought Power of Attorney designating his counsel of
[Huibonhoa v. Concepcion, G.R. No. 153785 record to sign on his behalf [Vda. de Formoso
(2005)] v. PNB, G.R. No. 154704 (2011)] In cases of a
juridical entity, the certification may be
Certificate of Non-Forum Shopping (CNFS) executed by a properly authorized person
The plaintiff or principal party shall certify through due authorization by a board
under oath in the complaint or other resolution. [Cosco v. Kemper, 670 SCRA 343
initiatory pleading asserting a claim for relief (2012)]
or in a sworn certification annexed thereto and
simultaneously filed therewith Note: Similar to the new requirement under
1. That he or she has not commenced any verification, the authorization of the affiant to
action or filed any claim involving the same act on behalf of the party, should be attached
issues in any court, tribunal or quasi- to the pleading.
judicial agency and, to the best of his
knowledge, no such other action is pending Effect of noncompliant CNFS
2. If there is such other pending action or Defect Effect
claim, a complete statement of the present Not curable by mere
status thereof, and amendment of the
3. If he or she should learn that the same or a
complaint or other
similar action or claim has been filed or is
pending, he shall report that fact within 5 initiatory pleading
calendar days to the court wherein his Failure to comply
aforesaid complaint or initiatory pleading with the Cause for dismissal
has been filed. [Sec. 5, Rule 7] requirements of the case, without
prejudice, unless
What pleadings require a certification
otherwise provided,
against non-forum shopping (Initiatory
upon motion and
pleadings)
1. Complaint after hearing
2. Permissive counterclaim False certification Constitutes indirect
3. Cross-claim contempt of court,
4. Third (fourth, etc.) party complain Non-compliance with
without prejudice to
5. Complaint-in-intervention any of the
administrative and
undertakings therein
criminal actions
Who signs:
General Rule: Plaintiff or Principal party When there is willful Ground for summary
and deliberate forum dismissal, with
shopping prejudice

Page 48 of 525
U.P. LAW BOC CIVIL PROCEDURE
Direct contempt of
court
Cause for
administrative
sanctions
[Sec. 5, Rule 7]
v. Contents of a Pleading
Every pleading stating a party's claims or
defenses shall, in addition to those mandated
by Section 2, Rule 7, state the following:
a. Names of witnesses who will be
presented to prove a party's claim or
defense;
b. Summary of the witnesses' intended
testimonies, provided that the judicial
affidavits of said witnesses shall be
attached to the pleading and form an
integral part thereof, and
General Rule:
Only witnesses whose judicial affidavits
areattached to the pleading shall be
presented by the parties during trial.
Exception:
If a party presents meritorious reasons as
basis for the admission of additional
witnesses
c. Documentary and object evidence in
support of the allegations contained in the
pleading. [Sec. 6, Rule 7]
Rationale:
To ensure that a person filing a case or a
pleading would, at the time of filing, already
have evidentiary basis to back the same up,
and there would be no delay caused by parties
still trying to find evidence as basis for the
claims during the pendency of the case.
Moreover, all papers and pleadings filed in
court must likewise bear the following items:
1. Professional Tax Receipt Number
2. IBP Official Receipt Number
3. Roll of Attorneys’ Number
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4. MCLE Certificate of Compliance, or
Certificate of Exemption
Note: Failure to comply with the first three
requirements allow the court to not take action
with the pleading, without prejudice to possible
disciplinary actions against the erring counsel.
Failure to comply with the fourth requirement
causes the dismissal of the case and
expunction of the pleadings from the records.
[1 Riano 262-263, 2016 Bantam Ed.]
d. Allegations in a pleading
Every pleading shall contain in a methodical
and logical form:
1. a plain, concise and direct statement of the
ultimate facts,
2. the evidence on which the party pleading
relies for his or her claim or defense, as the
case may be
3. If the cause of action or defense is based
on law, the pertinent provisions of the law
and its applicability. [Sec. 1, Rule 8]
Alternative Causes of Action
A party may set forth two or more claims or
defenses alternatively in one cause of action.
Such happens when a party is not certain
which cause of action would squarely fit the set
of facts alleged in the complaint. [1 Riano 278,
2016 Bantam Ed.]
Also. a pleading which alleges alternative
causes of action is not made insufficient by the
insufficiency of one or more of the alternative
statements as long as one of them is sufficient.
[Sec. 2, Rule 8]
Example: A plaintiff may be unsure as to
whether the liability of the carrier is based
either on breach of contract or a quasi-delict.
The rules allow him to state both causes of
action in the alternative. [1 Riano 278, 2016
Bantam Ed.]
i. Manner of making allegations
How to allege the following in a pleading:
U.P. LAW BOC CIVIL PROCEDURE
1. Capacity to sue or be sued
The following must be averred, to wit:
a. Facts showing the capacity of a person
to sue or be sued,
b. The authority of a party, to sue and be
sued in a representative capacity, or
c. The legal existence of an organized
association of persons that is made a
party.
Moreover, a party desiring to raise an issue as
to the legal existence of any party to sue or be
sued in a representative capacity must do so
via specific denial. [Sec. 4, Rule 8]
2. Judgments
In pleading a judgment or decision of either
a domestic or a foreign court, judicial or
quasi-judicial tribunal, or a board or officer,
it is sufficient to aver the judgment or
decision without setting forth matter
showing jurisdiction to render it.
However, under the Amended Rules, an
authenticated copy of the judgment or
decision pleaded must be attached to the
pleading. [Sec. 6, Rule 8]
3. Official documents or acts
In pleading official documents or acts, it is
sufficient to aver that the document was
issued or the act was done in compliance
with law. [Sec. 9, Rule 8]
1. Condition precedent
In any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. [Sec. 3, Rule 8]
All valid conditions precedent to the institution
of the particular action, whether prescribed by
statute, fixed by agreement of the parties or
implied by law must be performed or complied
with before commencing the action, unless the
conduct of the adverse party has been such as
to prevent or waive performance or excuse
non-performance of the condition. [Anchor
Savings Bank v. Furigay, G.R. No. 191178
(2013)]
Page 50 of 525
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Examples of conditions precedent:
a. A tender of payment is required before
making a consignation [Art. 1256, NCC]
b. Exhaustion of administrative remedies is
required in certain cases before resorting
to judicial action [Lopez v. City of Manila,
G.R. No. 127139 (1999); Dy v. CA, G.R.
No. 121587 (1999)]
c. Prior resort to barangay conciliation
proceedings is necessary in certain cases
[Book III, Title I, Chapter 7, LGC]
d. Earnest efforts toward a compromise must
be undertaken when the suit is between
members of the same family and if no
efforts were in fact made, the case must be
dismissed, [Art. 151, FC]
e. Arbitration may be a condition precedent
when the contract between the parties
provides for arbitration first before recourse
to judicial remedies
[1 Riano 333-334, 2014 Bantam Ed.]
Note: The failure to comply with a condition
precedent before the filing of a complaint is no
longer a ground for an allowable motion to
dismiss under the Amended Rules. However, it
is an affirmative defense that must be set out
in the answer or else, it is deemed waived.
[Sec. 12, Rule 8]
2. Fraud, mistake, malice, intent,
knowledge and other condition
of the mind, judgments, official
documents or acts
Fraud, mistake, malice, intent, knowledge,
and other condition of the mind
In all averments of fraud or mistake, the
circumstances constituting fraud or
mistake must be stated with particularity.
[Sec. 5, Rule 8]
Rationale:
The reason for this rule is that an allegation of
fraud concerns the morality of the defendant’s
conduct and he is entitled to know fully the
ground on which the allegations are made, so
he may have every opportunity to prepare his
case to clear himself at the trial [Guy v. Guy,
G.R. No. 189486 (2012)]
U.P. LAW BOC CIVIL PROCEDURE
Malice, intent, knowledge or other condition of
the mind of a person may be averred generally
[Sec. 5, Rule 8]
ii. Pleading an actionable document
Actionable document
Whenever an action or defense is based or
founded upon a written instrument or
document, said instrument or document is
deemed an actionable document [1 Riano
359, 2014 Bantam Ed.]
Pleading the document
1. The substance of such document shall be
set forth in the pleading, and
2. The original or a copy thereof shall be
attached to the pleading as an exhibit.
[Sec. 7, Rule 8]
Note: The Amended Rules deleted the
provision allowing for the copying of the
instrument on the pleading. Therefore, such is
no longer allowed as a means of pleading an
actionable document. This means that setting
forth the substance of the actionable
document and the attachment of such to the
pleading is the only way to plead the document
under the Amended Rules.
A variance in the substance of the document
set forth in the pleading and the document
annexed thereto does not warrant dismissal of
the action. [Convets Inc. v. National Dev. Co.,
G.R. No. L-10232 (1958)]
How to contest an actionable document
General rule:
The adverse party, under oath, specifically
denies them, and sets forth what he or she
claims to be the facts
Exceptions: The requirement of an oath does
not apply when:
1. The adverse party does not appear to be a
party to the instrument, or
2. Compliance with an order for an inspection
of the original instrument is refused. [Sec.
8, Rule 8]
Page 51 of 525
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Effect of failure to deny under oath
The genuineness and due execution of the
actionable document is deemed admitted.
[Sec. 8, Rule 8]
Meaning of due execution and genuineness
That the party whose signature it bears admits
that he signed it or that it was signed by another
for him with his authority; that it was in words
and figures exactly as set out in the pleading of
the party relying upon it; that the document was
delivered and that any formal requisites
required by law, such as a seal, an
acknowledgment, or revenue stamp, which it
lacks, are waived by him [Hibberd v. Rohde
and Mcmillian, G.R. No. 8418 (1915)]
iii. Specific denials
The purpose of requiring the defendant to
make a specific denial is to make him disclose
the matters alleged in the complaint which he
succinctly intends to disprove at the trial,
together with matters which he relied upon to
support the denial. [Philippine Bank of
Communications v. Go, G.R. No. 175514
(2011)]
A denial does not become specific merely
because it is qualified by the word “specific” or
“specifically”. [Republic v. Gimenez, G.R. No.
174673 (2016)]
Material averments in any pleading asserting
a claim, other than those as to the amount of
unliquidated damages, shall be deemed
admitted when not specifically denied. [Sec.
11, Rule 8]
Note: Under the previous Rules, only material
averments in the complaint were deemed
admitted if not specifically denied. Under the
Amended Rules widens the scope of such rule
to include any pleading asserting a claim. It
is submitted, therefore, that this rule now
covers:
1. Counterclaims
2. Cross-claims (both compulsory and
permissive)
3. Third (fourth, etc.) party complaints, and
4. Complaints-in-intervention.
U.P. LAW BOC CIVIL PROCEDURE
As to answers, any new allegations set forth
therein are deemed controverted. [Sec. 10,
Rule 6]
1. Effect of failure to make specific
denials
General rule: Material averments in a pleading
asserting a claim or claims shall be deemed
admitted when not specifically denied [Sec. 11,
Rule 8]
Exceptions:
The following averments in the complaint are
not deemed admitted even if not specifically
denied:
1. Amount of unliquidated damages [Sec. 11,
Rule 8]
2. Conclusions in a pleading, because it is for
a court to make conclusions, and
3. Non-material allegations or averments,
because the rules provide that only
material allegations have to be denied. [1
Riano 300, 2016 Bantam Ed.]
2. When a specific denial requires
an oath
Specific denial under oath is required for the
denial of the genuineness and due execution of
an actionable document. But, as previously
mentioned, an oath is not required when the
adverse party does not appear to be a party to
the instrument or when compliance with an
order for inspection of the original instrument is
refused. [Sec. 8, Rule 8]
Note: The provisions on usury were deleted by
the amended rules.
iv. Affirmative defenses
A defendant shall raise his or her affirmative
defenses in the answer. [Sec. 12, Rule 8]
The grounds shall be limited to those under
Sec. 5(b), Rule 6 and those enumerated under
Sec. 12, Rule 8.
Page 52 of 525
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Thus, the following are the affirmative
defenses that should be raised in the answer:
Under Sec. 5(b), Rule 6, 1st paragraph:
1. Fraud,
2. Statute of limitations,
3. Release,
4. Payment,
5. Illegality,
6. Statute of frauds,
7. Estoppel,
8. Former recovery,
9. Discharge in bankruptcy, and
10. Any other matter by way of confession and
avoidance.
Note: The court is allowed to conduct a
summary hearing within 15 calendar days
from the allegation of these affirmative
defenses in the answer. After such hearing,
they must be resolved by the court within 30
calendar days from the end of the summary
hearing. [Sec. 12(d), Rule 8]
Under Sec. 5(b), Rule 6, 2nd paragraph
11. Lack of jurisdiction over the subject matter;
12. Litis pendentia, and
13. Res judicata.
Note: Curiously, the Amended Rules do not
provide a time for which the court must act on
these grounds when they are alleged as
affirmative defenses in the answer. Section 12,
Rule 8 merely provides for a period for the
affirmative defenses listed in the first
paragraph of Sec. 5(b), Rule 6 and not for
those listed under the second paragraph of
such rule.
Under Sec. 12, Rule 8:
14. Lack of jurisdiction over the person of the
defendant,
15. Improper venue,
16. Lack of legal capacity to sue of the plaintiff,
17. Failure to state a cause of action, and
18. Failure to comply with a condition
precedent.
Note: The court must motu proprio resolve
these affirmative defenses within 30 calendar
days from the filing of the answer. [Sec. 12(c),
Rule 8]
U.P. LAW BOC CIVIL PROCEDURE
Effect of failure to raise the affirmative
defense at the earliest opportunity
General rule: Failure to raise an affirmative
defense in the answer or at the earliest
opportunity constitutes a waiver of the
defense.
Exception: Non-waivable grounds
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations. [Sec. 1, Rule 9]
Note: If the non-waivable grounds are not
raised in the answer, the Amended Rules
allow them to be proper grounds for a
motion to dismiss. [Sec. 12, Rule 15] With the
deletion of Rule 16, and consequently the time
for filing of a motion to dismiss, it seems that
the Amended Rules do not provide for a
specific period where the filing of a motion to
dismiss may be done.
Remedy if the affirmative defense is denied
Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration, or a
petition for certiorari, prohibition, or
mandamus, but may be among the matters to
be raised on appeal after a judgment on the
merits. [Sec. 12(e), Rule 8]
Note: If denied, the case will proceed to trial.
The defendant may raise the matter on appeal
after judgment on the merits.
v. Striking out of a pleading
The court may order any pleading to be
stricken out or that any sham or false,
redundant, immaterial, impertinent, or
scandalous matter be stricken out therefrom.
[Sec. 13, Rule 8]
How done
1. Upon motion by a party before responding
to a pleading;
2. Upon motion by a party within 20 calendar
days after service of the pleading upon him
or her, if no responsive pleading is allowed
by the rules; or
Page 53 of 525
REMEDIAL LAW
3. Upon the court’s own initiative at any time.
[Sec. 13, Rule 8]
e. Effect of failure to plead
i. Failure to plead defenses and
objections
General rule: Defenses and objections not
pleaded in either a motion to dismiss or in the
answer are deemed waived [Sec. 1, Rule 9]
Exceptions:
The court shall dismiss the case when it
appears from the pleadings or the evidence on
record that:
1. The court has no jurisdiction over the
subject matter,
2. There is another action pending between
the same parties for the same cause (litis
pendentia),
3. The action is barred by a prior judgment
(res judicata), or
4. The action is barred by statute of limitations
(prescription). [Sec. 1, Rule 9]
Note: The Amended Rules provide that the
aforementioned grounds are the only grounds
allowed in a motion to dismiss. [Sec. 12 (a),
Rule 15]
ii. Failure to plead compulsory
counterclaim and cross-claim
General rule: A compulsory counterclaim, or a
cross-claim, not set up shall be barred. [Sec. 2,
Rule 9]
Exceptions:
1. Omitted Counterclaim or Cross-claim
When a pleader fails to set up a
counterclaim or 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
judgment. [Sec. 10, Rule 11]
2. Counterclaim or Cross-claim after
Answer
U.P. LAW BOC CIVIL PROCEDURE
A counterclaim or a cross-claim which
either matured or was acquired by a party
after serving his pleading may, with the
permission of the court, be presented as a
counterclaim or a cross-claim by
supplemental pleading before judgment.
[Sec. 9, Rule 11]
f. Default
Failure of the defending party to answer within
the time allowed therefor. [Sec. 3, Rule 9]
Dual stages of default
Order of default Judgment by
default
Issued by the court
on plaintiff’s motion Rendered by the
and at the start of the court following an
proceedings, for order of default,
failure of the when the court has
defendant to received ex parte the
seasonably file his plaintiff’s evidence
responsive pleading.
[1 Regalado 191, 2010 Ed.]
i. When declaration of default is
proper
The rule on default clearly establishes the
“failure to answer within the time allowed
therefor” as the ground for a declaration of
default [Sec. 3, Rule 9].
Failure to attend the pre-trial does not result
in the "default" of the defendant. Instead, the
failure of the defendant to attend shall be cause
to allow the plaintiff to present his evidence ex
parte and the court to render judgment on the
basis thereof [Aguilar v. Lightbringers Credit
Cooperative, G.R. No. 209605 (2015)]
Requisites before a declaration of default
1. The court must have validly acquired
jurisdiction over the person of the
defending party, either by service of
summons or voluntary appearance;
Page 54 of 525
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2. The defending party must have failed to
file his answer within the time allowed
therefor;
3. The claiming party must file a motion to
declare the defending party in default;
4. The claiming party must prove that the
defending party has failed to answer within
the period provided by the ROC;
[Sablas v. Sablas, G.R. No. 144568 (2007)]
5. The defending party must be notified of
the motion to declare him in default; and
[Sec. 3, Rule 9]
6. There must be a hearing set on the motion
to declare the defending party in default
[Spouses de los Santos v. Carpio, G.R. No.
153696 (2006)]
[1 Riano 364, 2014 Bantam Ed.]
ii. Effect of an order of default
A party in default shall be entitled to notices
of subsequent proceedings but shall not take
part in the trial. [Sec. 3, Rule 9] The party
declared in default loses his standing in court.
The loss of such standing prevents him from
taking part in the trial. He forfeits his rights as a
party litigant, has no right to present evidence
supporting his allegations, to control the
proceedings, or cross-examine witnesses. [1
Riano 305, 2016 Bantam Ed.]
A party in default may still participate as a
witness. [Cavili v. Florendo, G.R. No. 73039
(1987)]
The court may either:
a. Proceed to render judgment granting the
claimant such relief as his or her pleading
may warrant, or
b. Require the claimant to submit evidence;
such reception of evidence may be
delegated to the clerk of court.
[Sec. 3, Rule 9]
A declaration of default is not tantamount to
an admission of the truth or validity of the
plaintiff’s claims. [Monarch Insurance v. CA,
G.R. No. 92735 (2000)]
A defending party declared in default retains
the right to appeal from the judgment by
U.P. LAW BOC CIVIL PROCEDURE
default. However, the grounds that may be
raised in such an appeal are restricted to any
of the following:
a. The failure of the plaintiff to prove the
material allegations of the complaint;
b. The decision is contrary to law; and
c. The amount of judgment is excessive or
different in kind from that prayed for.
In these cases, the appellate tribunal should
only consider the pieces of evidence that were
presented by the plaintiff during the ex parte
presentation of his evidence. [Otero v. Tan,
G.R. No. 200134 (2012)]
iii. Relief from an order of default
Relief before judgment
File a motion under oath to set aside the order
of default upon proper showing that:
a. His or her failure to answer was due to
fraud, accident, mistake or excusable
negligence, and
b. He has a meritorious defense - such that
the motion must be accompanied by a
statement of the evidence which he intends
to present if the motion is granted and
which is such as to warrant a reasonable
belief that the result of the case would
probably be otherwise if a new trial is
granted [Kilosbayan v. Janolo, G.R. No.
180543 (2010)] [Sec. 3(b), Rule 9]
In such a case, the order of default may be set
aside in such terms and conditions as the judge
may impose in the interest of justice. [Sec. 3(b),
Rule 9]
Relief after judgment but before it has
become final and executory
The party declared in default may file:
a. a motion for new trial under Sec. 1(a), Rule
37 [Lina v. CA, G.R. No. L-63397 (1985)],
or
b. an appeal from the judgment as being
contrary to the evidence or the law
[Republic v. Sandiganbayan, G.R. No.
148154 (2007), cited in 1 Riano 373, 2014
Bantam Ed.]
Page 55 of 525
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Relief after judgement has become final and
executory
He may file a petition for relief under Rule 38
[Lina v. CA, G.R. No. L-63397 (1985)]
These remedies presuppose that the
defending party was properly declared in
default, but it is submitted, however, that
certiorari will lie when said party was
improperly declared in default. [1 Riano 374,
2014 Bantam Ed.]
iv. Effect of a partial default
Partial default takes place when the complaint
states a common cause of action against
several defendants, and only some of whom
answer. [Sec. 3, Rule 9]
Effects
1. The court should declare defaulting
defendants in default, and proceed to trial
on answers of others
2. If the defense is personal to the one who
answered, it will not benefit those who did
not answer.
v. Extent of relief
A judgment rendered against a party in default
shall neither:
1. Exceed the amount,
2. Be different in kind from that prayed for, nor
3. Award unliquidated damages. [Sec. 3(d),
Rule 9]
The fact that the defendant was declared in
default is of no moment when the plaintiff would
not have been entitled to relief since his
complaint did not state a cause of action, hence
the same should be dismissed. [1 Regalado
193, 2010 Ed., citing Reyes v. Tolentino, G.R.
No. L-29142 (1971)].
vi. Actions where default are not
allowed
In case of failure to file an answer in an action
for:
1. Annulment or declaration of nullity of
marriage, or
U.P. LAW BOC CIVIL PROCEDURE
2. Legal separation
The court shall order the Solicitor General, or
his or her deputized public prosecutor:
1. To investigate whether or not a collusion
between the parties exists, or
2. To intervene for the State in order to see
to it that the evidence submitted is not
fabricated, if there is no collusion. [Sec.
3(e), Rule 9]
Other instances where default is not
allowed:
1. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is required
to be filed. [Sec. 6, Rule 65]
2. Cases covered by the Rule on Summary
Procedure [See Sec. 6, Rule on Summary
Procedure, which requires the court to
render. judgment if the defendant fails to
answer]
3. In expropriation proceedings, whether or
not a defendant has previously appeared
or answered, he may present evidence as
to the amount of compensation to be paid
for his property in the trial of the issue of
just compensation. [Sec. 3(2), Rule 67]
g. Filing and service of pleadings
Coverage
The filing of all pleadings, motions, and
other court submissions, as well as the
service thereof, except those for which a
different mode of service is prescribed. [Sec. 1,
Rule 13]
Note: Due to the revision, the rule now
contemplates filing of submissions that are not
paper-based, such as those made through
electronic means.
Papers required to be filed and served
a. Judgment
b. Resolution
c. Order
d. Pleading subsequent to the complaint
e. Written motion
f. Notice
g. Appearance
Page 56 of 525
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h. Demand
i. Offer of judgment; or
j. Similar papers. [Sec. 4, Rule 13]
i. Payment of Docket Fees
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payment
of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or
nature of the action [Proton Pilipinas v. Banque
National de Paris, G.R. No. 151242 (2005)]
Payment of docket fees is mandatory and
jurisdictional [National Transmission
Corporation v. Heirs of Teodulo Ebesa, G.R.
No. 186102 (2016)].
EFFECT OF FAILURE TO PAY DOCKET
FEES AT FILING
a. The Manchester Rule
● Automatic Dismissal
● Any defect in the original pleading
resulting in underpayment of the
docket fees cannot be cured by
amendment, such as by the reduction
of the claim as, for all legal purposes,
there is no original complaint over
which the court has acquired
jurisdiction
[Manchester v. CA, G.R. No. 75919 (1987)]
b. Relaxation of the Manchester Rule (Sun
Insurance Doctrine)
● NOT automatic dismissal
● Court may allow payment of fees within
a reasonable time, but in no case
beyond the expiration of the applicable
prescriptive period of the action filed
[Sun Insurance v. Asuncion, G.R. No.
79937 (1989)]
c. Exception to the Sun Insurance doctrine
– The Sun Insurance rule allowing payment
of deficiency does not apply where plaintiff
never demonstrated any willingness to
abide by the Rules to pay the docket fee
but stubbornly insisted that the case filed
was one for specific performance and
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

damages [Gochan v. Gochan, G.R. No. period is

146089 (2001)] fixed by
the court)
d. Further modification
Answer of a
● Docket fees as lien
● Where the trial court acquires defendant foreign
jurisdiction over a claim by the filing of private juridical
Receipt of
the pleading and the payment of the entity whose Within 60
summons
prescribed filing fee, but subsequently, summons was calendar
the judgment awards a claim not by such
served on the days
specified in the pleading, or cannot entity
government
then be estimated, or a claim left for
official designated
determination by the court, then the
additional filing fee shall constitute a by law [Sec. 2]
lien on the judgment Answer to Service of
[Heirs of Hinog v. Melicor, G.R. No. 140954 amended Within 30 a copy of
(2005)] complaint as a calendar the
matter of right days amended
e. Limitation on the claims covered by
[Sec. 3] complaint
fees as lien
Claims not specified or claims although Notice of
Answer to
specified are left for determination of the the order
amended Within 15
court are limited only to any damages that admitting
complaint NOT as calendar
may arise after the filing of the complaint or the
similar pleading for then it will not be a matter of right days
amended
possible for the claimant to specify nor [Sec. 3]
complaint
speculate as to the amount thereof
[Metrobank v. Perez, G.R. No. 181842 Answer to an
(2010)] amended
counterclaim
ii. Distinguish: Filing and Service of amended cross-
Pleadings Same as Same as
claim, amended
answer to answer to
third (fourth, etc.) -
Filing is the act of submitting the pleading or amended amended
party complaint,
other paper to the court. [Sec. 2, Rule 13] complaint complaint
and amended
Service is the act of providing a party with a complaint-in-
copy of the pleading or any other court intervention [Sec.
submission. [Sec. 2, Rule 13] 3]
Answer to
iii. Periods of Filing of Pleadings Within 20
counterclaim or
calendar Service
Responsive cross-claim [Sec.
Reckoning days
Pleadings [Rule Period 4]
Point Answer to third Same as Same as
11]
Within 30 (fourth, etc.) - answer to answer to
Answer to the party complaint the the
calendar
complaint [Sec. 1] Service of [Sec. 5] complaint complaint
days
summons
(unless a
different

Page 57 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Service of considered as the date of

Within 15 the their filing.
Reply [Sec. 6] calendar pleading Transmittal by
days responded electronic mail
The date of electronic
to or other
transmission
Within 20 electronic
calendar means
days Notice of [Sec. 3, Rule 13]
Answer to
(unless a the order
supplemental v. Modes of service
different admitting
complaint [Sec. 7]
period is the same
To whom service made
fixed by
General Rule:
the court) Serve the copy of the pleading or the court
submission to the party himself.
Note: The Rules allow for a motion to extend
time to file an answer, as long as it is for Exception:
meritorious reasons. Such may only be availed If a party has appeared by counsel, service
of by the defendant once and may not exceed upon such party shall be made upon his or her
30 calendar days. [Sec. 1, Rule 11] counsel or one of the counsels.

iv. Manner of filing Exception to Exception:

The court orders service upon both the party
How filed and counsel. [Sec. 2, Rule 13]
The filing of pleadings and other court
submissions shall be made by: When several parties/several counsel
a. Submitting personally the original to the Where one counsel appears for several
court; parties, such counsel shall only be entitled to
b. Sending them by registered mail; one copy of any paper served upon him by the
c. Sending them by accredited courier; or opposite side.
d. Transmitting them by electronic mail or
other electronic means as may be Where several counsels appear for one
authorized by the Court, in places where party, such party shall be entitled to only one
the court is electronically equipped. [Sec. copy of any pleading or paper to be served
3, Rule 13] upon the lead counsel if one is designated or
upon any one of them is there no designation
Mode of of a lead counsel.
Date of Filing [Sec. 2, Rule 13]
Filing
The clerk of court shall
Personal Modes of Service
endorse on the pleading
Filing Pleadings, motions, orders, judgments, and
the date and hour of filing other court submissions shall be served:
Filing by The date of the mailing of 1. Personally,
Registered motions, pleadings, and 2. By registered mail,
Mail other court submissions, 3. By accredited courier,
and payments or deposits, 4. By electronic mail, facsimile transmission,
Filing by or other electronic means as may be
as shown by the post office
Accredited authorized by the Court,
stamp on the envelope or
Courier
the registry receipt shall be

Page 58 of 525
U.P. LAW BOC CIVIL PROCEDURE
5. By service as provided for in international
conventions to which the Philippines is a
party, and
6. Substituted service. [Sec. 5, Rule 13]
Note: As to which modes of service are
preferred, refer below to the discussion on
conventional service of orders, pleadings, and
other documents.
Presumptive Service
There shall be presumptive service of a notice
to a party of a court setting:
1. Addressee is in the same judicial region
of the court where the case is pending
• if such notice appears on the records to
have been mailed at least 20 calendar
days prior to the scheduled date of
hearing
2. Addressee is from outside the judicial
region of the court where the case is
pending
• if such notice appears on the records to
have been mailed at least 30 calendar
days prior to the scheduled date of
hearing. [Sec. 10, Rule 13]
Note: Since it is provided as a mere
presumption, it may be subject to proof to the
contrary, such as when counsel adduces
evidence that notice of the court setting was
indeed not served.
1. Personal service
How personal service is made
Service by personal service shall be made by:
1. By personal delivery of a copy to the party,
counsel, or to their authorized
representative named in the appropriate
pleading or motion, or
2. By leaving it in his or her office with his or
her clerk, or with a person having charge
thereof
• If (a) no person is found in his or her
office, or (b) his or her office is not
known, or (c) he or she has no office,
then by leaving the copy at the party or
counsel's residence, if known, with a
person of sufficient age and discretion
residing therein.
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• Such must be served at the residence
at a time between 8 am to 6 pm. [Sec.
6, Rule 13]
2. Service by registered mail
How service by registered mail is made
1. Depositing the copy in the post office in a
sealed envelope,
2. The copy must be plainly addressed to the
party or counsel at his office, if known.
Otherwise, address to his residence, if
known,
3. Postage must be fully prepaid, and
4. Copy must come with instructions to the
postmaster to return the mail to the sender
after 10 calendar days if the copy remains
undelivered.
Ordinary mail – If no registry service is
available in the locality of either the sender or
addressee, service can be made through
ordinary mail. [Sec. 7, Rule 13]
3. Service by accredited courier
How service by accredited courier is done
Note: Unlike the other means of service, it
seems that there is no provision under the
Amended Rules which outlines how service via
accredited courier is done.
At most, the Amended Rules only provide that
in the case of judgements, finals orders, and
resolutions, such service must be preceded by
an ex parte motion requested by any party to
the proceedings. [Sec. 13, Rule 13]
4. Service by electronic mail,
facsimile transmission, or other
electronic means
When service by electronic means or
facsimile is allowed
Service by electronic means and facsimile shall
be made if the party concerned consents to
such modes of service. [Sec. 9, Rule 13]
U.P. LAW BOC CIVIL PROCEDURE
How service by electronic means or
facsimile is made
Service by electronic means
1. By sending an e-mail to the party’s or
counsel’s e-mail address, or
2. Through other electronic means of
transmission.
Before service by electronic means can be
availed of, either the agreement of the parties
or the direction of the court is required. [Sec. 9,
Rule 13]
Service by facsimile
By sending a facsimile copy to the party or
counsel’s given facsimile number.
[Sec. 9, Rule 13]
Subject format of electronically served
documents and facsimiles
The subject of the e-mail and facsimile must
follow the prescribed format:
1. Case number, followed by
2. Case title, followed by
3. The pleading, order or document title.
• The title of each electronically-filed or
served pleading or document, and
each submission served by facsimile,
shall contain sufficient information to
enable the court to ascertain from the
title:
a. The parties filing or serving the
paper,
b. The nature of the paper,
c. The party or parties against whom
relief, if any, is sought, and
d. The nature of the relief sought.
[Sec. 12, Rule 13]
Change of electronic mail or facsimile
number
A party who changes his e-mail address or
facsimile number while the action is pending
must file, within 5 calendar days, a notice of
change of e-mail address or facsimile number
with the court, and serve notice on all other
parties. [Sec. 11, Rule 13]
Service through the registered e-mail of the
party shall be presumed valid unless such
Page 60 of 525
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party notifies the court of any change as
aforementioned. [Sec. 11, Rule 13]
Note: Due to the rule providing for such
presumption, any actual change in the e-mail
addresses or facsimile numbers of the parties
will not bind the court unless the party gives
notice of the change.
5. Service as provided for in
international conventions
An example of an international convention
which the Philippines is a party to which
likewise relates to service of court documents
would be the Convention on the Service
Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters.
6. Substituted service
When substituted service is allowed
When service cannot be made personally or by
mail because the office and place of residence
of the party or his counsel being unknown.
[Sec. 8, Rule 13]
How substituted service is made
1. Delivering the copy to the clerk of court
2. With proof of failure of both personal
service and service by mail. [Sec. 8, Rule
13]
Papers that may be served through
substituted service
1. Pleadings
2. Motions
3. Notices
4. Resolutions, and
5. Other papers. [Sec. 8, Rule 13]
Judgments, final orders, or resolutions cannot
be served by substituted service. [1 Regalado
233, 2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

vi. Service of judgments, final orders,
or resolutions; service of court-
issued orders and other
documents
Service of judgments, final orders, or
resolutions
Judgments, final orders, or resolutions shall be
served either:
1. Personally,
2. By registered mail,
3. By accredited courier, upon ex parte
motion of any party
4. By publication, when a party summoned by
publication has failed to appear in the
action. Expenses of publication must be
borne by the prevailing party. [Sec. 13,
Rule 13]
Note: Curiously, both Sec. 5, Rule 13 and Sec.
13, Rule 13 mandate different methods of
service when it comes specifically to
“judgements” and “final orders”. It is
submitted that the enumeration in Sec. 13,
Rule 13 should govern when it comes to these
two court documents, as such rule specifically
provides for the method of service of
“judgements” and “final orders”. Sec. 5, Rule
13 on the other hand, covers the method of
service for a more general list of court
documents. Lex specialis derogat legi generali.
Specific provisions of law govern over general
provisions.
judgements, final orders, and resolutions as
dictated by Sec. 13, Rule 13. This is so
because Sec. 13, Rule 13 uses the word “shall”
in enumerating the modes of service applicable
to such documents. Electronic service
cannot replace these modes of service, and
may only supplement the same. It appears,
therefore, that the rationale for allowing
electronic service in these cases is to ensure
receipt by the parties to the case.
vii. Conventional service or filing of
orders, pleadings, and other
documents
General Rule: The following should not be
served or filed electronically, and shall be filed
or served personally or by registered mail:
1. Initiatory pleadings and initial responsive
pleadings (answer);
2. Subpoena, protection orders, and writs;
3. Appendices and exhibits to motions, or
other documents that are not readily
amenable to electronic scanning; and
4. Sealed and confidential documents or
records.
Exception: When the court gives express
permission for them to be filed electronically.
[Sec. 14, Rule 13]
7. When service is deemed
complete

Service of court-issued orders and other Mode of

documents Completeness of Service
Service
The court may electronically serve orders and Personal
other documents to all the parties in the case Upon actual delivery.
Service
which shall have the same effect and validity
as provided herein. Upon the expiration of the
Service by 10 calendar days after
A paper copy of the order or other document ordinary mail mailing, unless the court
electronically served shall be retained and otherwise provides.
attached to the record of the case. Upon the actual receipt by
[Sec. 18, Rule 13]
Service by the addressee, or
Note: It is submitted that despite Sec. 18, Rule registered after 5 calendar days from
13 allowing for service of orders and other mail the date he or she received
documents electronically, such mode of the first notice of the
service may be done only in addition to the
four modes of service in the case of

Page 61 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

postmaster, whichever is Mode Proof of Filing

earlier. By the written or stamped
Upon actual receipt by the acknowledgment of its filing
Personal
addressee or by the clerk of court on a
Filing
after at least 2 attempts to copy of the pleading or
Service by
deliver or court submission.
accredited
upon the expiration of 5 By the registry receipt and
courier
calendar days after the first the affidavit of the person
attempt to deliver, who mailed it containing a
whichever is earlier. full statement of the date
At the time of the electronic and place of deposit of the
transmission of the mail in the post office in a
Filing by
document or sealed envelope
registered
at the time that the addressed to the court, with
mail
electronic notification of postage fully prepaid, and
service of the document is with the instructions to the
Electronic
sent. postmaster to return the
Service
mail to the sender after 10
Note: It is not effective or calendar days if not
complete if the party delivered.
serving learns that it did not By an affidavit of service of
reach the person to be the person who brought the
served. Filing by pleading or other document
Service by Upon receipt by the other accredited to the service provider, and
facsimile party as indicated in the courier the courier’s official receipt
transmission facsimile printout. and document tracking
At the time of delivery of the number.
Substituted
copy to the clerk of court. By an affidavit of electronic
service
[Sec. 8, Rule 13] filing of the filing party, and
[Sec. 15, Rule 13] a paper copy of the
pleading or other document
8. Proof of filing and service Electronic
transmitted, or
Filing
Proof of Filing
General rule: The filing of a pleading or any A written or stamped
other court submission shall be proved by its acknowledgment of its filing
existence in the record of the case. by the clerk of court.
By an affidavit of electronic
Exception: If the pleading or any other court Filing by other
filing of the filing party, and
document is not in the record, but is claimed to authorized
a copy of the electronic
have been filed by the following modes, proof electronic
shall be: acknowledgment of its filing
means
by the court.
[Sec. 16, Rule 13]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Proof of Service facsimile, or facsimile, or other

Mode Proof of Service other electronic transmission,
A written admission of the authorized and printed proof of
party served, or electronic transmittal.
means of
The official return of the transmission
server, or [Sec. 17, Rule 13]
Personal
Service
The affidavit of the party h. Amendment
serving, containing a
statement of the date, How to amend pleadings
1. Adding an allegation,
place, and manner of
2. Adding the name of any party,
service 3. Striking out an allegation,
Service by 4. Striking out the name of any party,
ordinary mail 5. Correcting a mistake in the name of a party,
or
Note: This 6. Correcting a mistaken or inadequate
mode of allegation or description in any other
respect. [Sec. 1, Rule 10]
service may An affidavit of the person
only be mailing stating the facts Purpose of Amendments to a Pleading
availed of if no showing compliance with The courts should be liberal in allowing
registry Sec. 7, Rule 13. amendments to pleadings to avoid a multiplicity
service is of suits and in order that the real controversies
available in between the parties are presented, their rights
the locality as determined, and the case decided on the
merits without unnecessary delay. [Tiu v. Phil.
per Sec. 7,
Bank of Communication, G.R. No. 151932
Rule 13. (2009)]
An affidavit of the person
mailing stating the facts How to file amended pleadings
Service by showing compliance with When any pleading is amended, a new copy of
registered Sec. 7, Rule 13 and the the entire pleading, incorporating the
amendments, which shall be indicated by
mail registry receipt issued by
appropriate marks, shall be filed. [Sec. 7, Rule
the mailing office. 10]

An affidavit of service No amendment necessary to conform to or

executed by the person authorize presentation of evidence
Service by who brought the pleading When issues are not raised in the pleadings but
accredited or paper to the service are tried with the consent of the parties, they
courier provider, and the courier’s shall be treated as if they had been raised in
official receipt or document the pleading. No amendment of such
tracking number. pleadings deemed amended is necessary to
Service by An affidavit of service cause them to conform to the evidence.
[Sec. 5, Rule 10]
electronic executed by the person
mail, who sent the e-mail,

Page 63 of 525
U.P. LAW BOC CIVIL PROCEDURE
Note: This is a new rule introduced by the
Amended Rules. The old rule provided that in
a situation where issues not raised in the
pleadings were tried with the consent of the
parties, the pleadings should be subsequently
amended on motion of a party to conform to
evidence.
i. Amendment as a matter of right
A party may amend his pleading once as a
matter of right
a. At any time before a responsive pleading is
served, or
b. In the case of a reply, at any time within 10
calendar days after it is served
[Sec. 2, Rule 10]
A motion to dismiss is not a responsive
pleading and does not preclude the exercise of
the plaintiff’s right to amend his complaint.
[Remington Industrial Sales v. CA, G.R. No.
133657 (2002)]
ii. Amendments by leave of court
Substantial amendments may be made only
upon leave of court [Sec. 3, Rule 10]
Requisites
a. Motion for leave of court, accompanied by
the amended pleading sought to be
admitted; [Sec. 10, Rule 15]
b. Notice is given to the adverse party; and
c. Parties are given the opportunity to be
heard. [Sec. 3, Rule 10]
When leave of court to substantially amend
a pleading shall be refused
If it appears to the court that the motion was
made:
1. With intent to delay;
2. With intent to confer jurisdiction on the
court; or
3. The pleading stated no cause of action
from the beginning. [Sec. 3, Rule 10]
Note: This rule merely integrates into the Rules
of Court the landmark case of Swagman Hotels
v. Court of Appeals which provided that a
Page 64 of 525
REMEDIAL LAW
complaint whose cause of action has not
yet accrued cannot be cured or remedied by
an amended or supplemental pleading
alleging the existence or accrual of a cause of
action while the case is pending. [Swagman v.
CA, G.R. No. 161135 (2005)]
iii. Formal amendment
When proper
a. Defect in the designation of the parties, or
b. Other clearly clerical or typographical
errors
[Sec. 4, Rule 10]
How made
Such defects or errors are summarily
corrected by the court, at any stage of the
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse
party.
[Sec. 4, Rule 10]
iv. Effect of amended pleading
1. Supersedes the pleading that it amends,
2. Admissions in the superseded pleadings
may be offered in evidence against the
pleader
Note: The amended rules changed the
word “received” into “offered”, meaning
that the admissions in the superseded
pleadings may not necessarily be received
in evidence. They are considered
extrajudicial admissions.
3. Claims or defenses alleged in the
superseded pleading but not incorporated
or reiterated in the amended pleading are
deemed waived. [Sec. 8, Rule 10]
v. Supplemental pleadings
When proper
A supplemental pleading is filed to set forth
transactions, occurrences or events which
have happened since the date of the pleading
sought to be supplemented. [Sec. 6, Rule 10]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

How made 7. Summons

Upon motion of a party, the court may, upon
reasonable notice and upon such terms as are
Definition
just, permit him or her to serve a supplemental
The writ by which the defendant is notified of
pleading
the action brought against him [Licaros v.
Licaros, G.R. No. 150656 (2003)]
Note: The admission or non-admission of a
supplemental pleading is not a matter of right
By whom issued
but is discretionary on the court. Note the Clerk of court upon directive of the court. [Sec.
language of Sec. 6, Rule 10: “may”.
1, Rule 14]
The adverse party may plead thereto within
Leave of court in case service requires prior
ten (10) calendar days from notice of the order
leave
admitting the supplemental pleading. Any application under this rule for leave to
[Sec. 6, Rule 10]
effect service in any manner for which leave of
court is necessary shall be made by:
Purpose
a. A motion in writing,
To bring into the records new facts which will
b. Supported by affidavit of the plaintiff or
enlarge or change the kind of relief to which the
some person on his behalf setting forth the
plaintiff is entitled. [Ada v. Baylon, G.R. No. grounds for the application. [Sec. 19, Rule
182435 (2012)]
14]
Amended v. Supplemental Pleadings
Supplemental
a. Nature and purpose of
Amended Pleadings summons
Pleadings
Refer to transactions,
i. In relation to actions in personam,
occurrences or
Refer to facts existing in rem, and quasi in rem
events which have
at the time of the
happened since the 1. Action in personam
commencement of
date of the pleading
the action
sought to be Purpose of summons
supplemented a. To acquire jurisdiction over the person of
the defendant in a civil case
Either as a matter of b. To give notice to the defendant that an
Always by leave of
right or by leave of action has been commenced against him.
court
court [1 Riano 376, 2011 Ed.]

Merely supplements, Where the action is in personam, that is, one

Supersedes the and exists side-by- brought against a person on the basis of his
pleading that it side with the original personal liability, jurisdiction over the person of
amends [1 Riano 366, 2011 the defendant is necessary for the court to
Ed.] validly try and decide the case. [Velayo-Fong v.
A new copy of the Velayo, G.R. No. 155488 (2006)]
entire pleading,
incorporating the
No such requirement
amendments, which
exists
shall be indicated by
appropriate marks,
shall be filed

Page 65 of 525
U.P. LAW BOC CIVIL PROCEDURE
2. Action in rem and quasi in rem
Purpose of summons in actions in rem and
quasi in rem
a. Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due process
b. Jurisdiction over the defendant is not
required
c. The court acquires jurisdiction over an
action as long as it acquires jurisdiction
over the res that is the subject matter of the
action. [Macasaet v. Co, Jr., G.R. No.
156759 (2013)]
ii. When summons are issued
Summons shall be issued:
1. Within 5 calendar days from receipt of the
initiatory pleading, and
2. Upon proof of payment of the requisite
legal fees
• Note: The old rules merely required
payment of the requisite legal fees. The
new rules now require proof of such
payment to be submitted with the
initiatory pleading.
Summons shall not be issued, and the case
shall be dismissed if the complaint on its face
is dismissible under Sec. 1, Rule 9. Such
provides for the non-waivable grounds for
dismissal of a complaint, to wit:
1. The court has no jurisdiction over the
subject matter
2. Litis pendentia
3. Res judicata
4. The action is barred by the statute of
limitations. [Sec. 1, Rule 14]
Note: The rule directing the court not to issue
summons in case any of the grounds are
present is similar to the Rules on Small Claims
and Summary Procedure. However, the
grounds under the amended provision are
limited to the non-waivable grounds in Sec. 1,
Rule 9.
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iii. Contents of summons
Contents
1. Summons shall be
a. Directed to the defendant, and
b. Signed by the clerk of court under seal
2. Summons shall contain
a. The name of the court, and the names
of the parties to the action;
b. When authorized by the court upon ex
parte motion, an authorization for the
plaintiff to serve summons to the
defendant;
Note: The plaintiff may serve summons
together with the sheriff, only when the
sheriff, his deputy or proper court
officer fails to serve summons, or if the
summons is to be served outside the
judicial region of the court. In the latter
case, there would be no need for the
sheriff, his deputy, or the proper court
officer to have first failed to serve the
summons before the plaintiff may be
authorized by court to serve summons.
[Sec. 3, Rule 14]
c. A direction that the defendant answer
within the time fixed by the ROC; and
d. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for
3. The following shall be attached to the
original and each copy of the summons
a. A copy of the complaint, and
b. An order for appointment of guardian
ad litem, if any. [Sec. 2, Rule 14]
iv. Duty of counsel
When counsel may be deputized by the
court to serve summons on his client
1. Where summons is improperly served, and
2. A lawyer makes a special appearance on
behalf of the defendant to question the
validity of service of summons. [Sec. 13,
Rule 14]
Note: Due to this new provision in the rules,
when the defendant claims lack of jurisdiction
U.P. LAW BOC CIVIL PROCEDURE
over his person by special appearance, the
court will no longer dismiss the case but
instead will deputize the counsel to serve
summons on his client. This is also in line
with the amendment removing lack of
jurisdiction over the person of the defendant as
a ground for an allowable motion to dismiss. It
remains, however, as an affirmative defense
that may be raised in the answer.
v. Return
When summons shall be served
The server shall complete its service within 30
calendar days from issuance of summons by
the clerk of court and receipt of such. [Sec. 20,
Rule 14]
Return of summons
Within 5 calendar days from service of
summons, the server shall:
1. File with the court a copy of the return, and
2. Serve a copy of the return to the plaintiff’s
counsel personally, by registered mail, or
by electronic means authorized by the
rules. [Sec. 20, Rule 14]
Contents of the return when substituted
service was availed of
1. The impossibility of prompt personal
service within 30 calendar days from issue
and receipt of summons;
2. The date and time of the 3 attempts on at
least 2 different dates to cause personal
service and the details of the inquiries
made to locate the defendant; and
3. Information on the person to whom the
summons was served:
a. The name of the person at least 18
years of age and of sufficient discretion
residing thereat,
b. The name of the competent person in
charge of the defendant’s office or
regular place of business, or
c. The name of the officer of the
homeowners’ association or
condominium corporation or its chief
security officer in charge of the
community or building where the
defendant may be found. [Sec. 20,
Rule 14]
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Note: The enumeration of persons to whom
summons was made is the enumeration of
persons upon whom substituted service may
be made under Sec. 6, Rule 14.
b. Voluntary appearance
The defendant’s voluntary appearance in the
action shall be equivalent to service of
summons.
The inclusion in a motion to dismiss of other
grounds aside from the lack of jurisdiction over
the person of the defendant shall be deemed a
voluntary appearance. [Sec. 23, Rule 14]
Note: It is submitted that despite Sec. 23, Rule
14 mentioning lack of jurisdiction over the
person as a ground to be included in a motion
to dismiss, such still remains to be a prohibited
motion under Sec. 12, Rule 15, as the only
allowable grounds for a motion to dismiss are
lack of jurisdiction over the subject matter, litis
pendencia, res judicata, and prescription. A
motion to dismiss on the basis of lack of
jurisdiction over the defendant should be
dismissed outright. [Sec. 12, Rule 15]
It is also submitted that the allegation of any of
the old grounds for a motion to dismiss under
Rule 16 of the old rules of Civil Procedure
would be tantamount to a voluntary
appearance by the defendant.
c. Who may serve summons
Who may serve summons
1. The sheriff,
2. His or her deputy,
3. Other proper court officer, or
4. The plaintiff together with the sheriff. [Sec.
3, Rule 14]
The enumeration of persons who may validly
serve summons is exclusive. [1 Regalado
245, 2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE
Rules for service of summons by plaintiff
The court shall authorize the plaintiff to serve
summons together with the sheriff upon ex
parte motion in 2 instances:
1. In case of failure of service of summons by
the aforementioned persons, or
2. In cases where summons is to be served
outside the judicial region of the court
where the case is pending.
- Note: There is no need for prior failure
to serve in this case before the plaintiff
may be authorized by the court to
serve.
If the plaintiff is a juridical entity
1. It shall notify the court, in writing, name its
authorized representative, and
2. A board resolution or secretary’s certificate
must be attached stating that such
representative is duly authorized to serve
the summons on behalf of the plaintiff.
If the plaintiff misrepresents that the
defendant was served summons, and it is
later proved that no summons was served:
a. The case shall be dismissed with
prejudice,
b. The proceedings shall be nullified, and
c. The plaintiff shall be meted appropriate
sanctions.
If summons is returned without being
served on any or all the defendants,
The court shall order the plaintiff to cause the
service of summons by other means available
under the Rules.
• Failure to comply with the order shall lead
to dismissal without prejudice. [Sec. 3,
Rule 14]
d. Personal service
How done
1. By handing a copy to the defendant in
person and informing the defendant that he
or she is being served, or
2. If he or she refuses to receive and sign for
it, by leaving the summons within the view
and in the presence of the defendant. [Sec.
5, Rule 14]
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Note: The old provision provides for
“tendering” as a means of service whenever
handing a copy to the defendant in person is
not possible. The amendment merely explains
what tendering means and how it is done.
e. Substituted service
When availed of
Substituted service may be availed of when for
justifiable reasons, the defendant cannot be
served personally after at least 3 attempts on 2
different dates. [This reflects the ruling in the
case of Manotoc v. CA, 499 SCRA 21 (2006)]
Note: As per Sec. 20, Rule 14, the attempts
must be done within the 30 calendar day period
provided for the completion of service of
summons.
How done [Sec. 6, Rule 14]
1. By leaving copies of the summons at the
defendant's residence to a person at
least eighteen (18) years of age and of
sufficient discretion residing therein;
• To be of sufficient discretion, a
person must know how to read and
understand English to comprehend the
import of the summons, and fully
realize the need to deliver the
summons and complaint to the
defendant at the earliest possible time
for the person to take appropriate
action. [Prudential Bank v. Magdamit,
G.R. No. 183795 (2014)]
2. By leaving copies of the summons at the
defendant's office or regular place of
business with some competent person in
charge thereof.
• A competent person includes, but is not
limited to, one who customarily
receives correspondences for the
defendant;
• Must be the one managing the office or
business of the 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
importance, and the prejudicial effects
arising from inaction on the summons.
U.P. LAW BOC CIVIL PROCEDURE
[Prudential Bank v. Magdamit, G.R.
No. 183795 (2014)]
3. By leaving copies of the summons, if
refused entry upon making his or her
authority and purpose known, with any of
the officers of the homeowners' association
or condominium corporation, or its chief
security officer in charge of the community
or the building where the defendant may
be found [This reflects the ruling in the
case of Robinson v. Miralles, G.R. No.
163584 (2006)]; and
4. By sending an electronic mail to the
defendant's electronic mail address, if
allowed by the court. [Sec. 6, Rule 14]
Residence, defined
The place where the person named in the
summons is living at the time of when the
service is made, even though he may be
temporarily out of the country at that time
[Venturanza v. CA, G.R. No. 77760 (1987)]
The residence of a person is his personal,
actual or physical habitation or his actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency [Boleyley v. Villanueva, G.R. No.
128734 (1999)]
f. Constructive service
i. Service upon a defendant where
his identity is unknown or where
his whereabouts are unknown
Service is made by publication
a. With leave of court,
• The order shall specify a reasonable
time not less than 60 calendar days
within which the defendant must
answer.
b. Effected within 90 calendar days from
commencement of the action,
c. In a newspaper of general circulation and
in such places and for such time as the
court may order.
Note: The defendant’s whereabouts must be
ascertained with diligent inquiry.
[Sec. 16, Rule 14]
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ii. Service upon residents
temporarily outside the
Philippines
Service may, by leave of court, be also effected
out of the Philippines as by the means provided
under extraterritorial service. [Sec. 18, Rule 14
in re Sec. 17]
Note: The section referred to is that on
extraterritorial service of summons.
g. Extraterritorial service
When allowed
1. When the defendant does not reside and is
not found in the Philippines, and
2. The action
a. Affects the personal status of the
plaintiff or
b. Relates to, or the subject of which is,
property within the Philippines, in which
the defendant has or claims a lien or
interest, actual or contingent, or
c. In which the relief demanded consists,
wholly or in part, in excluding the
defendant from any interest therein, or
d. The property of the defendant has
been attached within the Philippines.
[Sec. 17, Rule 14]
How summons served
By leave of court, be effected outside the
Philippines
a. By personal service;
b. By means provided for in international
conventions to which the Philippines is a
party;
c. By publication in a newspaper of general
circulation in such places and for such time
as court may order; or
• a copy of the summons and order of the
court shall be sent by registered mail to
the last known address of the
defendant
d. In any other manner the court may deem
sufficient.
Any order granting such leave shall specify a
reasonable time within which the defendant
U.P. LAW BOC CIVIL PROCEDURE
must answer, which shall not be less than 60
calendar days after notice. [Sec. 17, Rule 14]
h. Service upon prisoners and
minors; upon spouses
Upon prisoners
Where the defendant is a prisoner confined
in a jail or institution, service shall be effected
upon him by the officer having the
management of such jail or institution.
• Such officer is deemed a special sheriff
• He or she shall file a return within 5
calendar days from service of summons.
[Sec. 8, Rule 14]
Upon minors or incompetent persons
Where the defendant is a minor, insane, or
incompetent person, service of summons shall
be made:
a. Upon him or her personally, and
b. On his or her legal guardian
i. If none, on his or her guardian ad litem
whose appointment shall be applied for
by the plaintiff
ii. In the case of a minor, on his or her
parent or guardian. [Sec. 10, Rule 14]
Upon spouses
When spouses are sued jointly, service of
summons should be made to each spouse
individually. [Sec. 11, Rule 14]
i. Service upon domestic or
foreign private juridical entities
Upon an entity without juridical personality
a. When applicable
1. Persons are associated in an entity
without juridical personality, and
2. They are sued under the name by
which they are generally or commonly
known
b. Service may be effected upon all the
defendants by serving upon
1. Any one of them, or
2. The person in charge of the office or
place of business maintained in such
name.
Page 70 of 525
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Note: Such service shall not bind any person
whose connection with the entity has, upon due
notice, been severed before the action was
filed. [Sec. 7, Rule 14]
Upon domestic private juridical entity
Service is effected upon:
a. The president,
b. Managing partner,
c. General manager,
d. Corporate secretary,
e. Treasurer, or
f. In- house counsel.
Service may be effected wherever they may be
found, or in their absence or unavailability, on
their secretaries. [Sec. 12, Rule 14]
Note: This is a new provision that seeks to
address the issue of plaintiffs under the old
rules frequently having to ask for alias
summons that would include new addresses of
the officers. This is in line with the amended
rule that alias summons will only be issued for
lost summons.
If service cannot be made on the enumerated
officers or their secretaries, it shall be made
upon the person who customarily received
the correspondence for the defendant at its
principal office. [Sec. 12, Rule 14]
Note: A person who customarily receives
correspondence is also a person to whom
substituted service of summons may be made
after at least 3 attempts on 2 different dates.
[Sec. 6, Rule 14] However, with such provision
under this section, it appears that the
requirement of 3 attempts on 2 different dates
does not apply in this instance. As soon as
service cannot be made on the officers or their
secretaries, service can already be made on
the person customarily receiving
correspondence.
Domestic juridical entity under receivership
or liquidation
Service of summons shall be made on the
receiver or liquidator. [Sec. 12, Rule 14]
U.P. LAW BOC CIVIL PROCEDURE
Note: In case of refusal by any of the persons
mentioned to receive summons for
domestic juridical entities despite at least 3
attempts on 2 different dates, service may be
made electronically, if allowed by the court.
[Sec. 12, Rule 14]
Upon foreign private juridical entities
Juridical entity registered/ has a resident
agent and is doing business in the
Philippines
Service may be made on:
1. Its resident agent designated in
accordance with law,
2. If there is no such agent, on the
government official designate by law to that
effect, or
3. On any of its officers, agents, directors, or
trustees within the Philippines. [Sec. 14,
Rule 14]
Juridical entity not registered/ has no
resident agent but has transacted or is
doing business in the Philippines
Service may, with leave of court, be effected
outside the Philippines through:
1. Personal service coursed through the
appropriate court in the foreign country with
the assistance of the DFA;
2. Publication once in a newspaper of general
circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court order
by registered mail at the last known
address of the defendant;
3. Facsimile;
4. Electronic means with the prescribed proof
of service; or
5. Other means as the court, in its discretion,
may direct. [Sec. 14, Rule 14]
Service upon public corporations
To Whom
Defendant
Summons Served
The Republic of the
Solicitor General
Philippines
Page 71 of 525
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Executive head or
Province, City,
such other officer/s
Municipality, or like
as the law or the
public corporations
court may direct.
[Sec. 15, Rule 14]
j. Proof of service
Proof of service shall
a. Be made in writing by the server and
b. Set forth the manner, place, and date of
service; any papers which have been
served with the process, and the name of
the person who received the papers served
c. Be sworn to when made by a person, other
than the sheriff or his or her deputy. [Sec.
21, Rule 14]
Summons made by electronic mail
Proof of service shall be:
a. A print out of said e-mail,
b. Copy of the summons as served, and
c. The affidavit of the person mailing. [Sec.
21, Rule 14]
Summons made by publication
Proof of service shall be:
a. The affidavit of the publisher, business or
advertising manager,
b. Copy of the publication, and
c. An affidavit showing the deposit of a copy
of the summons and order for publication in
the post office, postage prepaid, directed to
the defendant by registered mail to his or
her last known address [Sec. 22, Rule 14]
Note: The amended rules changed printer to
publisher and removed the foreman or principal
clerk from those who may execute the affidavit.
Effect of defect of proof of service
a. Where the sheriff's return is defective, the
presumption of regularity in the
performance of official functions will not lie.
[Sps. Venturanza v. CA, G.R. No. 77760
(1987)].
b. Defective return is insufficient and
incompetent to prove that summons was
indeed served. [Santiago Syjuco, Inc. v.
Castro, G.R. No. 70403 (1989)].
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c. Party alleging valid summons will now c. With supporting affidavits and other
prove that summons was indeed served. papers if
[Heirs of Manguiat v. CA, G.R. No. 150768 i. Required by the ROC, or
(2008)].
ii. Necessary to prove facts alleged
d. If there are no valid summons, the court did
not acquire jurisdiction which renders null therein. [Sec. 3, Rule 15]
and void all subsequent proceedings and
issuances. [Santiago Syjuco, Inc. v. Form
Castro, G.R. No. 70403 (1989)]. General rule: In writing
The rules applicable to pleadings shall apply to
8. MOTIONS written motions so far as concerns caption,
designation, signature, and other matters of
a. Motions in General form. [Sec. 11, Rule 15]

i. Definition of a Motion Exceptions: Oral

Motions made in:
A motion is any application for relief other 1. Open court or
than by a pleading. [Sec. 1, Rule 15] 2. The course of a hearing or trial

ii. Motions vs. Pleadings Note: Such motions should be immediately

resolved in open court, after the adverse party
Motion Pleading is given the opportunity to argue his or her
opposition. However, when the motion is based
Contains allegations Contains allegations on facts not appearing on record, the court may
of facts [Sec. 3, Rule of the ultimate facts conduct a hearing to:
15] [Sec. 1, Rule 8] 1. Hear the matter on affidavits or
depositions presented by the parties, or
2. The court may direct that the matter be
heard wholly or partly on oral testimony
Prays for a relief [Sec. 1, Rule 15]
or depositions. [Sec. 2, Rule 15]

Generally in writing, Always in writing

Motion for leave
except when made [Sec. 1, Rule 6]
A motion for leave to file a pleading or motion
in open court or
shall be accompanied by the pleading or
during the course of
motion sought to be admitted. [Sec. 10, Rule
a hearing or trial.
15]
[Sec. 2, Rule 15]
iv. Litigious and Non-litigious
Motions; When Notice Of Hearing
iii. Contents and Form of Motions Necessary

Contents What are Litigious Motions

a. Relief sought to be obtained, One which requires the parties to be heard
b. Grounds upon which it is based, and before a ruling on the motion is made by the
court. [1 Riano 368, 2011 Ed.]

Page 72 of 525
U.P. LAW BOC CIVIL PROCEDURE
Litigious motions include:
a. Motion for bill of particulars;
b. Motion to dismiss;
Note: Since a motion to dismiss is now
classified as a litigious motion, such motion
should be resolved within 15 calendar days
from the filing of the opposition to the motion to
dismiss. [Sec. 5(c), Rule 15] Therefore, this
clearly repeals Secs. 2 and 3, Rule 16 of the
old Rules of Court on hearing and resolution of
a motion to dismiss.
c. Motion for new trial;
d. Motion for reconsideration;
e. Motion for execution pending appeal;
f. Motion to amend after a responsive
pleading has been filed;
g. Motion to cancel statutory lien;
h. Motion for an order to break in or for a writ
of demolition;
i. Motion for intervention;
j. Motion for judgment on the pleadings;
k. Motion for summary judgment;
l. Demurrer to evidence;
m. Motion to declare defendant in default; and
n. Other similar motions. [Sec. 5(a), Rule 15]
The period to file an opposition would be 5
calendar days from the receipt of the litigious
motion. The court shall then resolve the motion
within 15 calendar days from receipt of the
opposition or upon expiration of the period to
file such opposition.
Note: No other submissions, other than the
opposition, shall be considered by the court in
resolving the motion. [Sec. 5(c), Rule 15]
Service of Litigious Motions
Litigious motions shall be served by:
1. Personal service;
2. Accredited private courier;
3. Registered mail; or
Page 73 of 525
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4. Electronic means. [Sec. 5(b), Rule 15]
Note: Remember that electronic means of
service may only be availed of with consent of
the other party or with authorization of the
court. [Sec. 9, Rule 13]
No written motion shall be acted upon by the
court without proof of service thereof pursuant
to Section 5(b). [Sec. 7, Rule 15]
Hearing on Litigious Motions
The court may call for a hearing if deemed
necessary for the motion’s resolution and send
notice to all parties concerned, specifying the
time and date of the hearing. [Sec. 6, Rule 15]
Note that the allowance for hearing only
applies to litigious motions, since non-litigious
motions cannot be set for hearing. [Sec. 4, Rule
15]
Motion Day
General Rule: Where the court decides to
conduct a hearing on a litigious motion, it shall
be set on a Friday.
Exception: When a motion requires immediate
action. [Sec. 8, Rule 15]
What are Non-Litigious motions
Motions which the court may act upon without
prejudicing the rights of adverse parties. Such
motions shall not be set for hearing and the
court shall resolve the motion within 5
calendar days from receipt of the motion.
Non-litigious motions include:
a. Motion for issuance of an alias summons;
b. Motion for extension to file an answer;
c. Motion for postponement;
d. Motion for the issuance of a writ of
execution;
e. Motion for the issuance of an alias writ of
execution
U.P. LAW BOC CIVIL PROCEDURE
f. Motion for the issuance of a writ of
possession;
g. Motion for the issuance of an order
directing the sheriff to execute the final
certificate of sale; and
h. Other similar motions. [Sec. 4, Rule 15]
v. Omnibus Motion Rule
General rule: A motion attacking a pleading,
order, judgment, or proceeding shall include all
objections then available. All objections not
included in the motion are deemed waived
[Sec. 9, Rule 15]
Purpose: To require the movant to raise all
available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided. [Manacop v. Court
of Appeals, G.R. No. 104875 (1992)]
Exceptions: Non-waivable grounds under
Sec. 1, Rule 9, namely:
a. Lack of jurisdiction over subject matter
b. Litis pendentia
c. Res judicata
d. Prescription [Sec. 9, Rule 15]
vi. Prohibited Motions
The following motions shall not be allowed:
1. Motion to dismiss except on the following
grounds:
• Lack of jurisdiction over the subject
matter,
• Litis pendentia, or
• That the action is barred by res judicata
or the statute of limitations. [Sec. 12,
Rule 15]
Motion to Dismiss
The Amended Rules of Court have deleted
Rule 16 of the old Rules of Court, which
formerly dealt with motions to dismiss. Despite
this, the Amended Rules do allow the filing of a
Page 74 of 525
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motion to dismiss. The grounds, however, are
limited only to lack of jurisdiction over the
subject matter, litis pendentia, res judicata, and
prescription. [Sec. 12, Rule 15] Notably, the
Amended Rules empower the court to dismiss
a case motu proprio if the aforementioned non-
waivable grounds are apparent on the face of
the complaint. [Sec. 1, Rule 14]
The other grounds for a motion to dismiss
under Rule 16 of the old Rules (i.e. lack of
jurisdiction over the person, improper venue,
lack of capacity to sue, payment/release,
unenforceability under the statute of frauds,
failure to comply with condition precedent) can
now only be raised as affirmative defenses.
[Sec. 12, Rule 8, citing Sec. 5(b), Rule 6]
When a Motion to Dismiss can be Filed
Under the old Rules, a motion to dismiss
should be filed within the time for filing an
answer to the complaint. [Sec. 1, Rule 16, 1997
Rules of Civil Procedure] If a motion to dismiss
was denied, the old Rules provided that the
movant may be allowed to file an answer within
the balance of the period to file an answer, but
not less than 5 days in any event. [Sec. 4, Rule
16, 1997 Rules of Civil Procedure]
However, with the repeal of Rule 16 under the
Amended Rules, it seems that the Rules do not
provide specifically when a motion to dismiss
can be filed. It is therefore submitted that it is
unnecessary for the rules to provide a period
for filing a motion to dismiss, since the grounds
under Sec. 1, Rule 9 are non-waivable. Thus,
a motion to dismiss can be filed at any time
during the proceedings, subject to the
exception of estoppel by laches provided for in
Tijam v. Sibonghanoy [23 SCRA 29 (1968)].
Remedies from the Denial of a Motion to
Dismiss
U.P. LAW BOC CIVIL PROCEDURE
Recall that affirmative defenses, if denied,
cannot be the subject of a motion for
reconsideration, or petition for certiorari,
prohibition, or mandamus. [Sec. 12, Rule 8]
However, if the non-waivable grounds under
Sec. 1, Rule 9 are raised not as affirmative
defenses, but in a motion to dismiss, it is
submitted that the movant may still file a
motion for reconsideration or a petition for
certiorari, mandamus, or prohibition against
the order of denial of the motion to dismiss.
This is because there is no prohibition against
its filing, as opposed to if the ground is set forth
as an affirmative defense in the answer and the
affirmative defense is denied.
Note: The remedy of a petition for certiorari
under Rule 65 is available only when the denial
of the motion to dismiss is tainted with grave
abuse of discretion. Generally, the proper
remedy against the denial of a motion to
dismiss would be going through the usual trial
process, and later, filing a timely appeal
against an adverse judgement. [1 Riano 412,
2016 Bantam Ed.]
2. Motion to hear affirmative defenses;
Note: Such motion is prohibited since under the
Amended Rules, the court is required to act on
the affirmative defenses set out in the answer
within 30 calendar days if the affirmative
defense is among those listed in Sec. 12, Rule
8. The court is also allowed to avail of a
summary hearing within 15 calendar days from
the filing of the answer, and is thereafter
mandated to resolve the affirmative defense
within 30 calendar days from the termination of
the summary hearing if the affirmative
defenses are those set forth in the first
paragraph of Sec. 5(b), Rule 6. [Sec. 12, Rule
8]
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3. Motion for reconsideration of the
court’s action on affirmative defenses;
Note: The denial of an affirmative defense
shall not be the subject of a motion for
reconsideration or a petition for certiorari,
prohibition, or mandamus. [Sec. 12, Rule 8]
However, it is not clear from the amended rules
whether the court’s action of approving an
affirmative defense cannot be the subject to a
motion for reconsideration, since Sec. 12(c),
Rule 15 merely provides that a motion for
reconsideration of the court’s action on an
affirmative defense is a prohibited pleading. It
does not distinguish whether between the
court’s act of either denying or approving the
affirmative defense.
4. Motion to suspend proceedings without
a TRO or injunction issued by a higher
court;
Note: The principle of judicial courtesy justifies
the suspension of proceedings before the
lower courts even without an injunctive writ or
order from the higher court. However, this
remains an exception and may be applied only
if there is a strong probability that the issues
before the higher court would be rendered
moot and moribund as a result of the
continuation of the proceedings in the lower
court. [Trajano v. Uniwide Sales Warehouse
Club, G.R. No. 190253, (2014)]
5. Motion for extension of time to file
pleadings, affidavits, or any other
papers, except a motion for extension to
file an answer as provided by Sec. 11,
Rule 11;
Any pleading may still be filed out of time
without seeking for motion for extension of
time, and it will depend on the court whether it
U.P. LAW BOC CIVIL PROCEDURE
will be admitted. The Rules authorizes the
court, in its discretion, to accept a pleading,
although filed late. [Sec. 11, Rule 11]
6. Motion for postponement intended for
delay, except if it is based on:
• Acts of god,
• Force majeure, or
• Physical inability of the witness to
appear and testify. [Sec. 12, Rule 15]
Allowed motions for postponement
If the motion for postponement is granted, the
presentation of evidence by the moving party
must still be terminated on the dates previously
agreed upon. [Sec. 12, Rule 15]
Note: The dates previously agreed upon refer
to those set forth in the schedule of trial as
required under Sec. 1, Rule 30.
The motion for postponement, whether written
or oral, shall be accompanied by the original
official receipt from the clerk of court
evidencing payment of the postponement fee.
Such receipt evidencing payment of the fee
shall be submitted at the time of the filing of the
motion or not later than the next hearing date.
The clerk shall not accept the motion unless
accompanied by said receipt. [Sec. 12, Rule
15]
Note: Sec. 3, Rule 30 allows postponement of
trial due to illness of party or counsel, provided
that their presence is indispensable and that
the character of illness is such as to render the
non-attendance excusable.
b. Motions for Bill of Particulars
Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter which is not averred
Page 76 of 525
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with sufficient definiteness or particularity to
enable him properly to prepare his responsive
pleading. [Sec. 1, Rule 12]
An action cannot be dismissed on the ground
that the complaint is vague or indefinite. The
remedy of the defendant is to move for a bill of
particulars, or avail of the proper mode of
discovery. [Galeon v. Galeon, G.R. No. L-
30380 (1973)]
i. Purpose and When Applied For
Purpose: To enable the movant to prepare his
or her responsive pleading. [Sec. 1, Rule 12].
It is not to enable the movant to prepare for
trial. When this is the purpose, the appropriate
remedy is to avail of Discovery Procedures
under Rules 23 to 29 [1 Riano 419, 2011 Ed.]
When applied for
1. Before responding to a pleading.
2. If the pleading is a reply, within 10 calendar
days from service thereof. [Sec. 1, Rule 12]
Contents
The motion shall point out
1. The defects complained of,
2. The paragraph wherein they are contained,
and
3. The details desired. [Sec. 1, Rule 12]
The only question to be resolved in such
motion is whether the allegations in the
complaint are averred with sufficient
definiteness or particularity to enable the
movant to properly prepare his responsive
pleading and to prepare for trial. [Tantuico, Jr.
v. Republic, G.R. No. 89114 (1991)]
What cannot be done in a bill of particulars
a. To supply material allegations necessary to
the validity of a pleading
U.P. LAW BOC CIVIL PROCEDURE
b. To change a cause of action or defense
stated in the pleading
c. To state a cause of action or defense other
than the one stated
d. To set forth the pleader’s theory of his
cause of action or a Rule of evidence on
which he intends to reply
e. To furnish evidentiary information [Virata v.
Sandiganbayan, G.R. No. 103527 (1993)]
ii. Actions of The Court
Upon the filing of the motion, the clerk of court
must immediately bring it to the attention of the
court, which may either
1. Deny, or
2. Grant the motion outright, or
3. Allow the parties the opportunity to be
heard. [Sec. 2, Rule 12]
iii. Compliance with the Order and
Effect of Non-compliance
If motion is granted, either in whole or in part,
the pleader must file a bill of particulars or a
more definite statement, within 10 calendar
days from notice of order, unless the court fixes
a different period.
The bill of particulars or a more definite
statement ordered by the court may be filed
either in a separate pleading or in an amended
pleading, serving a copy thereof on the
adverse party [Sec. 3, Rule 12]
A bill of particulars becomes part of the
pleading for which it was intended [Sec. 6, Rule
12]
Effect of non-compliance
1. If the order is not obeyed, or in case of
insufficient compliance therewith, the court
may
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a. Order the striking out of the pleading or
the portions thereof to which the order
is directed, or
b. Make such an order as it may deem
just. [Sec. 4, Rule 12]
2. If the plaintiff fails to obey, his complaint
may be dismissed by the court. This
dismissal shall have the effect of an
adjudication upon the merits, unless
otherwise declared by the court. [Sec. 3,
Rule 17]
3. If the defendant fails to obey, his answer
will be stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff. [Sec. 3,
Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17] [1
Riano 422, 2011 Ed.]
iv. Effect on The Period To File A
Responsive Pleading
Provided that the Motion for Bill of Particulars
is sufficient in form and substance, it stays the
period for the movant to file his responsive
pleading. [1 Riano 422, 2011 Ed.]
When to file responsive pleading
1. After
a. Service of the bill of particulars or of a
more definite pleading, or
b. Notice of denial of his motion
2. The moving party may file his responsive
pleading
a. Within the period to which he was
entitled at the time of filing his motion,
b. Which shall not be less than 5 calendar
days in any event. [Sec. 5, Rule 12]
9. DISMISSAL OF ACTIONS
a. Dismissal with Prejudice
When a motion to dismiss or an affirmative
defense is granted on the following grounds,
U.P. LAW BOC CIVIL PROCEDURE
the order shall bar the refiling of the same
action or claim:
a. The cause of action is barred by prior
judgment;
b. The cause of action is barred by the
statute of limitations;
c. That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished; or
d. That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds.
Note: Such rule does not bar the filing of an
appeal to challenge the granting of the motion
to dismiss or the affirmative defense. [Sec. 13,
Rule 15]
b. Dismissal Upon Notice by
Plaintiff
A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time before
service of
a. The answer, or
b. A motion for summary judgment
Upon such notice being filed, the court shall
issue an order confirming the dismissal. [Sec.
1, Rule 17]
Note: Sec. 1, Rule 17 refers to “before service”,
not “before filing.”
Withdrawal is not automatic but requires an
order by the court confirming the dismissal.
Until thus confirmed, the withdrawal does not
take effect [1 Herrera 1055, 2007 Ed.]
It is not the order confirming the dismissal
which operates to dismiss the complaint. As
the name of the order implies, it merely
confirms the dismissal already effected by the
filing of the notice [1 Riano 489, 2014 Bantam
Ed.]
Page 78 of 525
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General rule: Dismissal is without prejudice
Exceptions:
a. Unless otherwise stated in the notice
b. A notice operates as an adjudication upon
the merits when filed by a plaintiff who has
once dismissed in a competent court an
action based on or including the same
claim
[Sec. 1, Rule 17]
Two-dismissal Rule
The notice of dismissal operates as an
adjudication upon the merits [Sec. 1, Rule
17]
Applies when the plaintiff has
1. A twice dismissed action,
2. Based on or including the same claim,
3. In a court of competent jurisdiction. [1
Riano 490, 2014 Bantam Ed.]
c. Dismissal Upon Motion by
Plaintiff; Effect on Existing
Counterclaim
A complaint shall not be dismissed at the
plaintiff’s instance save upon approval of the
court and upon such terms and conditions as
the court deems proper [Sec. 2, Rule 17]
General rule: Dismissal is without prejudice
Exception: Otherwise specified in the order
[Sec. 2, Rule 17]
Effect on counterclaim
The dismissal shall be without prejudice to the
right of the defendant to prosecute his
counter­claim in a separate action unless
within 15 calendar days from notice of the
motion he manifests his preference to have his
counterclaim resolved in the same action [Sec.
2, Rule 17]
U.P. LAW BOC CIVIL PROCEDURE
Note: Sec. 2, Rule 17 is clear: the counterclaim
is not dismissed, whether it is a compulsory or
a permissive counterclaim because the rule
makes no distinction [1 Riano 491, 2014
Bantam Ed.]
d. Dismissal Due to The Fault of
Plaintiff
The complaint may be dismissed upon
motion of the defendant or upon the court’s
own motion if, for no justifiable cause, the
plaintiff:
1. Fails to appear on the date of the
presentation of his evidence in chief on the
complaint
a. The plaintiff’s failure to appear at the
trial after he has presented his
evidence and rested his case does not
warrant the dismissal of the case on the
ground of failure to prosecute. It is
merely a waiver of his right to cross-
examine and to object to the
admissibility of evidence [Jalover v.
Ytoriaga, G.R. No. L-35989 (1977)]
2. Fails to prosecute his action for an
unreasonable length of time, also called as
non-prosequitur
a. The test for dismissal of a case due to
failure to prosecute is whether or not,
under the circumstances, the plaintiff is
chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA, G.R. No.
103185 (1993)]
b. The dismissal of an action pursuant to
this Rule rests upon the sound
discretion of the court. [Smith Bell and
Co. v. American President Lines Ltd.,
G.R. Nos. L-5304 to L-5324 (1954)]
c. The action should never be dismissed
on a non-suit for want of prosecution
when the delay was caused by the
parties looking towards a settlement.
Page 79 of 525
REMEDIAL LAW
[Goldloop Properties Inc. v. CA, G.R.
No. 99431 (1992)]
3. Fails to comply with the ROC or any court
order. [Sec. 3, Rule 17]
a. A case may be dismissed for failure to
answer written interrogatories under
Rule 25 even without an order from the
court to answer. [Arellano v. CFI
Sorsogon, G.R. No. L-34897 (1975)]
[also see Sec. 5, Rule 29]
General rule: This dismissal shall have the
effect of an adjudication upon the merits and is
thus a dismissal with prejudice. [AFP
Retirement v. Republic, 694 SCRA 118 (2013)]
Exception: Otherwise declared by the court.
[Sec. 3, Rule 17]
Note: Under Sec. 3, Rule 14, the plaintiff’s
failure to comply with the order of the court
to serve summons shall cause the dismissal
of the initiatory pleading without prejudice.
This rule can be seen as an exception to the
general rule that dismissal due to failure to
comply with the order of the court shall cause
dismissal with prejudice.
Effect on counterclaim
Dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the
same or in a separate action [Sec. 3, Rule 17]
e. Dismissal of Counterclaim,
Cross-claim, Or Third-party
Complaint
Provisions of Rule 17 shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint.
Voluntary dismissal by the claimant by notice
as in Sec. 1, Rule 17 shall be made:
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

a. Before a responsive pleading or a motion 5. Advisability of a preliminary reference of

for summary judgment is served; or issues to a commissioner
b. If there is none, before the introduction of 6. Propriety of rendering judgment on the
evidence at trial or hearing. [Sec. 4, Rule pleadings, or summary judgment, or of
17] dismissing the action should a valid ground
therefore be found to exist
10. PRE-TRIAL 7. The requirement for the parties to:
a. Mark their evidence if not yet marked in
the judicial affidavits of their witnesses,
a. Concept of Pre-Trial
Note: The Judicial Affidavit Rule requires
Pre-trial is a procedural device by which the
that documentary or object evidence must
court is called upon, after the filing of the last
be marked and attached to the judicial
pleading, to compel the parties and their
affidavits, with such evidence being
lawyers to appear before it, and negotiate an
marked as Exhibit A, B, C for the plaintiff,
amicable settlement or otherwise make a
and Exhibit 1, 2, 3 for the defendant. [Sec.
formal settlement and embody in a single
2(a)(2), AM No. 12-8-8-SC]
document the issues of fact and law involved in
the action, and such other matters as may aid
b. Examine and make comparisons of
in the prompt disposition in the action, such as
the adverse parties’ evidence vis-
the
a-vis the copies to be marked,
a. Number of witnesses the parties intend to
c. Manifest for the record, stipulations
present
regarding the faithfulness of the
b. Tenor or character of their testimonies
reproductions and the genuineness
c. Documentary evidence
and due execution of the adverse
d. Nature and purpose of each of them
parties’ evidence,
e. Number of trial dates that each will need to
d. Reserve evidence not available at
put on his case. [1 Herrera 1074, 2007 Ed.]
the pre-trial, but only in the
following manner, or else it shall
b. Nature and Purpose
not be allowed
i. Testimonial evidence: by
Pre-trial is mandatory and should be
giving the name or position and
terminated promptly. [Sec. 2, Rule 18]
the nature of the proposed
witness
Purpose of pre-trial is to consider
ii. Documentary/Object
1. Possibility of an amicable settlement or of
evidence: by giving a
a submission to alternative modes of
particular description of the
dispute resolution
evidence
2. Simplification of the issues
8. Such other matters as may aid in the
3. Possibility of obtaining stipulations or
prompt disposition of the action
admissions of facts and of documents to
avoid unnecessary proof
Failure without just cause of a party and
4. Limitation of the number and identification
counsel to appear during pre-trial, despite
of witnesses and the setting of trial dates
notice, shall result in a waiver of any

Page 80 of 525
U.P. LAW BOC CIVIL PROCEDURE
objections to the faithfulness of the
reproductions marked, or their genuineness
and due execution
Failure without just cause to bring the evidence
required shall be deemed a waiver of the
presentation of such evidence. [Sec. 2, Rule
18]
Note: Both waivers mentioned above are
based on lack of just cause either to appear
during pre-trial or to bring the evidence
required.
c. Notice of Pre-Trial
After the last responsive pleading has been
served and filed, the branch clerk of court shall
issue a notice of pre-trial within 5 calendar
days from filing. [Sec. 1, Rule 18]
Note: Under the Amended Rules, there is no
longer a need for the plaintiff to move ex parte
for the case to be set for pre-trial. Such was the
case before, as mandated by AM No. 03-1-09-
SC. Under that circular, the plaintiff used to be
burdened with the duty to move ex parte that
the case be set for pre-trial conference. Such
was done 5 days from the date of the filing of
the reply. If the plaintiff failed to move for such,
it became the duty of the branch clerk of court
to do so. [BPI v. Genuino, G.R. No. 208792
(2015)] The Amended Rules have now deleted
the requirement for the plaintiff to move for pre-
trial, and has directly vested it with the clerk of
court.
The “last pleading” need not be literally
construed as the actual filing of the last
pleading. For the purpose of pre-trial, the
expiration of the period for filing the last
pleading is sufficient. [Sarmiento v. Juan, G.R.
No. L-56605 (1983)]
Page 81 of 525
REMEDIAL LAW
The sufficiency of the written notice of pre-trial
is irrelevant where evidence shows that
counsel and the parties actually knew of the
pre-trial. [Bembo v. CA, G.R. No. 116845
(1995)]
When pre-trial conducted
The notice of pre-trial shall set pre-trial to be
conducted not later than 60 calendar days
from the filing of the last responsive pleading.
[Sec. 1, Rule 18]
Contents of Notice of Pre-Trial
The notice of pre-trial shall include the dates
set for:
a. Pre-trial;
b. Court-Annexed Mediation (CAM); and
c. Judicial Dispute Resolution (JDR), if
necessary [Sec. 3, Rule 18]
Service of Notice of Pre-Trial
The notice of pre-trial shall be served on
counsel, or on the party if he or she has no
counsel [Sec. 3, Rule 18]
d. Appearance of Parties; Effect of
Failure to Appear
It shall be the duty of the parties and their
counsel to appear at:
a. Pre-trial,
b. Court-annexed mediation, and
c. Judicial dispute resolution, if necessary.
[Sec. 4, Rule 18]
Note: Both parties and their counsel are
required to attend. Appearance of either only
the party or his counsel counts as non-
appearance, unless:
Excused non-appearance
Appearance of a party and counsel may only
be excused for:
a. Acts of god,
U.P. LAW BOC CIVIL PROCEDURE
b. Force majeure, or
c. Duly substantiated physical inability. [Sec.
4, Rule 18]
Appearance by Representative
A representative may appear on behalf of a
party, but must be fully authorized in writing to:
a. Enter into an amicable settlement,
b. To submit to alternative modes of dispute
resolution, and
c. To enter into stipulations or admissions of
facts and documents. [Sec. 4, Rule 18]
Note: It is not sufficient for the representative to
be given the power to enter into one or two of
the matters enumerated. An incomplete
authority does not satisfy the requirement of
the Rules and should be deemed the
equivalent of having no authority at all. [1 Riano
429, 2016 Bantam Ed.]
Moreover, only the authorization is required in
order for a representative to appear on behalf
of a party. A ground for excused non-
appearance need not concur with the written
authorization in order to allow a representative
to appear on behalf of the party.
The written authorization must be in the form of
a special power of attorney as authority to
enter into amicable settlement must be in such
form [Sec. 23, Rule 138; Art. 1878(3), Civil
Code]
Effect of failure to appear
Note: The party and counsel must have been
duly notified and their failure to appear was
without valid cause. It is only then that the
following effects occur upon non-appearance
of both party and counsel:
Page 82 of 525
REMEDIAL LAW
i. By the plaintiff and counsel
The action shall be dismissed with prejudice,
unless otherwise ordered by the court. [Sec. 5,
Rule 18]
Remedy: Motion for reconsideration, then
appeal
Note: This would be the proper remedy
because dismissal with prejudice amounts to
an adjudication on the merits and is thus, final.
[1 Riano 426, 2016 Bantam Ed.]
ii. By the defendant and counsel
The plaintiff shall be allowed to present
evidence ex parte within 10 calendar days from
termination of pre-trial, and judgment shall be
rendered based on the evidence offered. [Sec.
5, Rule 18]
Remedy: Motion for reconsideration, and if the
denial is tainted with grave abuse of discretion,
a petition for certiorari
Note: This is because the order of the court
allowing the plaintiff to present evidence ex
parte does not dispose of the case with finality
and the order is, therefore, interlocutory and
not appealable. [1 Riano 428, 2016 Bantam
Ed. citing Sec. 1(b), Rule 41]
The non-appearance of the defendant in pre-
trial is not a ground to declare him in default.
While the effect of the failure of the defendant
to appear at the pre-trial is similar to that of
default (possible presentation of evidence ex
parte), under the Rules, this consequence is
not to be called a declaration of default. [1
Riano 302, 2016 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

e. The documents or other object evidence to

Default by Failure to appear
be marked, stating the purpose thereof;
defendant [Sec. 3, by defendant [Sec.
f. The names of the witnesses, and the
Rule 9] 5, Rule 18]
summary of their respective testimonies;
Upon motion of the Not required and
claiming party with g. A brief statement of points of law and
notice to the citation of authorities. [Sec. 6, Rule 18]
defending party
Legal effect of representations and
Requires proof of Not required statements in the pre-trial brief
failure to answer The parties are bound by the representations
and statements in their respective pre-trial
Court may render Court renders briefs. [A.M. 03-1-09-SC (2004)]
judgment without judgment based on
receiving evidence the evidence Note: Representations and statements in the
presented ex parte pre-trial briefs are in the nature of judicial
admissions [Sec. 4, Rule 129]
Judgment by default Judgment ex parte

Effect of failure to file:

Relief awarded must No such limitation
be the same in
nature and amount
as prayed for in the
complaint
e. Pre-Trial Brief; Effect of Failure
to File
When to file and serve pre-trial brief
The parties shall file with the court and serve
on the adverse party to ensure receipt at least
3 calendar days before the date of pre-trial
their pre-trial briefs. [Sec. 6, Rule 18]
Contents of pre-trial brief:
a. A concise statement of the case and the
reliefs prayed for;
b. A summary of admitted facts and proposed
stipulation of facts;
c. The main factual and legal issues to be
tried or resolved;
d. The propriety of referral of factual issues to
commissioners;
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
[Sec. 6, Rule 18] Therefore, the following
sanctions are meted out to those failing to file
their respective pre-trial briefs:
1. Waiver of any objections to the faithfulness
of the reproductions marked, or their
genuineness and due execution, [Sec. 2,
Rule 18]
2. If plaintiff and counsel fail to appear
• The action will be dismissed with
prejudice, unless otherwise ordered by
the court
If defendant and counsel fail to appear
• The plaintiff shall be allowed to present
evidence ex parte within 10 calendar
days from termination of pre-trial, and
judgment shall be rendered based on
the evidence offered. [Sec. 5, Rule 18]

Page 83 of 525
U.P. LAW BOC CIVIL PROCEDURE
f. Pre-Trial Order
When is a Pre-trial order Issued
The court shall issue and order within 10
calendar days from termination of pre-trial.
[Sec. 7, Rule 18]
Effects of pre-trial order
The contents of the order shall control the
subsequent course of the action, unless:
a. The order is modified before trial to prevent
manifest injustice, or [Sec. 7, Rule 18]
b. There are issues impliedly included therein
or may be inferable therefrom by
necessary implication. [Philippine Export
and Foreign Loan Guarantee Corp. v.
Amalgamated Management and
Development Corp., G.R. No. 177729
(2011)]
Contents of a pre-trial order
a. An enumeration of the admitted facts;
b. The minutes of the pre-trial conference
prepared by the branch clerk of court [Sec.
2, Rule 18];
c. The legal and factual issued to be tried;
d. The applicable law, rules, and
jurisprudence;
e. The evidence marked;
f. The specific trial dates for continuous trial,
which shall be within the period provided by
the rules;
g. The case flowchart to be determined by the
court
• Contains the different stages of the
proceedings up to the promulgation of
the decision and the use of time frames
for each stage in setting the trial dates.
h. A statement that the one-day examination
of witness rule and most important witness
rule shall be strictly followed; and
• One day examination of witness rule
The One-Day Examination of Witness
Rule, that is, a witness has to be fully
Page 84 of 525
REMEDIAL LAW
examined in one (1) day only, shall be
strictly adhered to subject to the courts'
discretion during trial on whether or not
to extend the direct and/or cross-
examination for justifiable reasons
[Item I-A-5-i, A.M. No. 03-1-09-SC]
• Most important witness rule
The court shall determine the most
important witnesses to be heard and
limit the number of witnesses (Most
Important Witness Rule) [Item I-A-5-j,
AM No. 03-1-09-SC]
The court shall require the parties
and/or counsel to submit to the Branch
COC the names, addresses and
contact numbers of the witnesses to be
summoned by subpoena [Item I-A-5-l,
AM No. 03-1-09-SC]
i. A statement that the court shall render
judgment on the pleadings or summary
judgment, as the case may be. [Sec. 7,
Rule 18]
Use of Judicial Affidavits
The direct testimony of witnesses for the
plaintiff shall be in the form of judicial
affidavits. However, even witnesses for the
defendant are required to submit judicial
affidavits, which likewise take the place of their
direct testimony. [AM No. 12-8-8-SC, Sec.
2(a)(1)]
After identification of such affidavits, cross-
examination shall proceed immediately. [Sec.
7, Rule 18]
Postponement of presentation of witnesses
General Rule: Postponement of presentation
of the parties’ witnesses at a scheduled date is
prohibited.
• Effect of failure to appear without valid
cause: The presentation of the scheduled
witness will proceed with the absent party
U.P. LAW BOC CIVIL PROCEDURE
Exception: A motion for postponement for
presentation of witnesses is allowed if the
postponement is based on:
a. Acts of God,
b. Force majeure, or
c. Duly substantiated inability of the witness
to appear and testify.
Note: The party causing the postponement
must still finish his presentation of evidence
within the remaining dates previously agreed
upon. [Sec. 7, Rule 18 in relation to Sec. 2,
Rule 30]
Conduct of pre-trial
The judge shall be the one to ask questions
on issues raised by the parties, and all
questions or comments by counsel or parties
must be directed to the judge to avoid hostilities
between the parties. [A.M. No. 03-1-09-SC
(2004)]
Motu proprio order for summary judgment
or judgment on the pleadings
The court may motu proprio include in the pre-
trial order that the case be submitted for
summary judgment or judgment on the
pleadings without need of position papers or
memoranda, and without prejudice to a party
moving for either judgement on the pleadings
or summary judgement when:
a. There be no more controverted facts,
b. No more genuine issue as to any material
fact,
c. There be an absence of any issue, or
d. Should the answer fail to tender an issue.
[Sec. 10, Rule 18]
Note: Such order is deemed an interlocutory
order as it is included in the pre-trial order.
However, the order of the court submitting the
case for such judgment shall not be subject to
Page 85 of 525
REMEDIAL LAW
appeal or certiorari as provided for expressly
under Sec. 10, Rule 18.
Judgment shall be rendered within 90 calendar
days from termination of pre-trial. [Sec. 10,
Rule 18]
Court-Annexed Mediation (CAM)
After pre-trial and after the issues are joined,
the court shall refer the parties for mandatory
CAM.
Period: Not exceeding 30 calendar days
without extension.
[Sec. 8, Rule 18]
Note: A.M. 11-1-6-SC-PHILJA insofar as it
provides that an extended period of another 30
days may be granted by the court upon motion
by the mediator and with the conformity of the
parties shall no longer apply.
Effect of failure of mediation:
a. Proceed with trial; or
b. If the judge is convinced that settlement is
possible, referral to another court to
proceed with JDR.
Judicial Dispute Resolution (JDR)
If the judge of the court to which the case is
originally raffled is convinced that settlement is
still possible, the case may be referred to
another court for JDR.
Period: Non-extendible period of 15 calendar
days from notice of failure of CAM. Note that
the period to conduct JDR is included in the
period for the presentation of plaintiff’s
evidence. [Sec. 1[a][i], Rule 30]
Effect of failure: Trial before the original court
shall proceed on the dates agreed upon.
[Sec. 9, Rule 18]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: JDR is no longer mandatory as provided

Pre-trial in a Pre-trial in a
for under A.M. 11-1-6-SC-PHILJA due to the
Civil Case Criminal Case
amended rules. The aforementioned A.M. also
[Rule 18] [Rule 118]
provides for a 30-day JDR for first level courts,
a 60-day JDR for second level courts, and
discretion on the part of the JDR judge to order As to Not later than After
a longer period of JDR. Such provisions are when 60 calendar arraignment
now repealed due to the Amended Rules conducted days from the and within 30
providing for a non-extendible shorter period of filing of the last days from the
15 calendar days for JDR. responsive date the court
pleading. acquires
Confidentiality [Sec. 1] jurisdiction
All proceedings during CAM and JDR shall be over the
confidential. [Sec. 9, Rule 18] person of the
accused
Effect of non-appearance at CAM or JDR
Note: Non-appearance at CAM or JDR, if Exception: If
necessary, shall be deemed as non- special laws
appearance at pre-trial. [Sec. 3, Rule 18] and circulars
provide for a
Therefore, the following sanctions are meted shorter period
out to non-appearing parties at CAM or JDR:
1. Waiver of any objections to the faithfulness [Sec. 1]
of the reproductions marked, or their
As to need There is no Ordered by the
genuineness and due execution, [Sec. 2,
of motion longer a need court and no
Rule 18]
2. If plaintiff and counsel fail to appear for the plaintiff motion is
to move ex required from
• The action will be dismissed with
parte to set the either party
prejudice, unless otherwise ordered by
case for pre- [Sec. 1]
the court
trial. Under the
If defendant and counsel fail to appear
Amended
• The plaintiff shall be allowed to present
Rules, the
evidence ex parte within 10 calendar
clerk of court
days from termination of pre-trial, and
should issue
judgment shall be rendered based on
the notice of
the evidence offered. [Sec. 5, Rule 18]
pre-trial within
5 calendar
g. Pre-Trial in Civil Cases vs. Pre-
days from
Trial in Criminal Cases
filing of the last
responsive
pleading.
[Sec. 1]

Page 86 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

As to Mandatory Mandatory As to The pre-trial Shall be

whether or [Sec. 2] [Sec. 1] agreement order shall reduced in
not s of include an writing and
mandatory admission enumeration signed by the
s made of the admitted accused and
As to Of the plaintiff If the counsel
facts and counsel,
effect of – the case for the accused
proposed otherwise, they
failure to shall be or the
appear stipulation of cannot be used
dismissed with prosecutor
facts. [Sec. against the
prejudice, does not
7(a)] accused. [Sec.
unless the appear at the
2]
court orders pre-trial
conference
Of the and does not 11. INTERVENTION
defendant – offer an
the plaintiff acceptable Definition of Intervention
shall be excuse for his A proceeding in a suit or an action by which a
allowed to lack of third person is permitted by the court to
present cooperation, make himself a party, either:
evidence ex the court may 1. Joining plaintiff in claiming what is sought
parte, and impose proper by the complaint,
judgment shall sanctions or 2. Uniting with defendant in resisting the
be rendered penalties. [Sec. claims of the plaintiff, or
based thereon 3] 3. Demanding something adverse to both of
[Sec. 5, Rule them. [1 Herrera 1117, 2007 Ed., citing
18] Gutierrez v. Villegas, G.R. No. L-11848
(1962)]
As to The court shall Not in the
possibility consider this enumeration to
Purpose of Intervention
of an matter [Sec. be considered.
Its purpose is to afford one not an original party,
amicable 2(a)] [Sec. 1]
yet having a certain right/interest in the pending
settlement
case, the opportunity to appear and be
As to A pre-trial brief A pre-trial brief joined so he could assert or protect such
requireme is specifically is not required right/interest [Cariño v. Ofilada, G.R. No.
nt of Pre- required to be under Rule 102836 (1993)]
Trial Brief submitted 118.
[Sec. 6] Nature of Intervention
Intervention cannot alter the nature of the
action and the issues already joined. [Castro v.
David, 100 Phil 454 (1956)]

Intervention is never an independent action,

but is ancillary and supplemental to the
existing litigation. [Saw vs CA, 195 SCRA 740

Page 87 of 525
U.P. LAW BOC CIVIL PROCEDURE
(1991)] An independent controversy cannot be
injected in the suit by intervention since it would
enlarge the issues and expand the scope of the
remedies. [Mactan-Cebu Intl Airport Authority
vs Heirs of Minoza, 641 SCRA 520 (2011)]
a. Requisites for Intervention
1. A motion for leave to intervene filed at any
time before rendition of judgement by the
trial court [Sec. 2, Rule 19]
Note: A motion for intervention is a litigious
motion. Therefore, the court shall resolve
the motion within 15 calendar days from
receipt of the opposition or upon expiration
of the period to file such opposition. The
period to file an opposition would be 5
calendar days from the receipt of such
opposition. [Sec. 5, Rule 15]
2. A legal interest:
a. In the matter in litigation;
b. In the success of either of the parties;
c. An 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
3. Intervention will not unduly delay or
prejudice the adjudication of rights of the
original parties
4. Intervenor’s rights may not be fully
protected in a separate proceeding. [Sec.
1, Rule 19; Lorenza Ortega v. CA, G.R. No.
125302 (1998)]
Meaning of legal interest
The interest which entitles a person to
intervene in a suit must be on the matter in
litigation and of such direct and immediate
character that the intervenor will either gain or
lose by the direct legal operation and effect of
the judgment [1 Regalado 324-325, citing 6318
v. Nocom, G.R. No. 175989 (2008)]
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REMEDIAL LAW
The interest must be actual and material, a
concern which is more than mere curiosity, or
academic or sentimental desire; it must not be
indirect and contingent, indirect and remote,
conjectural, consequential or collateral [Virra
Mall Tenants v. Virra Mall, G.R. No. 182902
(2011)]
Notwithstanding the presence of a legal
interest, permission to intervene is subject to
the sound discretion of the court, the
exercise of which is limited by considering
"whether or not the intervention will unduly
delay or prejudice the adjudication of the rights
of the original parties and whether or not the
intervenor’s rights may be fully protected in a
separate proceeding [Virra Mall Tenants v.
Virra Mall, G.R. No. 182902 (2011)]
b. Time to Intervene
The motion to intervene may be filed at any
time before rendition of judgment by the trial
court. [Sec. 2, Rule 19]
How effected
a. By filing a motion to intervene,
b. Attaching a copy of the pleading-in-
intervention, and
c. Serving the motion and pleading-in-
intervention on the original parties [Sec. 2,
Rule 19]
Pleadings-in-intervention
a. Complaint-in-intervention – If intervenor
asserts a claim against either or all of the
original parties
b. Answer-in-intervention – If intervenor
unites with the defending party in resisting
a claim against the latter
[Sec. 3, Rule 19]
c. Answer to complaint-in-intervention - It
shall be filed within 15 calendar days from
notice of the order admitting the complaint-
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

in-intervention, unless a different period is

Subpoena Summons
fixed by the court [Sec. 4, Rule 19]

A process directed to A direction that the

c. Remedy for the Denial of Motion
a person requiring defendant answer
to Intervene
him to attend and to within the time fixed
testify. It may also by the ROC [Sec. 2,
An improper denial of a motion for intervention
require him to bring Rule 14]
is correctable by appeal [1 Regalado 324, 2010
with him any books,
Ed., citing Ortiz v. Trent, G.R. No. 5099 (1909)
and Hospicio de San Jose v. Piccio, G.R. No. documents, or other
things under his
L-8540 (1956)]
control [Sec. 1, Rule
But if there is grave abuse of discretion, 21]
mandamus will lie, where there is no other Directed to a person Directed to the
plain, speedy and adequate remedy [1 [Sec. 1, Rule 21] defendant [Sec. 2,
Regalado 324, 2010 Ed., citing Dizon v. Rule 14]
Romero, G.R. No. L-26252 (1968) and Macias
v. Cruz, G.R. No. L-28947 (1973)] Costs for court Tender of costs not
attendance and the required by Rule 14
Remedy for granting of the motion to production of
intervene documents and other
An improper granting of a motion for materials subject of
intervention may be controlled by certiorari and the subpoena shall be
prohibition. [1 Regalado 324, 2010 Ed., citing tendered or charged
Pflieder v. De Britanica, G.R. No. L-19077 accordingly. [Sec. 6,
(1964)] Rule 21]

12. SUBPOENA Who may issue

Definition
A process directed to a person requiring him or
her:
1. To attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority, or for
the taking of his or her deposition
2. Also to bring any books, documents, or
other things under his or her control. [Sec.
1, Rule 21]
1. Court before whom the witness is required
to attend
2. Court of the place where the deposition is
to be taken
3. Officer or body authorized by law to do so
in connection with investigations
conducted by said officer or body, or
4. Any justice of the SC or of the CA, in any
case or investigation pending within the
Philippines. [Sec. 2, Rule 21]
Form and contents
1. Shall state the name of the court and the
title of the action or investigation
2. Shall be directed to the person whose
attendance is required

Page 89 of 525
U.P. LAW BOC CIVIL PROCEDURE
3. For subpoena duces tecum, shall also
contain a reasonable description of the
books, documents or things demanded
which must appear to the court prima facie
relevant. [Sec. 3, Rule 21]
When issued against prisoners
When applied for, the judge or officer shall
examine and study carefully the application to
determine whether it is made for a valid
purpose. [Sec. 2, Rule 21]
When Supreme Court authorization
required
When the subpoena for appearance or
attendance in any court is issued against a
prisoner:
1. Sentenced to death, reclusion perpetua, or
life imprisonment, and
2. Confined in any penal institution. [Sec. 2,
Rule 21]
Personal appearance in court; same effect
as subpoena
A person present in court before a judicial
officer may be required to testify as if he or she
were in attendance upon a subpoena. [Sec 7,
Rule 21]
Subpoena for depositions
Proof of service of notice to take a deposition
shall constitute sufficient authorization for the
issuance of subpoenas for the persons named
in such notice.
Note: In order to issue a subpoena duces
tecum, an order of the court shall be necessary.
[Sec 5, Rule 21]
a. Subpoena Duces Tecum
A process directed to a person requiring him to
bring with him books, documents, or other
things under his control [Sec. 1, Rule 21]
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REMEDIAL LAW
The subpoena duces tecum is, in all respects,
like the ordinary subpoena ad testificandum,
with the exception that it concludes with an
injunction that the witness shall bring with
him and produce at the examination the
books, documents, or things described in
the subpoena [see Sec. 1, Rule 21]
Note the requirements for a subpoena duces
tecum, see item (3) of “Form and contents”
above.
b. Subpoena Ad Testificandum
A process directed to a person requiring him to
attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by
competent authority or for the taking of his
deposition [Sec. 1, Rule 21]
Note: This is the technical and descriptive term
for the ordinary subpoena. [1 Regalado 330,
2010 Ed.]
c. Service of Subpoena
Service of a subpoena shall be made in the
same manner as personal or substituted
service of summons [Sec. 6, Rule 21]
Formalities
a. The original is exhibited to the person
served;
b. A copy is delivered to him; and
c. Costs for court attendance and the
production of documents and other
materials subject of the subpoena shall be
tendered or charged accordingly. [Sec. 6,
Rule 21]
When made: must be made so as to allow the
witness a reasonable time for preparation and
U.P. LAW BOC CIVIL PROCEDURE
travel to the place of attendance [Sec. 6, Rule
21]
d. Compelling Attendance of
Witnesses; Contempt
Warrant to compel attendance
The court which issued the subpoena may
issue a warrant to the sheriff or his or her
deputy to arrest the witness and to bring him or
her before the court or officer where his or her
attendance is required, upon
a. Proof of service, and
b. Failure of witness to attend. [Sec. 8, Rule
21]
Costs
The cost of such warrant and seizure of such
witness shall be paid by the witness if the
court issuing it shall determine that his or her
failure to answer the subpoena was willful and
without just excuse [Sec. 8, Rule 21]
Failure to obey
Effect of failure by any person without
adequate cause to obey a subpoena served
upon him or her:
a. Contempt of court who issued the
subpoena, or
b. Punishment in accordance with the
applicable law or rule if the subpoena was
not issued by a court. [Sec. 9, Rule 21]
When Sec. 8 and Sec. 9 will not apply
Provisions regarding the compelling of
attendance and contempt shall not apply to a:
a. Witness who resides more than 100 km
from his or her residence to the place
where he or she is to testify by the ordinary
course of travel; or
b. Detention prisoner if no permission of the
court in which his or her case is pending
was obtained. [Sec. 10, Rule 21]
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REMEDIAL LAW
Viatory Right
The right not to be compelled to attend upon a
subpoena by reason of the distance from the
residence of the witness to the place where he
is to testify is sometimes called the viatory
right of a witness [1 Regalado 334-335, 2010
Ed.]
Note: Such right applies only in civil cases, not
criminal cases. [Genorga v. Quitain, A.M. No.
981-CFI (1977)]
e. Quashing of Subpoena
For quashing subpoena duces tecum
1. A motion is promptly made and, in any
event, at or before the time specified
therein
2. Grounds
a. Subpoena is unreasonable and
oppressive, or
b. Relevancy of the books, documents or
things does not appear, or
c. Person in whose behalf the subpoena
is issued fails to advance the
reasonable cost of the production
thereof
d. Witness fees and kilometrage allowed
by these Rules were not tendered
when the subpoena was served. [Sec.
4, Rule 21]
For quashing subpoena ad testificandum
a. Witness is not bound thereby, or
b. Witness fees and kilometrage allowed by
the ROC were not tendered when the
subpoena was served. [Sec. 4, Rule 21]
13. COMPUTATION OF TIME
Applicability
In computing any period of time:
a. Prescribed or allowed by the Rules,
b. By order of the court, or
U.P. LAW BOC CIVIL PROCEDURE
c. By any applicable statute. [Sec. 1, Rule 22]
How to compute time
The day of the act/event from which the
designated period begins to run is the
excluded and the date of performance
included.
Note: If the last day of the period falls on a
Saturday, Sunday, or legal holiday in the place
where the court sits, the time shall not run
until the next working day. [Sec. 1, Rule 22]
Effect of interruption
Should an act be done which interrupts the
running of the period, the allowable period after
such interruption shall start to run on the day
after notice of cessation of the cause
thereof.
Note: The day of the act that caused the
interruption, shall be excluded in the
computation of the period. [Sec. 2, Rule 22]
14. MODES OF DISCOVERY
Discovery
A device employed by a party to obtain
information about relevant matters on the
case from the adverse party in the preparation
for trial. [1 Riano 437, 2016 Bantam Ed.]
Purpose
To permit mutual knowledge before trial of all
relevant facts gathered by both parties so that
either party may compel the other to disgorge
facts whatever he has in his possession [1
Riano 437, 2016 Bantam Ed.]
Modes of Discovery
1. Depositions pending actions [Rule 23]
2. Depositions before action or pending
appeal [Rule 24]
3. Interrogatories to parties [Rule 25]
4. Admission by adverse party [Rule 26]
5. Production or inspection of documents or
things [Rule 27]
Page 92 of 525
REMEDIAL LAW
6. Physical and mental examination of
persons [Rule 28]
a. Depositions Pending Action;
Depositions Before Action or
Pending Appeal
i. Meaning of Deposition
Deposition – taking of testimony out of court
of any person, whether party to the action or
not but at the instance of a party to the action.
It is taken out of court. [1 Riano 438, 2016
Bantam Ed.]
Methods
a. By oral examination, or
b. By written interrogatory. [Sec. 1, Rule 23]
Kinds of depositions
1. Depositions pending action [Rule 23]
2. Depositions before action or pending
appeal [Rule 24]
Depositions pending action
The testimony of any person may be taken
upon ex parte motion of a party.
Note: The attendance of witnesses may be
compelled by the use of subpoena as provided
in Rule 21. [Sec. 1, Rule 23]
Deposition of a person deprived of liberty
The deposition may be taken only by leave of
court on such terms as the court
prescribes. [Sec. 1, Rule 23]
Before whom depositions are taken
a. Within the Philippines, it may be taken
before a
i. Judge,
ii. Notary public, or
iii. Any person authorized to administer
oaths, as stipulated by the parties in
writing. [Sec. 14, Rule 23]
[Sec. 10, Rule 23]
b. Within a foreign state or country, it may be
taken
i. On notice before a secretary of
embassy or legation, consul general,
U.P. LAW BOC CIVIL PROCEDURE
consul, vice- consul, or consular agent
of the Philippines,
ii. Before such person or officer as may
be appointed by commission or under
letters rogatory, or
iii. Any person authorized to administer
oaths as stipulated by parties in writing.
[Sec. 14, Rule 23]
[Sec. 11, Rule 23]
Disqualification by interest
No deposition shall be taken before a person
who is
a. A relative within the 6th degree of
consanguinity or affinity,
b. An employee or counsel of any of the
parties,
c. A relative within the same degree, or
employee of such counsel, or
d. Any person financially interested in the
action.
[Sec. 13, Rule 23]
Taking depositions upon oral examination
1. A party desiring to take the deposition of
any person upon oral examination shall
give reasonable notice in writing to
every other party to the action. The
notice shall state:
a. The time and place for taking the
deposition,
b. The name and address of each person
to be examined, if known, and
c. if the name is not known, a general
description sufficient to identify him or
the particular class or group to which
he belongs.
Note: On motion of any party upon whom the
notice is served, the court may for cause shown
enlarge or shorten the time [Sec. 15, Rule 23]
2. An order for protection of the parties
and the deponent may be issued by the
court where the action is pending:
a. After notice is served,
b. Upon motion by any party or the
person to be examined,
c. For good cause shown
[Sec.16, Rule 23]
Page 93 of 525
REMEDIAL LAW
3. The attendance of the witnesses may be
compelled by the use of a subpoena [Sec.
1, Rule 23]
4. Examination and cross-examination of
deponents may proceed as permitted at
the trial under Secs. 3 to 18 of Rule 132
[Sec 3, Rule 23]
5. All objections made at the time of the
examination to the qualifications of the
officer taking the deposition, or to the
manner of taking it, or to the evidence
presented, or to the conduct of any party,
and any other objection to the proceedings,
shall be noted by the officer upon the
deposition. Evidence objected to shall be
taken subject to the objections [Sec. 17,
Rule 23]
Effect of taking depositions
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition. [Sec. 7, Rule 23]
Depositions before actions
Referred to as perpetuation of testimony
because their objective is to perpetuate the
testimony of a witness for future use, in the
event of further proceedings. [1 Regalado 363,
2010 Ed.]
Requisites
a. Any person who desires to perpetuate
i. his own testimony; or
ii. the testimony of another person
b. Regarding any matter that may be
cognizable in any court of the Philippines.
[Sec. 1, Rule 24]
Procedure for deposition before action
1. File a verified petition in the court of the
place of the residence of any expected
adverse party. The petition shall be entitled
in the name of the petitioner and shall show
that:
a. The petitioner expects to be a party to
an action in a court of the Philippines
but is presently unable to bring it or
cause it to be brought,
U.P. LAW BOC CIVIL PROCEDURE
b. The subject matter of the expected
action and his interest therein,
c. The facts which he desires to
establish by the proposed testimony
and his reasons for desiring to
perpetuate it,
d. The names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known, and
e. The names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit
Note: Such petition shall ask for an order
authorizing the petitioner to take the
depositions of the persons sought to be
examined who are named in the petition for the
purpose of perpetuating their testimony.
[Sec. 2, Rule 24]
2. The petitioner shall serve a notice upon
each person named in the petition as an
expected adverse party, together with a
copy of the petition, stating that the
petitioner will apply to the court, at a time
and place named therein, for the order
described in the petition.
• At least 20 calendar days before the
date of the hearing, the court shall
cause notice thereof to be served on
the parties and prospective deponents
in the manner provided for service of
summons. [Sec. 4, Rule 23]
3. If the court is satisfied that the perpetuation
of the testimony may prevent a failure or
delay of justice, it shall make an order
designating or describing the persons
whose deposition may be taken and
specifying the subject matter of the
examination and whether the depositions
shall be taken upon oral examination or
written interrogatories. The depositions
may then be taken in accordance with Rule
23 before the hearing [Sec. 4, Rule 24]
Page 94 of 525
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Deposition pending appeal
If an appeal has been taken or the time for
taking such has not yet expired, the court in
which the judgment was rendered may allow
the taking of depositions of witnesses to
perpetuate their testimony for use in the event
of further proceedings in said court. [Sec. 7,
Rule 24]
Procedure for deposition pending appeal
1. The party who desires to perpetuate the
testimony may make a motion in the said
court for leave to take the depositions,
upon the same notice and service thereof
as if the action was pending therein.
2. The motion shall state the
a. Names and addresses of the persons
to be examined,
b. The substance of the testimony which
he expects to elicit from each, and
c. Reason for perpetuating their
testimony.
3. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the depositions to be taken,
and thereupon the depositions may be
taken and used in the same manner and
under the same conditions as are
prescribed in these Rules for depositions
taken in pending actions. [Sec. 7, Rule 24]
ii. Uses; Scope of Examination
General uses of deposition
Intended as a means to compel disclosure of
facts resting in the knowledge of a party or
other person, which are relevant in a suit or
proceeding. [1 Regalado 349, 2010 Ed.]
Scope of examination
Unless otherwise ordered by the court as
provided by Secs. 16 and 18, Rule 23, the
deponent may be examined regarding any
matter:
1. Not privileged, and
2. Relevant to the subject of the pending
action,
a. Whether relating to the claim or
defense of any other party;
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. Including the existence, description, Any purpose if the

nature, custody, condition, and location court finds that
of any books, documents, or other 1. Witness is
tangible things, and dead, or
c. Including the identity and location of 2. Witness
persons having knowledge of relevant resides more
facts. than 100 km
from the place
General rule: A deposition is not a substitute of trial or
for the actual testimony in open court of a party hearing, or is
or witness. If the witness is available to testify, out of the
he should be presented in court to testify. If Philippines,
available to testify, a party’s or witness’ unless it
deposition is inadmissible in evidence for being appears that
hearsay. [Dasmarinas Garments Inc. v. Reyes, his absence
G.R. No. 108229 (1993)] was procured
by the party
Exception: Depositions may be used as offering the
evidence under the circumstances in Sec. 4, deposition, or
Rule 23. 3. Witness is
unable to
Specific uses of depositions attend or testify
By because of
Deposition whom Purpose Deposition of age, sickness,
used a witness, Any infirmity, or
Contradicting or imprisonment,
whether or party
impeaching the or
Any Any not a party
testimony of 4. Party offering
deposition party the deposition
deponent as a
has been
witness
unable to
Deposition of procure the
a party or of attendance of
anyone who the witness by
at the time of subpoena; or
taking the 5. Upon
deposition application and
was an notice, that
officer, such
director, or An exceptional
managing adverse Any purpose circumstances
agent of a party exist as to
make it
public or
desirable, in
private
the interest of
corporation,
justice and with
partnership, due regard to
or the importance
association of presenting
which is a the testimony
party of witnesses

Page 95 of 525
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

orally in open b. on motion or petition of any party or of the

court, to allow
the deposition
to be used;
[Sec. 4, Rule 23]
Effect of using deposition
General rule: The introduction in evidence of
the deposition or any part thereof for any
purpose makes the deponent the witness of
the party introducing the deposition
Exceptions:
1. The deposition is used to contradict or
impeach the deponent.
2. The deposition of a party or of any one who
at the time of taking the deposition was an
officer, director, or managing agent of a
public or private corporation, partnership,
or association which is a party may be used
by an adverse party for any purpose. [Sec.
4(b), Rule 23]
[Sec. 8, Rule 23]
deponent,
c. upon a showing that the examination is
being conducted in bad faith or in such
manner, as unreasonably to annoy,
embarrass, or oppress the deponent or
party,
[Sec. 16, Rule 23]
Order terminating examination
If the order made terminates the examination,
it shall be resumed only upon the order of the
court in which the action is pending.
Suspension of taking of deposition
Upon demand of the objecting party or
deponent, the taking of the deposition shall be
suspended for the time necessary to make a
notice for an order.
Note: The court may impose upon either party
or witness the requirement to pay reasonable
costs and expenses.
[Sec. 18, Rule 23]

Effect of only using a part of the deposition Effect of errors and irregularities in
If only part of a deposition is offered in evidence depositions
by a party, the adverse party may require him Error and
Effect
to introduce all of it which is relevant to the Irregularities
part introduced, and any party may introduce Waived
any other parts. [Sec. 4(d), Rule 23] Objection as to the Unless written
notice for taking a objection is promptly
iii. When May Objections to
deposition served upon party
Admissibility Be Made
giving notice
Subject to the provisions of Sec. 29, Rule 23, Waived
objection may be made at the trial or hearing Unless made
Objection to taking
to receiving in evidence any deposition or part (1) Before taking of
a deposition
thereof for any reason which would require the deposition begins or
because of
exclusion of the evidence if the witness were (2) As soon thereafter
disqualification of
then present and testifying [Sec. 6, Rule 23] as the disqualification
officer before
becomes known or
iv. When May Taking of Deposition whom it is to be
could be discovered
Be Terminated or its Scope taken
with reasonable
Limited diligence
Not waived by failure
When the court/RTC of the place where the Objection to the
deposition is being taken may order the to make them before
competency of a
termination or the scope of the deposition or during the taking of
witness or
limited the deposition
competency,
a. At any time during the taking of the Unless the ground of
relevancy, or
deposition, the objection is one

Page 96 of 525
U.P. LAW BOC CIVIL PROCEDURE
materiality of which might have
testimony been obviated or
removed if presented
at that time
Occurring at oral Waived
examination and
other particulars
Objection in the
manner of taking
the deposition, in
the form of
Unless reasonable
questions or
objection thereto is
answers, in the
made at the time of
oath or
taking the deposition
affirmation, or in
conduct of parties
and errors of any
kind which might
be obviated or
removed if promptly
prosecuted
Waived
Unless served in
writing upon the party
propounding them
Objections to the
within the time
form of written
allowed for serving
interrogatories
succeeding cross or
under Sec. 25 and
other interrogatories
26
and within 3 days after
service of last
interrogatories
authorized
Waived
Unless a motion to
In the manner in suppress the
which testimony deposition or some
is transcribed or part thereof is made
the deposition is with reasonable
dealt with by the promptness after such
officer under Sec. defect is ascertained,
17, 19, 20, and 26 or with due diligence
might have been,
ascertained
[Sec. 29, Rule 23]
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Orders of the court for the protection of
parties and deponents:
After notice is served for taking a deposition by
oral examination, upon motion by any party or
by the person to be examined, and for good
cause shown, the court may order that:
1. The deposition shall not be taken
2. It may be taken only at some designated
place other than that stated in the notice
3. It may be taken only on written
interrogatories
4. Certain matters shall not be inquired into
5. The scope of the examination shall be held
with no one present except the parties to
the action and their officers or counsel
6. After being sealed the deposition shall be
opened only by order of the court
7. Secret processes developments, or
research need not be disclosed
8. The parties shall simultaneously filed
specified documents or information
enclosed in sealed envelope to be opened
as directed by the court
9. The court may make any other order which
justice requires to protect the party or
witness from annoyance, embarrassment,
or oppression
[Sec. 16, Rule 23]
b. Written Interrogatories to
Adverse Parties
Purpose: To elicit material and relevant facts
from any adverse parties [Sec. 1, Rule 25]
and to assist the parties in clarifying the issues
and in ascertaining the facts involved in a case.
[Philippine Health Insurance Corp vs Our Lady
of Lourdes Hospital, G.R. No. 193158 (2015)]
Note: As compared to a bill of particulars
which is directed to a pleading and designed
to seek for a more definite statement or for
particulars in matters not availed with sufficient
definiteness in a pleading, interrogatories are
not directed against a particular pleading and
what is sought is the disclosure of all material
and relevant facts from a party. [1 Riano 447,
2016 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Written interrogatories to parties differ from

the written interrogatories in a deposition Objections to interrogatories; answers
since such are not served upon the adverse deferred
party directly but rather on the officer Objections to any interrogatories may be
designated in the notice. [1 Riano 447, 2016 presented to the court within 10 calendar
Bantam Ed.] days after service thereof, with notice as in
case of a motion; and answers shall be
Scope and use: Interrogatories may relate to deferred until the objections are resolved,
any matters that can be inquired into under which shall be at as early a time as is
Sec. 2 of Rule 23, and the answers may be practicable. [Sec. 3, Rule 25]
used for the same purposes provided in Sec. 4
of the same Rule [ Sec. 1, Rule 25] Grounds for objections
a. They require the statements of conclusions
Procedure for interrogatories to parties of law or answers to hypothetical questions
1. Upon ex parte motion, or opinion, or mere hearsay, or matters not
2. Any party desiring to elicit material and within the personal knowledge of the
relevant facts from any adverse parties, interrogated party.
3. Shall file and serve written interrogatories b. Frivolous interrogatories need be
on the party answered
4. Such are to be answered by: [2 Herrera 50, 2007 Ed.]
a. the party served or,
b. if the party served is a public or private i. Consequences of Refusal to
corporation or a partnership or Answer
association, by any officer thereof
competent to testify in its behalf. [Sec. If a party or an officer or managing agent of a
1, Rule 25] party fails to serve answers to
Note: The interrogatories shall be answered interrogatories submitted under Rule 25 after
fully in writing and shall be signed and proper service of such interrogatories, the court
sworn to by the person making them [Sec. 2, on motion and notice, may:
Rule 25] 1. Strike out all or any part of any pleading of
the party,
Number of interrogatories 2. Dismiss the action or proceeding or any
No party may, without leave of court, serve part thereof, or
more than one set of interrogatories to be 3. Enter a judgment by default against the
answered by the same party [Sec. 4, Rule 25] party, and
4. In its discretion, order him to pay
Answers as judicial admissions reasonable expenses incurred by the
Written interrogatories and the answers thereto other, including attorney’s fees.
must both be filed and served. [Sec. 2, Rule 25]
Note: Such consequences also apply for willful
The answers constitute judicial admissions. failure to appear before the officer who is to
[Sec. 4, Rule 129] take his deposition.
[Sec. 5, Rule 29]
Service and filing
The party upon whom the interrogatories have ii. Effect of Failure to Serve Written
been served shall file and serve a copy of the Interrogatories
answers on the party submitting the
interrogatories within 15 calendar days after General Rule: A party not served with written
service thereof, unless the court, on motion interrogatories may not be compelled by
and for good cause shown, extends or adverse party to:
shortens the time. [Sec. 2, Rule 25] 1. Give testimony in open court; or

Page 98 of 525
U.P. LAW BOC CIVIL PROCEDURE
2. Give a deposition pending appeal.
Exception: Allowed by the court for good
cause shown and to prevent a failure of justice.
[Sec. 6, Rule 25]
c. Request for Admission
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegations in a
pleading [1 Regalado 370, 2010 Ed.]
Purpose
In order to allow one party to request the
adverse party, in writing, to admit certain
material and relevant matters which, most
likely, will not be disputed during the trial. [1
Riano 448-449, 2016 Bantam Ed.]
In order to avoid unnecessary inconvenience
before trial, a party may request the other to:
a. Admit the genuineness of any material and
relevant document described in and
exhibited with the request, or
b. Admit the truth of any material and relevant
matter of fact set forth in the request. [Sec.
1, Rule 26]
How made
A party may file and serve upon any other
party a written request for the purpose
mentioned above. [Sec. 1, Rule 26]
Note: The request for admission must be
served on the party, not the counsel. This is
an exception to the general rule that notices
shall be served upon counsel and not upon the
party. [Duque v. CA, G.R. 125383 (2002)]
When made
At any time after issues have been joined. [Sec.
1, Rule 26]
Note: Issues are joined when all the parties
have pleaded their respective theories and the
terms of the dispute are plain before the court.
[Rosete v. Sps. Lim, G.R. No. 136051 (2006)]
Page 99 of 525
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i. Implied Admission by Adverse
Party
Each of the matters which an admission is
requested shall be deemed admitted unless
the party to whom request is directed files and
serves upon the party requesting admission a
sworn statement. [Sec. 2, Rule 26]
Contents
1. Denying specifically the matters of which
an admission is requested, or
2. Setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters
[Sec. 2, Rule 26]
Period: Such party must file and serve such
statement:
1. Within a period not less than 15 calendar
days after service thereof, or
2. Within such further time as the court may
allow on motion
[Sec. 2, Rule 26]
Objections
Objections to any request for admission shall
be submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement.
• His compliance with the request for
admission shall be deferred until such
obligations are resolved, which resolution
shall be made as early as practicable. [Sec.
2, Rule 26]
ii. Consequences of Failure to
Answer Request for Admission
The proponent may apply to the proper court
for an order to compel an answer. [Sec. 1,
Rule 29]
If application is granted, the court
1. Shall require the refusing party to answer;
and
2. May require the refusing party or counsel
to pay reasonable expenses for obtaining
the order, if the court finds that the refusal
to answer was without substantial
justification.
U.P. LAW BOC CIVIL PROCEDURE
Effect of refusal to answer
Refusal to answer after being directed by the
court would:
a. Constitute contempt of that court. [Sec. 2,
Rule 29]
b. Allow the court to make such orders
regarding the refusal as are just, like:
1. An order that the matters regarding
which questions were asked shall be
taken as established for the purposes
of the action in accordance with the
claim of the party obtaining the order
2. An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses
3. An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing
the action or proceeding or any part
thereof or rendering a judgment by
default against the disobedient party,
and
4. In lieu of any of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of party
for disobeying any of such orders.
[Sec. 3, Rule 29]
iii. Effect of Admission
Any admission made by a party pursuant to
such request is for the purpose of the
pending action only and shall not constitute
an admission by him for any other purpose nor
may the same be used against him in any other
proceeding [Sec. 3, Rule 26]
Withdrawal of admission
The court may allow the party making the
admission under this Rule, to withdraw and
amend it upon such terms as may be just. [Sec.
4, Rule 26]
iv. Effect of Failure to File and Serve
Request for Admission
General Rule: A party who fails to file and
serve a request for admission on the adverse
party of material and relevant facts at issue
which are, or ought to be, within the personal
Page 100 of 525
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knowledge of the latter, shall not be permitted
to present evidence on such facts.
Exception: Allowed by the court for good
cause shown and to prevent a failure of justice.
[Sec. 5, Rule 29]
d. Production or Inspection of
Documents or Things
Purpose
This mode of discovery is not only for the
benefit of a party, but also for the court and for
it to discover all the relevant and material facts
in connection with the case. [1 Riano 451, 2016
Edition]
Procedure for production/inspection of
documents or things
a. Upon motion of any party,
b. Showing good cause therefor,
c. The court in which an action is pending
may order any party to:
i. Produce and permit the inspection and
copying or photographing, by or on
behalf of the moving party, of any
designated documents, papers,
books, accounts, letters,
photographs, objects or tangible
things not privileged, which
constitute or contain evidence material
to any matter involved in the action and
which are in his possession custody or
control; or
ii. Permit entry upon designated land or
other property in his possession or
control for the purpose of inspecting,
measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon
Note: The order shall specify the time, place
and manner of making the inspection and
taking copies and photographs, and may
prescribe such terms and conditions as are
just.
[Sec. 1, Rule 27]
Production/inspection of documents vs
Subpoena duces tecum
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Production or Procedure
Subpoena duces A motion for the examination is filed in the
inspection of
tecum court where the action is pending:
documents
May be directed to a. Showing good cause for the examination,
Limited to the parties b. With notice to the party to be examined,
non- party [Sec. 1,
of the action [Sec. 1, and to all other parties, and
Rule 21 refers to “a
Rule 27] c. Specifying the time, place, manner,
person”]
conditions, scope, and person conducting
Issued upon motion the examination.
May be issued upon
of any party [Sec. 1, [Sec. 2, Rule 28]
ex parte application
Rule 27]
Must show good Need not show good Report of findings
cause [Sec. 1, Rule cause [see Secs. 3 A copy of the detailed examination report shall
27] and 4, Rule 21] be given by the party causing the examination
Grounds for quashal upon request by the party examined.
(1) Unreasonable,
oppressive, Note: The party causing the examination shall
then be entitled, upon request, to receive from
May be quashed for irrelevant
the party examined, a report of any
lack of good cause
examination previously or subsequently made.
shown (2) Failure to [Sec. 3, Rule 28]
advance reasonable
costs of production Refusal to deliver the report
[Sec. 4, Rule 21] If the party examined refuses to deliver such
Disobedience would report, the court on motion and notice may
allow court to make make an order requiring delivery on such
such orders in terms as are just
regard to the refusal If a physician fails or refuses to make such a
as are just, and report the court may exclude his testimony if
among others, an offered at the trial.
[Sec. 3, Rule 28]
order refusing to
Disobedience
allow the disobedient
constitutes contempt Waiver of privilege
party to support or The party examined waives any privilege
of court [Sec. 9, Rule
oppose designated regarding the testimony of every other person
21]
claims or defenses who has examined or may thereafter examine
or prohibiting him him in respect of the same mental/physical
from introducing in examination by:
evidence designated a. Requesting and obtaining a report of the
documents or things examination ordered, or
or items of testimony b. Taking the deposition of the examiner.
[Sec. 3(b), Rule 29] [Sec. 4, Rule 28]

Note: Since the results of the examination are

e. Physical and Mental
intended to be made public, the same are not
Examination of Persons covered by physician-patient privilege under
Sec. 24(b), Rule 130 [1 Regalado 376, 2010
When examination may be ordered Ed.]
Such may be ordered in an action in which the
mental or physical condition of a party is in
controversy. [Sec. 1, Rule 28]

Page 101 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

f. Consequences of Refusal to incurred in opposing the

Comply with Modes of application, including
Discovery attorney’s fees.
[Sec. 1, Rule 29]
Consequences of Refusal to Comply with
Modes of Discovery The refusal may be
Form of considered a contempt of
Sanctions
refusal that court. [Sec. 2, Rule
Upon refusal to answer, 29]
the proponent may apply The refusal may be
to the court for an order Refusal to be considered a contempt of
to compel an answer. sworn that court. [Sec. 2, Rule
29]
If the application is The court may make such
granted, the court shall orders in regard to the
a. require the refusing refusal as are just, and
party or deponent to among others the
answer the question following
or interrogatory, and a. An order that the
b. if it also finds that the matters regarding
refusal to answer was which the questions
without substantial were asked, or the
justification, it may character or
require the refusing description of the
party or deponent or Refusal to thing or land, or the
contents of the paper,
the counsel advising answer
or the physical or
Refusal to the refusal, or both of designated
mental condition of
answer any them, to pay the questions or the party or any other
question proponent the amount refusal to designated facts shall
of the reasonable produce be taken to be
expenses incurred in documents or established for the
obtaining the order, to submit to purposes of the
including attorney’s physical or action in accordance
fees. mental with the claim of the
examination party obtaining the
If the application is order;
denied and the court b. An order refusing to
finds that it was filed allow the disobedient
party to support or
without substantial
oppose designated
justification, the court may claims or defenses or
require the proponent or prohibiting him from
the counsel advising the introducing in
filing of the application, or evidence designated
both of them, to pay to the documents or things
refusing party or or items of testimony,
deponent the amount of or from introducing
the reasonable expenses

Page 102 of 525

U.P. LAW BOC CIVIL PROCEDURE
evidence of physical
or mental condition;
c. An order striking out
pleadings or parts
thereof, or staying
further proceedings
until the order is
obeyed, or dismissing
the action or
proceeding or any
part thereof or
rendering a judgment
by default against the
disobedient party;
and
d. In lieu of any of the
foregoing orders or in
addition thereto, an
order directing the
arrest of any party or
agent of party for
disobeying any of
such orders except
an order to submit to
a physical or mental
examination.
[Sec. 3, Rule 29]
The court, upon proper
application, may issue an
order requiring the other
party to pay him
reasonable expenses
incurred, including
attorney’s fees
PROVIDED that party
Refusal to requesting proves
admit under genuineness of such
Rule 26 document or truth
UNLESS the court finds:
a. There were good
reasons for
denial, or
b. Admissions
sought were of no
importance.
[Sec. 4, Rule 29]
Failure of
The court on motion and
party to attend
notice may”
or serve
Page 103 of 525
REMEDIAL LAW
answers to a. Strike out all or any
written part of any pleading of
interrogatories disobedient party,
[Sec. 5] b. Dismiss the action or
proceeding or any
part thereof, or
c. Enter a judgment by
default against
disobedient party,
and
d. d. In its discretion,
order payment of
reasonable expenses
incurred by the other
including attorney’s
fees.
Note: Expenses and attorney’s fees are not to
be imposed upon the Republic of the
Philippines under Rule 29. [Sec. 6, Rule 29]
15. TRIAL
Definition
Trial is the judicial examination and
determination of the issues between the parties
to the action. [Black’s Law Dictionary 1348, 5th
Ed.]
The judicial process of investigating and
determining the legal controversies, starting
with the production of evidence by the plaintiff
and ending with his closing argument. [Acosta
v. People, G.R. No. L-17427 (1962)]
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo, G.R. No. L-35701 (1973)]
When trial unnecessary
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
1. Where the pleadings tender no issue at all,
judgment on the pleadings may be
directed by the court [Rule 34]
U.P. LAW BOC CIVIL PROCEDURE
2. Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment [Rule 35]
3. Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial is
in progress [Rule 18; Art. 2028, Civil Code]
4. Where the complaint has been dismissed
with prejudice, or when the dismissal has
the effect of an adjudication on the merits
[Sec. 13, Rule 15; Sec. 3, Rule 17; Sec. 5,
last par., Rule 7]
5. Where the case falls under the Rules on
Summary Procedure, and
6. Where the parties agree, in writing, upon
the facts involved in the litigation and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence [Sec. 7, Rule 30]
[1 Riano 563, 2014 Bantam Ed.]
Schedule of Trial
The parties shall strictly observe the scheduled
hearings as agreed upon and set forth in the
pre-trial order. [Sec. 1, Rule 30]
Trial dates
The schedule of trial dates shall be continuous
and within the following periods:
a. Initial presentation of plaintiff’s evidence
• Shall be set not later than 30 calendar
days after termination of pre-trial
conference
• Plaintiff shall be allowed to present
evidence within a period of 3 months or
90 calendar days which shall include
the date of JDR.
b. Initial presentation of defendant’s
evidence
• Shall be set not later than 30 calendar
days after the court’s ruling on
plaintiff’s formal offer of evidence.
• Defendant shall be allowed to present
evidence within a period of 3 months or
90 calendar days.
c. The period for presentation of evidence on
the third (fourth-etc.)- party claim,
counterclaim, or cross-claim shall be
determined by the court.
Page 104 of 525
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•The total of which shall in no case
exceed 90 calendar days.
d. If deemed necessary, the court shall set
the presentation of the parties’ rebuttal
evidence
• Shall be completed within 30 calendar
days.
[Sec. 1, Rule 30]
Periods for presentation of evidence
General Rule: The presentation of evidence of
all parties shall be terminated within 10
months or 300 calendar days.
Exception: If there are no third (fourth-etc.)-
party claim, counterclaim, or cross-claim, the
presentation of evidence shall be terminated
within 6 months or 180 calendar days.
Note: Trial dates may be shortened depending
on the number of witnesses to be presented.
[Sec. 1, Rule 30]
Period of decision
The court shall decide and serve copies of its
decision to the parties within a period not
exceeding 90 calendar days from submission
of the case for resolution, with or without
memoranda. [Sec. 1, Rule 30]
Hearing days
Trial shall be held from Monday to Thursday.
• Courts shall call the cases at exactly
8:30am and 2:00pm pursuant to A.C.
No. 3-99.
• Hearing on the motions shall be held on
Fridays pursuant to Sec. 8, Rule 15.
[Sec. 4, Rule 30]
Court calendars
All courts shall ensure the posting of their court
calendars outside their courtrooms at least 1
day before the scheduled hearings. [Sec. 4,
Rule 30]
a. Adjournments and
Postponements
A court may adjourn a trial from day to day,
and to any stated time, as the expeditious and
U.P. LAW BOC CIVIL PROCEDURE
convenient transaction of business may
require. [Sec. 2, Rule 30]
Note: The party who caused the postponement
is warned that presentation of its evidence
must be terminated on the remaining dates
previously agreed upon.
Limitations on the authority to adjourn
General rule: The court has no power to
adjourn a trial for a period longer than 1 month
for each adjournment; nor more than 3
months in all.
Exception: When authorized in writing by the
Court Administrator, Supreme Court.
[Sec. 2, Rule 30]
Postponement
A motion for postponement should not be filed
in the last hour especially when there is no
reason why it could not have been presented
earlier. [Cañete v. Judge, CFI Zamboanga del
Sur, G.R. No. L-21743 (1968)]
Postponements lie in the court’s discretion.
[Hap Hong Hardware Co., Inc. v. Philippine
Milling Company, G.R. No. L-16778 (1961)]
b. Requisites of Motion to
Postpone Trial
i. For Absence of Evidence
Under the Old Rules, specifically Sec. 3 of Rule
30, postponement of trial for absence of
evidence was allowed provided that the motion
for such was accompanied by an affidavit
showing the materiality/ relevance of the
evidence and that due diligence has been used
to procure it. Under the revised rules, however,
such section has been deleted, meaning that
absence of evidence can no longer be used
as a basis for postponement of trial.
Under Sec. 12(f), Rule 15, postponement may
only be allowed due to acts of god, force
majeure, or physical inability of the witness to
appear and testify. The amended Sec. 3 of
Rule 30 also provides for an additional ground
which is illness of a party or counsel.
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ii. For Illness of Party or Counsel
Motion to postpone trial based on illness of a
party or counsel may be granted if
accompanied by affidavit or sworn
certification showing:
1. The presence of such party or counsel at
the trial is indispensable; and
2. That the character of his or her illness is
such as to render his non-attendance
excusable
[Sec. 3, Rule 30]
Note: Such ground for postponement of trial
was initially under Section 4 of the same rule.
c. Agreed Statement of Facts
When all facts are agreed upon
The parties may agree, in writing, upon the
facts involved in the litigation, and submit the
case for judgment on the facts agreed upon,
without the introduction of evidence.
When only some facts are agreed upon
If the parties agree only on some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
[Sec. 7, Rule 30]
An agreed statement of facts is conclusive
on the parties, as well as on the court. Neither
of the parties may withdraw from the
agreement, nor may the court ignore the same.
[McGuire v. Manufactures Life, G.R. L-3581
(1950)]
d. Order of Trial; Reversal of Order
Order of trial
General Rule: Trial shall be limited to the
issues stated in the pre-trial order and proceed
as follows:
a. Presentation of plaintiff’s evidence in chief
b. Presentation of defendant’s evidence in
chief and evidence in support of his
counterclaim, cross-claim and 3rd-party
complaint
U.P. LAW BOC CIVIL PROCEDURE
c. 3rd-party defendant shall adduce evidence
of his defense, counterclaim, cross-claim,
and 4th party complaint
d. 4th-party defendant shall adduce evidence,
and so forth
e. Parties against whom any counterclaim or
cross-claim has been pleaded shall adduce
evidence in support of their defense, in the
order to be prescribed by court
f. Parties may then respectively adduce
rebutting evidence only, unless the court
permits them to adduce evidence upon
their original case
g. Upon admission of the evidence, the case
shall be submitted for decision, unless the
court directs parties to argue or to submit
respective memoranda or any further
pleading
Note: Such is subject to the provisions of Sec.
2, Rule 31 on separate trials.
Exception: When the court for special reasons
otherwise directs.
[Sec. 5, Rule 30]
Reverse order
Where the answer of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses. [Yu v. Mapayo,
G.R. No. L- 29742 (1972)]
The reasoning behind this is that the plaintiff
need not present evidence since judicial
admissions do not require proof [Sec. 2, Rule
129]
Offer of exhibits
After the presentation of evidence, the offer of
exhibits shall be made orally. The objections
shall then be made, and the court shall orally
rule on the same. [Sec 6, Rule 30]
Note: This is consistent with the rule on
continuous trial for criminal cases, as well as
the amendments to the Rules of Court.
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e. Consolidation or Severance of
Hearing or Trial
Consolidation is a procedural device, granted
to the court as an aid in deciding how cases in
its docket are to be tried, so that the business
of the court may be dispatched expeditiously
while providing justice to the parties. [Republic
v. Heirs of Oribello, G.R. No. 199501 (2013)]
When proper: When actions involving a
common question of fact or law are pending
before the court. [Sec. 1, Rule 31]
Court action
The court may
a. Order a joint hearing or trial of any or all
matters in issue in the actions
b. Order all actions consolidated; and
c. Make such orders concerning proceedings
therein as may tend to avoid unnecessary
costs or delay.
[Sec. 1, Rule 31]
Purpose: To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unnecessary costs and
expenses. [1 Regalado 392, 2010 Ed.]
Where a case has been partially tried before
one judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan, G.R. No. 102370-71 (1992)]
The Rules do not distinguish between
cases filed before the same branch or judge
and those that are pending in different
branches or before different judges of the
same court, in order that consolidation may be
proper, as long as the cases involve the
resolution of questions of law or facts in
common with each other. [Active Woods
Products Co. Inc. v. CA, G.R. No. 86602
(1990)]
U.P. LAW BOC CIVIL PROCEDURE
Kinds of consolidation
a. Quasi-consolidation – where all, except
one, of several actions are stayed until one
is tried, in which case, the judgment in the
one trial is conclusive as to others; not
actually consolidation but referred to as
such
b. Actual consolidation – where several
actions are combined into one, lose their
separate identity, and become one single
action in which judgment is rendered
c. Consolidation for Trial – where several
actions are ordered to be tried together, but
each retains its separate character, and
requires the entry of separate judgment
[Republic v. Sandiganbayan, G.R. No. 152375
(2011)]
Severance
The court may order a separate trial of any
claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue. [Sec. 2,
Rule 31]
When proper: In furtherance of convenience
or to avoid prejudice. [Sec. 2, Rule 31]
When a separate trial of claims is conducted by
the court under this section, it may render
separate judgments on each claim. [see Sec.
5, Rule 36]
This provision permitting separate trials
presupposes that the claims involved are
within the jurisdiction of the court. When
one of the claims is not within its jurisdiction,
the same should be dismissed, so that it may
be filed in the proper court. [1 Regalado 394,
2010 Ed.]
f. Delegation of Reception of
Evidence
General Rule: The judge of the court where
the case is pending shall personally receive
the evidence to be adduced by the parties [Sec.
9, Rule 30]
Exception: The court may delegate the
reception of evidence to its COC in:
a. Default hearings
Page 107 of 525
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b. Ex parte hearings, or
c. Cases where parties agree in writing.
Note: In order to be able to receive evidence,
the clerk of court must be a member of the
bar. [Sec. 9, Rule 30]
Objections
The COC has no power to rule on objections
to any question or to the admission of exhibits.
Objections shall be resolved by the court
upon submission of the clerk’s report and the
TSN within 10 calendar days from termination
of the hearing. [Sec. 9, Rule 30]
g. Trial by Commissioners
Commissioner - A person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered [Secs.1, 3, 9,
11, Rule 32]
Note: as used in the Rules, “commissioner”
includes a referee, an auditor, and an
examiner. [Sec. 1, Rule 32]
General Rule: Trial by commissioner depends
largely upon the discretion of the court. [Secs.
1-2, Rule 32]
Exceptions: In the following instances,
appointment of a commissioner is necessary:
a. Expropriation [Rule 67]
b. Partition [Rule 69]
Kinds of trial by commissioners
a. Reference by consent of both parties
b. Reference ordered on motion
[Secs. 1-2, Rule 32]
i. Reference by Consent or Ordered
on Motion
Reference by consent
The court may order any or all of the issues in
a case to be referred to a commissioner by
written consent of both parties. [Sec. 1, Rule
32]
U.P. LAW BOC CIVIL PROCEDURE
Commissioners are to be:
1. Agreed upon by the parties; or
2. Appointed by the court. [Sec. 1, Rule 32]
Reference ordered on motion
When the parties do not consent, the court
may, upon the application of either or of its own
motion direct a reference to a commissioner in
the following cases:
1. When the trial of an issue of fact requires
the examination of a long account on
either side, in which case the
commissioner may be directed to hear and
report upon the whole issue or any specific
question involved therein,
2. When the taking of an account is
necessary for the information of the court
before judgment, or for carrying a judgment
or order into effect,
3. When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
[Sec. 2, Rule 32]
Order of reference
When a reference is made, the clerk shall
furnish the commissioner with a copy of the
order of reference, which may contain the
following:
1. Specifications or limitations of the powers
of the commissioner;
2. A direction to report only upon particular
issues, to do or perform particular acts, or
to receive and report evidence only; and
3. The date for beginning and closing the
hearings, and that for the filing of his report.
[Sec. 3, Rule 32]
ii. Powers of The Commissioner
Oath of commissioner
Before entering upon his duties, the
commissioner shall be sworn to a faithful and
honest performance thereof. [Sec. 4, Rule 32]
Powers of the commissioner
Subject to the limitations and specifications in
the order, the commissioner has and shall
exercise the power to:
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REMEDIAL LAW
a. Regulate the proceedings in every hearing
before him;
b. Do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order;
c. Issue subpoenas and subpoenas duces
tecum;
d. Swear witnesses; and
e. Unless otherwise provided in the order of
reference, he may rule upon the
admissibility of evidence.
[Sec. 3, Rule 32]
Note: Refusal of a witness to obey such
subpoena or to give evidence before him is
deemed contempt of the court which appointed
the commissioner. [Sec. 7, Rule 32]
Proceedings before the commissioner
a. Upon receipt of the order of reference, the
commissioner shall set a time and place for
the first meeting of parties or their counsel;
b. Notices shall be sent to parties or counsel;
and
c. Hearing is to be held within 10 calendar
days after the date of order of reference.
[Sec. 5, Rule 32]
Note: The commissioner has the duty to
proceed with reasonable diligence. The parties
may apply to the court for an order requiring the
commissioner to expedite proceedings and
submit his report. [Sec. 8, Rule 32]
Effect of party’s failure to appear
The commissioner may, in his discretion,
a. Proceed ex parte; or
b. Adjourn the proceedings to a future date
giving notice to the absent party or his
counsel.
[Sec. 6, Rule 32]
a. Commissioner’s Report; Notice to Parties
and Hearing on The Report
Report of the commissioner
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall
file with the court his report in writing upon
the matters submitted to him by the order of
reference.
U.P. LAW BOC CIVIL PROCEDURE
Note: The commissioner shall attach all
exhibits, affidavits, depositions, papers and the
transcripts, if any, of the testimonial evidence
presented before him.
[Sec. 9, Rule 32]
Notice and objections
Upon the filing of the report, the parties shall be
1. Notified by the clerk; and
2. Allowed 10 calendar days within which to
object to the findings of the report, if they
so desire
[Sec. 10, Rule 32]
Note: The objections based upon grounds
which were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and conclusions,
shall not be considered by the court unless
they were made before the commissioner.
[Sec. 10, Rule 32]
Hearing upon the report
Upon the expiration of the 10-day period to file
objections, the report shall be set for
hearing. After such hearing, the court shall
issue an order:
1. Adopting, modifying, or rejecting the report,
in whole or in part, or
2. Recommitting it with instructions, or
3. Requiring the parties to present further
evidence before the commissioner or the
court.
[Sec. 11, Rule 32]
16. DEMURRER TO EVIDENCE
Demurrer to evidence
After the plaintiff has completed the
presentation of his evidence, the defendant
may move for dismissal on the ground that
upon the facts and the law the plaintiff has
shown no right to relief. [Sec. 1, Rule 33]
a. Ground
Insufficiency of evidence, that upon the facts
and the law the plaintiff has shown no right
to relief. [Sec. 1, Rule 33]
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b. Effect of Denial
If the demurrer is denied, the defendant shall
have the right to present his evidence. [Sec.
1, Rule 33]
The order denying the demurrer to evidence
shall not be the subject of an appeal or petition
for certiorari, prohibition or mandamus before
judgment. [Sec. 2, Rule 33]
Note: The remedy then is to proceed to trial,
and if the defendant loses, to appeal the
judgment and include in the assigned errors,
the denial of the demurrer to evidence.
c. Effect of Grant
If the demurrer is granted, the case shall be
dismissed. [Sec. 1, Rule 33]
Note: The grant of a demurrer is considered an
adjudication on the merits and the proper
remedy would be to appeal the judgment.
The appellate court should not remand the
case for further proceedings but should render
judgment on the basis of the evidence
submitted by the plaintiff. [Consolidated Bank
and Trust Corp. v. Del Monte Motor Works,
Inc., G.R. No. 143338 (2005)]
d. Waiver of Right to Present
Evidence
If the order granting the demurrer is
reversed on appeal, the defendant is deemed
to have waived his right to present evidence.
[Sec. 1, Rule 33; Republic v. Tuvera, G.R. No.
148246 (2007)]
e. Action on Demurrer to
Evidence
A demurrer to evidence shall be subject to the
provisions of Rule 15. [Sec. 2, Rule 33]
Being subject to the provisions of Rule 15, it
follows that a demurrer to evidence is
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

considered an allowable litigious motion. Rule No appeal is

15 requires that there must be proof of service If the demurrer is
allowed when a
to the other party who shall have 5 calendar granted, the plaintiff
demurrer is granted
days to file an opposition. The court shall may appeal and if the
because the
then resolve the motion within 15 calendar dismissal is reversed,
dismissal is
days from the receipt of such opposition. the defendant is
deemed an
deemed to have
acquittal. [People v.
f. Distinguish: Demurrer to waived his right to
Tan, G.R. No.
Evidence in a Civil Case and present his evidence.
167526 (2010)]
Demurrer to Evidence in a It is the defendant
Criminal Case who invokes The court may, on
demurrer by moving its own initiative,
Demurrer in Demurrer in
for the dismissal of may dismiss the
CIVIL CASE CRIMINAL CASE
the case. action after giving
Anchored upon the the prosecution an
failure of the Predicated upon The court does not do opportunity to be
plaintiff to show that prosecution’s so on its own heard.
he is entitled to insufficiency of initiative.
relief, upon the facts evidence. [Sec. 23, [Riano 498, Criminal Procedure, 2016 Ed.]
and the law. [Sec. 1, Rule 119]
Rule 33]
17. JUDGMENTS AND FINAL
May be filed with or
without leave of ORDERS
court [Sec. 23, Rule
119] Judgments in general
The final ruling by a court of competent
If the defense filed
jurisdiction regarding the rights and obligations
the demurrer with
of the parties, or other matters submitted to it
leave of court, the in an action or proceeding. [Macahilig v. Heirs
defense may of Magalit, G.R. No. 141423 (2000)]
present evidence
upon denial of Requisites of a valid judgment
demurrer. 1. Court or tribunal must be clothed with
authority to hear and determine the matter
If the demurrer is When without before it. [Acosta v. COMELEC, G.R. No.
denied, the defendant leave of court and 131488 (1998)]
does not lose his right the demurrer is 2. Court must have jurisdiction over the
to present his denied, the defense parties and the subject matter
evidence. is deemed to have 3. Parties must have been given an
opportunity to adduce evidence on their
waived the right to
behalf. [Acosta v. COMELEC, G.R. No.
present evidence
131488 (1998)]
and thus submits 4. Evidence must have been considered by
the case for the tribunal in deciding the case. [Acosta v.
judgment on the COMELEC, G.R. No. 131488 (1998)]
basis of evidence 5. Judgment must be in writing, personally
offered by the and directly prepared by the judge. [Corpus
prosecution. v. Sandiganbayan, G.R. No. 162214
(2004)]

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U.P. LAW BOC CIVIL PROCEDURE
6. Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the clerk
of court. [Sec. 1, Rule 36; Sec. 14, Art VIII,
1987 Constitution]
KINDS OF JUDGMENT
1. Judgment by compromise – Rendered
on the basis of a compromise agreement
entered into between the parties to the
action. [1 Riano 606, 2014 Bantam Ed.,
Diamond Builders Conglomeration v.
Country Bankers Corp., G.R. No. 171820
(2007)]. Once approved by the court, a
judicial compromise is not appealable and
it thereby becomes immediately executory
[1 Riano 607, 2014 Bantam Ed.]
2. Judgment by confession (cognovit
actionem) – Rendered by the court when
a party expressly agrees to the other
party’s claim or acknowledges the validity
of the claim against him. [1 Riano 609,
2014 Bantam Ed., see also PNB v. Manila
Oil, G.R. No. 18103 (1922)]
3. Judgment upon the merits – Rendered
after consideration of the evidence
submitted by the parties during the trial of
the case. A judgment is “on the merits”
when it amounts to a legal declaration of
the respective rights and duties of the
parties, based upon the disclosed facts.
4. Clarificatory judgment – Rendered where
the previous judgment is ambiguous and
difficult to comply with. [1 Regalado 417,
2010 Ed., citing Almendras v. Del Rosario,
G.R. No. L-20158 (1968)]
5. Judgment nunc pro tunc – Literally, “now
for then”. It is a judgment intended to enter
into the record the acts which had already
been done, but which do not appear in the
records [Lichauco v. Tan Pho, G.R. No.
19512 (1923)]. It can only be issued when
the thing ordered has previously been
made, but by inadvertence has not been
entered. [Vasquez v. CA, G.R. No. 144882
(2005)]
6. Judgment sin perjuicio – Traditionally
understood to be a brief judgment
containing only the dispositive portion.
[Director of Lands v. Sanz, G.R. No. 21183
(1923)]
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7. Conditional Judgment – One whose
effectivity depends upon the occurrence or
non-occurrence of an event; generally void
because of the absence of a disposition.
[Cu- Unjieng v. Mabalacat Sugar Co., G.R.
No. 45351 (1940)]
8. Several Judgments – Rendered by a
court against one or more defendants and
not against all of them, leaving the action to
proceed against the others [Sec. 4, Rule
36]. A several judgment is proper where
the liability of each party is clearly
separable and distinct from that of his co-
parties such that the claims against each of
them could have been the subject of
separate suits, and judgment for or against
one of them will not necessarily affect the
others. In actions against solidary debtors,
a several judgment is not proper [1
Regalado 424, 2010 Ed.].
9. Separate Judgment – Rendered to
dispose of a claim among several others
presented in a case, after a determination
of the issues material to a particular claim
and all counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Sec. 5, Rule
36]
10. Memorandum Decision – Rendered by
an appellate court, and incorporates by
reference the findings of fact or the
conclusions of law contained in the
decision, order or ruling under review. [1
Riano 581, 2014 Bantam Ed.]
11. Declaratory Judgment – Rendered in a
special civil action for declaratory relief.
[Rule 63]
12. Foreign Judgment – Rendered by a
tribunal of a foreign country. [Sec 48, Rule
39]
a. Judgment After Pre-trial
When the court includes in the pre-trial order
that the case be submitted for summary
judgment or judgment on the pleadings,
judgment shall be rendered within 90 calendar
days from termination of pre-trial. [Sec. 10,
Rule 18]
U.P. LAW BOC CIVIL PROCEDURE
Note: The court may order such motu proprio
or upon motion of any party and upon a
showing that:
a. There be no more controverted facts,
b. No more genuine issue as to any material
fact,
c. There be an absence of any issue, or
d. Should the answer fail to tender an issue.
[Sec. 10, Rule 18]
b. Judgment Without Trial
When trial is unnecessary:
1. Judgment on the Pleadings [Rule 34]
2. Summary Judgment [Rule 35]
3. Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule
18; Art. 2028, Civil Code]
4. Dismissal with prejudice [Sec. 13, Rule 15;
Secs. 3 and 5, Rule 17]
5. Under the Rules on Summary Procedure
6. When there is an agreed statement of facts
[Sec. 7, Rule 30]
c. Judgment on The Pleadings
When a judgment on the pleadings may be
availed of
The court may, motu proprio or on motion of
that party, direct judgment on such pleading
when the answer:
a. Fails to tender an issue, or
b. Admits the material allegations of the
adverse party’s pleading. [Sec. 1 and 2,
Rule 34]
Note: The concept will not apply when no
answer is filed. It will come into operation when
an answer is served and filed but the same fails
to tender an issue, or admits the material
allegations of the adverse party’s pleading. [1
Riano 609, 2014 Bantam Ed.] When no answer
is filed, the remedy is to move that the
defendant be declared in default. [Sec. 3, Rule
9]
When availed of by motion of a party
The motion shall be subject to the provisions of
Rule 15. [Sec. 2, Rule 34]
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From the reference to Rule 15, it follows that a
motion for a judgment on the pleadings is
considered an allowable litigious motion. As
such, there must be proof of service to the
other party who shall have 5 calendar days to
file an opposition. From receipt of such, the
court shall have 15 calendar days to resolve
the motion.
Note: Any action of the court on a motion for
judgment on the pleadings shall not be subject
of an appeal or petition for certiorari, prohibition
or mandamus. [Sec. 2, Rule 34]
Judgment on the pleadings is not proper in the
ff. cases:
a. Declaration of Nullity of Marriage;
b. Annulment of marriage; and
c. Legal Separation.
Note: In such cases, the material facts alleged
in the complaint shall always be proved.
[Sec. 1, Rule 34]
d. Summary Judgments
Definition
A judgment which a court may render before
trial, but after both parties have pleaded
upon application by one party supported by
affidavits, depositions, or other documents,
with notice upon the adverse party who may file
an opposition supported also by affidavits,
depositions or other documents, should the
court find after summarily hearing both parties
with their respective proofs that there exists
no genuine issue between them. [2 Herrera
118, 2007 Ed., citing Evangelista v. Mercator
Financing Corporation, G.R. No. 148864
(2003)]
Summary Judgment is proper when it
appears to the court that
a. There exists no genuine issue as to any
material fact, except as to the amount of
damages, and
b. The moving party is entitled to judgment
as a matter of law.
Genuine issue - an issue of fact which calls for
the presentation of evidence as distinguished
U.P. LAW BOC CIVIL PROCEDURE
from a sham, fictitious, contrived, or false claim
[Philippine Bank of Communications v. Go,
G.R. No. 175514 (2011)]
Test: Whether or not the pleadings, affidavits
and exhibits in support of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of law,
that there is no defense to the action, or the
claim is clearly meritorious. [Estrada v.
Consolacion, G.R. No. L- 40948 (1976)]
i. For the Claimant; For the
Defendant
When filed
1. If sought by the claimant – only after the
answer is served; [Sec. 1, Rule 35]
2. If sought by the defendant – at any time
[Sec. 2, Rule 35]
Procedure
1. Movant files a motion for summary
judgment, citing the supporting affidavits,
depositions, or admissions, and the
specific law relied upon.
2. The adverse party may file a comment and
serve opposing affidavits, depositions,
admissions within 5 calendar days from
receipt of the motion.
3. A hearing will be conducted only if ordered
by the court
- Note: There is no longer a mandatory
hearing for the motion due to the
amendment of the rules. This is also
consistent with the amendments to
Rule 15.
4. Court renders summary judgment.
Note: Any action of the court on a motion for
summary judgment shall not be subject of an
appeal or petition for certiorari, prohibition or
mandamus.
[Sec. 3, Rule 35]
Note: Damages must still be proven even if not
denied. Note language of Sec. 3, Rule 35,
“except as to the amount of damages.”
Bases for summary judgment
a. Affidavits
Page 113 of 525
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b. Depositions
c. Admissions
[Secs. 1-2, Rule 35]
ii. When the Case Not Fully
Adjudicated
Partial summary judgment – applies when for
some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Duty of the court [Sec. 4, Rule 35]
If on motion for summary judgment, judgment
is not rendered upon the whole case or for all
the reliefs sought and a trial is necessary, the
court may:
1. Ascertain which material facts exist without
substantial controversy and the extent to
which the amount of damages and other
reliefs is not in controversy by
a. Examining the pleadings and evidence
before it; and
b. Interrogating counsel
2. Make an order which:
a. Specifies which facts ascertained are
deemed established, and
b. Directs further proceedings as are just
3. Conduct trial on the controverted facts
Effect: A partial summary judgment is not a
final judgment, but merely a pre-trial
adjudication that said issues in the case shall
be deemed established for the trial of the case.
[Guevarra v. CA, G.R. No. L-49017 (1983)]
iii. Affidavits and Attachments
Form
1. Made on personal knowledge
2. Setting forth such facts as would be
admissible in evidence
3. Showing affirmatively that the affiant is
competent to testify to the matters stated
therein
4. Certified true copies of all papers or parts
thereof referenced in the affidavit shall be
attached or served with the affidavit
[Sec. 5, Rule 35]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Affidavits in bad faith [Sec. 6, Rule 35] – i. Contents of a Judgment

those presented under this Rule which appear
to the court at any time as presented in bad Form of judgment or final order determining
faith or solely for the purpose of delay. the merits of the case
a. In writing,
Effect of affidavits in bad faith b. Personally and directly prepared by the
The court: judge,
1. Shall order the offending party or counsel c. Stating clearly & distinctly the facts and the
to pay the other party the amount of law on which it is based,
reasonable expenses which the filing of the d. Signed by the judge, and
affidavits caused him to incur; and e. Filed with the clerk of court.
2. May, after hearing, adjudge the offending [Sec. 1, Rule 36]
party or counsel guilty of contempt. [Sec. 6,
Rule 35] Parts of a judgment
a. The opinion of the court – contains the
e. Distinguish: Judgment on the findings of fact and conclusions of law
Pleadings and Summary b. The disposition of the case – the final and
Judgments actual disposition of the rights litigated (the
dispositive part)
c. Signature of the judge
Summary Judgment on the
[2 Herrera 155, 2007 Ed.]
judgment pleadings
[Rule 35] [Rule 34] Parts of a decision
Absence of a factual In general, the essential parts of a good
Involves an issue, issue in the case decision consist of the following:
but the issue is not because the answer a. Statement of the case,
genuine. tenders no issue at b. Statement of facts,
all. c. Issues or assignment of errors,
Motion for summary d. Court ruling, in which each issue is, as a
Motion for judgment rule, separately considered and resolved,
judgment may be
on the pleadings is and
filed by either the
filed by a claiming e. Dispositive portion.
claiming or the
party like a plaintiff or
defending party.
a counterclaimant. The ponente may also opt to include an
[Secs. 1-2]
[Sec. 1] introduction or a prologue as well as an
epilogue, especially in cases in which
May be ordered controversial or novel issues are involved.
May be ordered motu
motu proprio by the [Velarde v. Social Justice Society, G.R. No.
proprio by the court.
court. [Sec. 10, Rule 159357 (2004)]
[Sec. 10, Rule 18]
18]
Based on the Distinction between judgment and the
Based on the opinion of the court
pleadings, affidavits,
pleadings alone a. Judgment of the court
depositions and
[Sec. 1] b. Opinion of the court - The informal
admissions [Sec. 3]
expression of the views of the court and
[1 Riano 614-615, 2014 Bantam Ed.]
cannot prevail against its final order or
decision. They are not the judgment itself.
Note: While the two may be combined in
one instrument, the opinion forms no part
of the judgment.

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U.P. LAW BOC CIVIL PROCEDURE
c. Findings and conclusion of a court -
While they may constitute its decision and
amount to a rendition of a judgment, they
are not the judgment itself. They amount to
nothing more than an order for judgment,
which, of course, must be distinguished
from the judgment.
[Casilan v. Salcedo, G.R. No. L-23247 (1969),
citing 1 Freeman on Judgments 6, 5th Ed.]
Conflict between disposition and opinion of
the court
General rule: The general rule is that where
there is conflict between the dispositive portion
or the fallo and the body of the decision, the
fallo controls.
Note: This Rule applies only when the
dispositive part is definite, clear, and
unequivocal. [Union Bank v. Pacific Equipment
Corporation, G.R. No. 172053 (2008)]
Exception: Where the inevitable conclusion
from the body of the decision is that there was
a mistake in the dispositive portion, the body of
the decision will prevail. [Rosales v. CA, G.R.
No. 137566 (2001)]
See again “sin perjuicio” judgments above
f. Rendition of Judgments and
Final Orders
Rendition of judgment
Pronouncement of the judgment in open court
does not constitute rendition of judgment. It is
the filing of the signed decision with the
COC that constitutes rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has
not yet been filed with the COC. [Ago v. CA,
G.R. No. L-17898 (1962)]
Promulgation of judgment
Promulgation is the process by which a
decision is published, officially announced,
made known to the public or delivered to the
COC for filing, coupled with notice to the parties
or their counsel. [2 Herrera 151, 2007 Ed.,
Neria v. Commissioner of Immigration, G.R.
No. L-24800 (1968)]
Page 115 of 525
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Period for rendition
a. All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
b. Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower courts.
[Sec. 15, Art. VIII, Constitution,]
A case is deemed submitted for resolution
upon the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court. [Sec. 15, Art. VIII, Constitution]
An extension of the period may be set by the
SC upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse. Without an extension, a
delay in the disposition of cases is tantamount
to gross inefficiency on the part of the judge.
[Arap v. Mustafa, SCC-01-7 (2002)]
i. Entry of Judgment and Final Order
Entry of judgment
The entry of judgment refers to the physical
act performed by the clerk of court in
entering the dispositive portion of the judgment
in the book of entries of judgment after the
same has become final and executory. [1
Riano 615, 2014 Bantam Ed.]
When entered: If no appeal, or motion for new
trial or reconsideration is filed within the time
provided in the Rules, the judgment or final
order shall forthwith be entered by the clerk in
the book of entries of judgments [Sec. 2, Rule
36]
Note: The date of finality of the judgment or
final order shall be deemed to be the date of its
entry. [Sec. 2, Rule 36] This is regardless of the
date when the physical act of entry was done.
[1 Riano 615, 2014 Bantam Ed.]
Contents of record in the book of entries:
a. Dispositive part of the judgment or final
order
b. Signature of the clerk; and
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c. Certification that such judgment or final Amended/clarified Supplemental

order has become final and executory. judgment decision
[Sec. 2, Rule 36] An entirely new Does not take the
decision and place of or extinguish
Final judgment rule supersedes the the original
General rule: Once a decision or order
original judgment. judgment.
becomes final and executory, it is removed
from the power or jurisdiction of the court which Court makes a
rendered it to further alter or amend it. [Siliman thorough study of
University v. Fontelo-Paalan, G.R. No. 170948 the original judgment
(2007)] and renders the
amended and Serves to add to the
Under the doctrine of immutability of clarified judgment original judgment.
judgments, a judgment that has attained only after
finality can no longer be disturbed. The reason considering all the
is two-fold: factual and legal
a. To avoid delay in the administration of issues.
justice, and to make orderly the discharge
[1 Regalado 418, 2010 Ed.]
of judicial business; and
b. To put an end to judicial controversies at
the expense of occasional errors. 18. POST-JUDGMENT
[1 Riano 538-539, 2011 Ed.] REMEDIES
Exceptions: Remedies before finality of judgment
a. Correction of clerical errors [Filipinas
1. Motion for new trial [Rule 37]
Palmoil Processing, Inc. v. Dejapa, G.R.
2. Motion for reconsideration [Rule 37]
No. 167332 (2011)]
3. Appeal [Rules 40-45]
b. Nunc pro tunc entries [Filipinas Palmoil
[1 Riano 60, 2011 Ed.]
Processing, Inc. v. Dejapa, G.R. No.
167332 (2011)]
c. Whenever circumstances transpire after
a. Motion for New Trial or
finality of the decision, rendering its Reconsideration
execution unjust and inequitable [Apo
Fruits Corp. v. Land Bank of the Phils., Note: The motion for reconsideration (MR)
G.R. No. 164195 (2010)] under Rule 37 is directed against a judgment
d. In cases of special and exceptional nature, or final order. It does not refer to one for
when it is necessary in the interest of interlocutory orders, which often precedes a
justice to direct modification in order to petition for certiorari under Rule 65. [1 Riano
harmonize the disposition with the 558, 2011 Ed.]
prevailing circumstances [Industrial Timber
Corp. v. Ababon, G.R. No.164518 (2006)] These motions are prohibited in cases covered
e. In case of void judgments [FGU Insurance by the Rule on Summary Procedure [Sec. 19]
v. RTC Makati, G.R. No. 161282 (2011)] and those falling under the Rules of Procedure
f. Where there is a strong showing that a on Small Claims Cases [Sec. 16].
grave injustice would result from an
application of the Rules [Almuete v. MNT MR
People, G.R. No. 179611 (2013)] 1. Fraud,
1. Damages
g. When there are grounds for annulment of Grounds accident,
awarded
judgment or petition for relief [Gochan v. [Sec. 1, mistake,
are
Mancao, G.R. No. 182314 (2013)] Rule 37] or
excessive
excusable

Page 116 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

negligence 2. That the (b) By reason of which such aggrieved

(FAME) evidence is party has probably been impaired in his
2. Newly insufficient rights.
discovered to justify 2. Newly discovered evidence
evidence the (a) It was discovered after the trial, or
(b) It could not have been discovered and
decision or
produced at the trial even with the
final order
exercise of reasonable diligence; and
3. That the (c) The evidence is of such weight that if
decision or admitted, would probably alter the
final order result of the action; and
is contrary (d) It must be material and not merely
to law collateral, cumulative, or
A 2nd MNT corroborative.
A 2nd MR of a
may be [Sec. 1, Rule 37]
judgment or
allowed if
final order is [FAME]
Second based on a
not allowed. Ground Definition
MNT/MR ground not
Note: This The fraud must be extrinsic.
[Sec. 5, existing or
prohibition • Any fraudulent scheme
Rule 37] available when
does not apply executed outside of the
the 1st MNT
to interlocutory trial by the prevailing party
was made.
orders. against the losing party,
The original who, because of such
Fraud
judgment or fraud, is prevented from
final order presenting his side of the
shall be The court may case, or judgment was
vacated, and amend the procured without fair
the action shall judgment or submission of the
stand for trial final order controversy.
Effect if de novo; but accordingly if It may either be a mistake of
granted the recorded the ground fact or mistake of law made in
Mistake
evidence shall relied upon good faith by the defendant
be used in the prevails. who was misled in the case.
new trial [Sec. 3, Rule It must be one that is imputable
without 37] to the party.
retaking the
same. [Sec. 6, Excusable Note: The negligence of
Rule 37] negligence counsel is binding on the client
except if it was so great as to
i. Grounds prejudice the client and prevent
fair presentation of the case.
Grounds for Motion for New Trial (MNT) [1 Regalado, 2010 Ed.]
One or more of the following causes materially
affecting the substantial rights of said party: Note: A motion for reopening the trial is
1. Fraud, accident, mistake or excusable different from a motion for new trial—the
negligence (FAME) latter can only be done after promulgation of
(a) Ordinary prudence could not have judgment whereas the former may properly be
guarded against, and presented after either or both parties have

Page 117 of 525

U.P. LAW BOC CIVIL PROCEDURE
formally offered and closed their evidence
before judgment. [1 Regalado 432, 2010 Ed.]
Grounds for Motion for Reconsideration
1. Damages awarded are excessive;
2. Evidence is insufficient to justify the
decision or final order; or
3. Decision or final order is contrary to law.
[Sec. 1, Rule 37]
Note: If the MR is based on the same grounds
as that for a MNT, it is considered a MNT.
[Rodriguez v. Rovira, G.R. No. 45252 (1936)]
ii. When to File; Form
Within the period for taking an appeal [Sec. 1,
Rule 37]
See Period of appeal below.
Note: An MNT and MR may only be availed of
by a party to the proceeding. [Alaban vs CA,
G.R. No. 156021 (2005)]
Contents
The motion shall be:
a. Made in writing,
b. Stating the ground or grounds therefor, and
c. A written notice of which shall be served by
the movant on the adverse party.
An MNT shall be proved in the manner
provided for proof of motions.
a. A motion based on FAME - supported by
affidavits of merits which may be rebutted
by affidavits.
b. A motion based on newly-discovered
evidence - supported by affidavits of the
witnesses by whom such evidence is
expected to be given, or by duly
authenticated documents which are
proposed to be introduced in evidence.
When MNT based on FAME not
accompanied by affidavit of merits
General rule: Denied
Exceptions:
1. The court has no jurisdiction over the
defendant/ subject matter, so the judgment
is null and void
Page 118 of 525
REMEDIAL LAW
2. The judgment is defective as where a
judgment by default was rendered even
before the reglementary period to answer
had expired.
3. The defendant was deprived of his day
in court as when no notice of hearing was
furnished him
[1 Regalado 435, 2010 Ed.]
A MR shall point out specifically the findings or
conclusions of the judgment or final order
which are not supported by the evidence or
which are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged to
be contrary to such findings or conclusions.
Note: A pro forma MNT/MR shall not toll the
reglementary period of appeal.
[Sec. 2, Rule 37]
When MNT considered pro forma
1. Based on the same ground raised in
preceding MNT/MR already denied;
2. Contains the same arguments and manner
of discussion in the prior opposition to a
motion to dismiss which was granted;
3. The new ground alleged in the 2nd MNT
was available and could have been alleged
in the first MNT which was denied;
4. Based on the ground of insufficiency of
evidence/that the judgment is contrary to
law, but does not specify the supposed
defects in judgment; or
5. Based on FAME but does not specify the
facts constituting these grounds and/or is
not accompanied by an affidavit of merits.
[1 Regalado 193, 2010 Ed.]
Single-motion rule [Sec. 5, Rule 37]
Motion for New Trial
An MNT shall include all grounds then
available and those not so included shall be
deemed waived.
• A 2nd MNT, based on a ground not
existing nor available when the first
motion was made, may be filed within the
time herein provided excluding the time
during which the first motion had been
pending.
U.P. LAW BOC CIVIL PROCEDURE
Motion for Reconsideration
A 2nd motion for reconsideration of a judgment
or final order is not allowed.
Court action
The trial court may:
1. (MNT) Set aside the judgment or final order
and grant a new trial, upon such terms as
may be just
2. (MR) Amend such judgment or final order
accordingly if the court finds that
a. Excessive damages have been
awarded or that, or
b. Judgment or final order is contrary to
the evidence or law
3. Deny the motion
[Sec. 3, Rule 37]
Court resolution
The motion shall be resolved within 30 days
from the time it is submitted for resolution. [Sec.
4, Rule 37]
Note: The 30-day period to resolve the motion
is mandatory. [Gonzales v. Bantolo, A.M. No.
RTJ-06-1993 (2006)]
iii. Denial of the Motion; Effect
An order denying a MNT or MR is not
appealable.
The remedy is an appeal from the judgment or
final order. [Sec 9, Rule 37]
Note: The order denying the motion may itself
be assailed by a petition for certiorari under
Rule 65. [1 Regalado 437, 2010 Ed.]
iv. Grant of the Motion; Effect
Grant of MNT
The original judgment or final order shall be
vacated, and the action shall stand for trial de
novo;
Note: The recorded evidence taken upon the
former trial, insofar as the same is material and
competent to establish the issues, shall be
used at the new trial without retaking the same.
[Sec. 6, Rule 37]
Grant of MR
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The court may amend such judgment or final
order. [Sec. 3, Rule 37]
Partial grant of new trial or reconsideration
If the grounds for a motion under this Rule
appear to the court to affect:
1. The issues as to only a part, or
2. Less than all of the matter in controversy,
or
3. Only one, or less than all, of the parties to
it,
the court may order a new trial or grant
reconsideration as to such issues if
severable without interfering with the judgment
or final order upon the rest. [Sec. 7, Rule 37]
Partial new trial; effect
When less than all of the issues are ordered
retried, the court may either
1. Enter a judgment or final order as to the
rest, or
2. Stay the enforcement of such judgment or
final order until after the new trial.
[Sec. 8, Rule 37]
v. Remedy When Motion is Denied,
Fresh 15-day Period Rule
15-day period to file the notice of appeal
The SC has allowed a fresh period of 15 days
within which to file the notice of appeal in the
RTC, counted from receipt of the order
dismissing a MNT/MR.
- The fresh period of 15 days becomes
significant only when a party opts to file
a motion for new trial or motion for
reconsideration.
[Neypes v. CA, G.R. No. 141524 (2005)]
Note: What is appealed is the judgment
itself, not the order denying the MNT/MR.
[Sec. 9, Rule 37]
b. Appeals in General
Nature
a. The right to appeal is not a constitutional,
natural, or inherent right.
b. It is a statutory privilege and of statutory
origin and is available only if granted or if
U.P. LAW BOC CIVIL PROCEDURE
so provided by statute. [Yu vs Samson-
Tatad, 642 SCRA 421 (2011)]
c. As a rule, the perfection of an appeal in the
manner and within the period prescribed by
law is not only mandatory, but
jurisdictional. A failure to comply with the
rules of appeal will render the judgment
final and executory. [Landbank of the
Philippines vs CA, G.R. No. 221636
(2016)]
Appeal vs. Action to review
An appeal is different from an action to review.
In an appeal, the court by which the first
determination was made is not a party to the
proceeding for review whereas in an action for
review, the court which made the
determination is a party to the proceeding for
review [1 Regalado 556, 2010 Ed.]
Harmless error rule in appellate decisions
No error in either the admission or the
exclusion of evidence and no error or defect in
any ruling or order or in anything done or
omitted by the trial court or by any of the parties
is ground for granting a new trial or for
setting aside, modifying, or otherwise
disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. [Sec. 6,
Rule 51]
The court at every stage of the proceeding
must disregard any error or defect which
does not affect the substantial rights of the
parties. [Sec. 6, Rule 51]
We have likewise followed the harmless error
rule in our jurisdiction. In dealing with
evidence improperly admitted in trial, we
examine its damaging quality and its impact to
the substantive rights of the litigant. If the
impact is slight and insignificant, we disregard
the error as it will not overcome the weight of
the properly admitted evidence against the
prejudiced party. [People v. Teehankee, G.R.
Nos. 111206-08 (1995)]
i. Judgments and Final Orders
Subject to Appeal
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An appeal may be taken from a judgment or
final order that completely disposes of the
case, or of a particular matter therein when
declared by the ROC to be appealable [Sec. 1,
Rule 41]
Note: Not every judgment or final order is
appealable. An example of judgments or final
orders which do not completely dispose of a
case and are, hence, not appealable are
several and separate judgments provided for
under Secs. 4 and 5 of Rule 36.
ii. Matters Not Appealable
1. An order denying a petition for relief or any
similar motion seeking relief from
judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an
appeal;
4. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom; and
7. An order dismissing an action without
prejudice.
[Sec. 1, Rule 41, as amended by A.M. No. 07-
7-12-SC]
Final order v. Interlocutory order
Final Order Interlocutory Order
One that finally One that determines
disposes of a case, incidental matters
leaving nothing more that does not touch
to be done by the on the merits of the
Court in respect case or put an end to
thereto. the proceedings.
[Investments, Inc. v. [Silverio Jr. v.
CA, G.R. No. L- Filipino Business
60036 (1987)] Consultants, Inc.,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

G.R. No. 143312 4. Petition for review on certiorari – Rule 45

(2005)]

Proper remedy to
question an
improvident
interlocutory order is
Subject to appeal
a petition for
[Investments, Inc. v.
certiorari under Rule
CA, G.R. No. L-
65 [Silverio Jr. v.
60036 (1987)]
Filipino Business
Consultants, Inc.,
G.R. No. 143312
(2005)]
Not considered
Must express clearly decisions or
and distinctly the judgments within the
facts and the law on constitutional
which it is based. definition [1 Riano
[Sec. 14, Art. VIII, 581, 2014 Bantam
Constitution] Ed., citing Amargo v.
CA, G.R. No.
[Pahila-Garrido v Tortogo, G.R. No. 156358
(2011)]

Effect of an appeal from an interlocutory

order
If an order appealed from is interlocutory, the
appellate court can dismiss the appeal even if
the appellee did not file any objection. [1
Regalado 552, 2010 Ed.]

iii. Remedy Against Judgments and

Orders Which Are Not Appealable

In those instances where the judgment or final

order is not appealable, the aggrieved party
may file the appropriate special civil action
under Rule 65. [Sec. 1, Rule 41]

iv. Modes of Appeal

1. Ordinary appeal – Rule 40 and 41

a. Notice of appeal
b. Record on appeal
2. Petition for review – Rule 42
3. Appeal from quasi-judicial agencies (QJAs)
to the CA – Rule 43

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Modes of Appeal

Ordinary Petition for Appeals from Petition for Review

Appeal Review QJAs to the CA by Certiorari
Rule Rule 41 Rule 42 Rule 43 Rule 45
Case where only
Awards, judgments, questions of law are
final orders or raised or involved.
resolutions of or [Sec. 2(c), Rule 41]
Case decided authorized by any
Case decided
by RTC in QJA in the exercise Appeal by certiorari
by RTC in
exercise of of its quasi-judicial from a judgment or
exercise of
appellate functions. [Sec. 1] final order or
original
jurisdiction. resolution of the CA,
jurisdiction.
[Sec. 2(b), Rule EXCEPT: the Sandiganbayan,
[Sec. 2(a)]
41] Judgments or final the RTC or other
orders issued under courts whenever
the Labor Code. authorized by law.
[Sec. 2] [Sec. 1]

Notice of
Petition for
Mode appeal/Record Verified petition for Petition for review on
review with the
of on appeal with review with the CA certiorari with the SC
CA [Sec. 2(b),
appeal the CA [Sec. [Sec. 5] [Sec. 2(c), Rule 41]
Rule 41]
2(a)]
File a verified petition File verified petition
Filing a notice File a verified for review in 7 legible for review on
of appeal with petition for copies with the CA, certiorari with the SC
the court review with the with proof of service [Sec. 1]
which CA, paying at of a copy thereof on
rendered the the same time to the adverse party Petitioner shall pay
judgment or the clerk of said and on the court or the corresponding
final order court the agency a quo. The docket and other
appealed from corresponding original copy of the lawful fees to the
and serving a docket and petition intended for COC of the SC and
How copy thereof other lawful the CA shall be deposit the amount
made upon the fees, depositing indicated as such by of PHP 500.00 for
adverse party the amount of the petitioner. costs at the time of
PHP 500.00 for the filing of the
If required, the costs, and Upon the filing of the petition. Proof of
record-on furnishing the petition, the service of a copy
appeal shall RTC and the petitioner shall pay to thereof on the lower
be filed and adverse party the COC of the CA court concerned and
served in like with a copy of the docketing and on the adverse party
manner [Sec. the petition other lawful fees and shall be submitted
2] [Sec. 1] deposit the sum of together with the
PHP 500.00 for costs petition [Sec. 3]

Page 122 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Sec.5]
Within 15 days from:
Within 15 days 1. Notice of the
from notice of award,
judgment, final
the judgment
Within 15 days order or
or final order Within 15 days from
from notice of resolution, or
appealed from notice of
1. The 2. The date of
1. The judgment or
decision i. its last
Where a final order or
sought to publication, if
record of resolution
be reviewed publication is
Period appeal is appealed from,
or required by
or
of required, file a 2. The denial law for its
2. The denial of the
appeal notice of of effectivity, or
petitioner’s MNT
appeal and a petitioner’s ii. the denial of
or MR filed in
record on MNT or MR petitioner’s
due time after
appeal within filed in due MNT or MR
notice of the
30 days from time after duly filed in
judgment
judgment accordance
notice of the [Sec. 2]
[Sec. 1] with the
judgment or
governing law
final order of the court or
[Sec. 3] agency a quo
[Sec. 4]

v. Issues to Be Raised on Appeal 5. That is a plain clerical error,

Issues
Issues that have not been raised before the
lower courts cannot be raised on the first time
on appeal. [Spouses Erorita vs Spouses
Dumlao, G.R. No. 195477 (2016)]
Errors
General Rule: The appellate court shall
consider no error unless stated in the
assignment of errors. [Sec. 8, Rule 51]
Exceptions: The court may consider an error
not raised on appeal provided that it is an error:
1. That affects the jurisdiction over the subject
matter,
2. That affects validity of the judgment
appealed from,
3. Which affects the validity of the
proceedings,
4. That is closely related to or dependent to
an assigned error, and properly argued in
brief,
6. Of which consideration is necessary to
arrive at a just decision and complete
resolution of the case or serve the interests
of justice, or
7. Raised in the trial court and are matters of
record having such bearing on the issue
submitted which the parties failed to raise
or which the lower court.
[1 Riano 529-530, 2016 Ed.]
The appellate court has no jurisdiction to
review a judgment which is immediately final
and executory by express provision of law.
[Republic v. Bermudez-Lorino, G.R. No.
160258 (2005)]
vi. Period of Appeal
The fresh period rule shall apply to:
1. Rule 40 governing appeals from the MTCs
to the RTCs
2. Rule 41 governing appeals from the RTCs
to CA

Page 123 of 525

U.P. LAW BOC CIVIL PROCEDURE
3. Rule 42 on petitions for review from the
RTCs to the CA
4. Rule 43 on appeals from quasi-judicial
agencies to the CA, and
5. Rule 45 governing appeals by certiorari to
the SC
Note: The fresh period rule gives the appellant
a fresh 15-day period within which to make his
appeal from the order denying the MNT, MR,
or any final order or resolution.
The new rule aims to regiment or make the
appeal period uniform, to be counted from
receipt of the order denying the MNT, MR
(whether full or partial) or any final order or
resolution [Neypes v. CA, G.R. No. 141524
(2005)]
vii. Perfection of Appeal
Perfection of an appeal in the manner and
within the period laid down by law is
mandatory and jurisdictional [Balgami v. CA,
G.R. No. 131287 (2004)]
Effect of failure to perfect appeal
a. Defeats a party’s right to appeal, and
b. Precludes appellate court from acquiring
jurisdiction.
[1 Riano 20, 2011 Ed.]
Dismissal, Reinstatement, And Withdrawal
of Appeal
Grounds for dismissal of appeal
1. Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by the ROC
2. Failure to file the notice of appeal or the
record on appeal within the period
prescribed by the ROC
3. Failure of the appellant to pay the docket
and other lawful fees as provided in Sec. 4,
Rule 41
4. Unauthorized alterations, omissions or
additions in the approved record on appeal
as provided in Sec. 4 of Rule 44
5. Failure of the appellant to serve and file the
required number of copies of his brief or
Page 124 of 525
REMEDIAL LAW
memorandum within the time provided by
the ROC
6. Absence of specific assignment of errors in
the appellant’s brief, or of page references
to the record as required in Sec. 13(a), (c),
(d) and (f) of Rule 44
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives
of the court without justifiable cause, and
9. The fact that order or judgment appealed
from is not appealable
[Sec. 1, Rule 50]
10. Appeal under Rule 41 taken from the RTC
to the CA raising only questions of law
11. Appeal by notice of appeal instead of by
petition for review from the appellate
judgment of a RTC
[Sec. 2, Rule 50]
Other grounds
1. By agreement of the parties (i.e. amicable
settlement)
2. Where appealed case has become moot or
academic
3. Where appeal is frivolous or dilatory
[1 Regalado 644-645, 2010 Ed.]
Withdrawal of appeal
1. An appeal may be with­drawn as a matter
of right at any time before the filing of the
appellee’s brief.
2. Thereafter, the withdrawal may be allowed
in the discretion of the court.
[Sec. 3, Rule 50]
Dismissal by the SC
The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
1. Failure to take the appeal within the
reglementary period
2. Lack of merit in the petition
3. Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs
U.P. LAW BOC CIVIL PROCEDURE
4. Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition
5. Failure to comply with any circular,
directive or order of the SC without
justifiable cause
6. Error in the choice or mode of appeal, and
7. The fact that the case is not appealable to
the SC.
[Sec. 5, Rule 56]
viii. Appeal from Judgments or Final
Orders of The Metropolitan Trial
Courts/ Municipal Trial Courts/
Municipal Trial Courts In Cities/
Municipal Circuit Trial Courts
Procedure [Rule 40]
File a notice of appeal with the court that
rendered the judgment or final order
appealed from [Sec. 3]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the
appellate court docket and other lawful fees
[Sec. 5]
↓ 3. The period of appeal shall be interrupted
Within 15 days from the perfection of the
appeal, the COC or the branch COC of the
lower court shall transmit the original record
or the record on appeal, together with the
transcripts and exhibits, which he shall
certify as complete, to the proper RTC. A
copy of his letter of transmittal of the records
to the appellate court shall be furnished the
parties [Sec. 6]
↓ of the court. [Socco v. Garcia, G.R. No. L-
Upon receipt of the complete record or the
record on appeal, the COC of the RTC shall
notify the parties of such fact [Sec. 7(a)]
↓
Within 15 days from such notice, it shall be
the duty of the appellant to submit a
memorandum which shall briefly discuss the
errors imputed to the lower court, a copy of
which shall be furnished by him to the
Page 125 of 525
REMEDIAL LAW
adverse party. Failure of the appellant to file
a memorandum shall be a ground for
dismissal of the appeal [Sec. 7(b)]
↓
Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum [Sec. 7(c)]
↓
Upon the filing of the memorandum of the
appellee, or the expiration of the period to do
so, the case shall be considered submitted
for decision. The RTC shall decide the case
on the basis of the entire record of the
proceedings had in the court of origin and
such memoranda as are filed [Sec. 7(d)]
Where taken
To the RTC exercising jurisdiction over the
area to which the former pertains. [Sec. 1, Rule
40]
When taken
1. Within 15 days after notice to the appellant
of the judgment or final order appealed
from.
2. Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days after
notice of the judgment or final order.
by a timely motion for new trial or
reconsideration. No motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed.
[Sec. 2, Rule 40]
Extension of period to appeal
Period to appeal may be extended but such
extension is addressed to the sound discretion
18231 (1962)]
U.P. LAW BOC CIVIL PROCEDURE
How taken
By notice of appeal
1. File a notice of appeal with the trial court
that rendered the judgment or final order
appealed from
• indicating the parties to the appeal, the
judgment or final order or part thereof
appealed from, and state the material
dates showing the timeliness of the
appeal.
2. Copies of the notice of appeal shall be
served on the adverse party.
[Sec. 3, Rule 40]
3. Pay to the COC which rendered the
judgment or final order appealed from the
full amount of the appellate court docket
and other lawful fees. [Sec. 5, Rule 40]
By record on appeal
1. File a notice of appeal [Sec. 2, Rule 41]
following the steps above.
2. The form and contents of the record on
appeal shall be as provided in Sec. 6, Rule
41. (see appeals from judgments or final
orders of the RTC)
3. Copies of the notice of appeal, and the
record on appeal where required, shall be
served on the adverse party.
[Sec. 3, Rule 40]
4. Pay to the COC which rendered the
judgment or final order appealed from the
full amount of the appellate court docket
and other lawful fees. [Sec. 5, Rule 40]
Note: Record on appeal shall be required only
in:
1. Special proceedings
2. In such other cases of multiple or separate
appeals
[Sec. 2, Rule 41]
Perfection of appeal
The perfection of the appeal and the effect
thereof shall be governed by the provisions of
Sec. 9, Rule 41. [Sec. 4, Rule 40]
See appeals from judgments or final orders of
the RTC.
Appeal from order dismissing a case
without trial; lack of jurisdiction
Page 126 of 525
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Two Scenarios
1. If an appeal is taken from an order of the
lower court dismissing the case without
a trial on the merits
a. The RTC may affirm or reverse it, as
the case may be
b. In case of affirmance and the ground
of dismissal is lack of jurisdiction
over the subject matter, the RTC, if it
has jurisdiction thereover, shall try the
case on the merits as if the case was
originally filed with it
c. In case of reversal, the case shall be
remanded for further proceedings
2. If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the RTC on appeal shall
not dismiss the case if it has original
jurisdiction thereof, but shall decide the
case in accordance with Sec. 7, Rule 40,
without prejudice to the admission of
amended pleadings and additional
evidence in the interest of justice
[Sec. 8, Rule 40]
Applicability of Rule 41
The other provisions of Rule 41 shall apply to
appeals provided for herein insofar as they are
not inconsistent with or may serve to
supplement the provisions of Rule 40. [Sec. 9,
Rule 40]
ix. Appeal from Judgments or Final
Orders of The Regional Trial
Courts
RULE 41
Appeal from the RTC to the CA via Rule 41
presupposes that
1. The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its original
jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
[1 Regalado 555, 2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE
NOTICE OF APPEAL
Contents
1. Parties to the appeal
2. Judgment or final order or part thereof
appealed from
3. Court to which the appeal is being taken,
and
4. Material dates showing the timeliness of
the appeal
[Sec. 5, Rule 41]
RECORD ON APPEAL
General Rule: No record on appeal shall be
required
Exception: In special proceedings and other
cases of multiple or separate appeals where
the law or the ROC so require.
• In such cases, the record on appeal shall
be filed and served in like manner. [Sec.
2(a), Rule 41]
Contents of the record on appeal
1. Full names of all the parties to the
proceedings shall be stated in the caption
of the record on appeal
2. The judgment or final order from which the
appeal is taken and,
3. In chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue involved,
4. Together with such data as will show that
the appeal was perfected on time.
[Sec. 6, Rule 41]
Note: The requirement that the record on
appeal must show on its face that the
appeal was perfected on time is mandatory
and jurisdictional that if not complied with, the
appeal must be dismissed. [1 Regalado 563,
2010 Ed.]
Exception: If the trial court issued an order to
the effect that the appeal was seasonably
perfected with the filing of the notice of appeal
and the record on appeal within the
reglementary period. [Pimentel v. CA, G.R. No.
L-39684 (1975)]
Page 127 of 525
REMEDIAL LAW
If an issue of fact is to be raised on appeal,
the record on appeal shall include by
reference all the evidence taken upon the issue
involved.
1. The reference shall specify the
a. Documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at
the hearing, and
b. Testimonial evidence by the names of
the corresponding witnesses
2. If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits.
3. Every record on appeal exceeding 20
pages must contain a subject index.
[Sec. 6, Rule 41]
Approval of the record on appeal
1. Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within 5 days from receipt of a
copy thereof, the trial court may:
a. Approve it as presented or upon its
own motion, or
b. At the instance of the appellee, may
direct its amendment
• by the inclusion of any omitted
matters which are deemed
essential to the determination of
the issue of law or fact involved in
the appeal.
2. If the trial court orders the amendment
of the record, the appellant, within the time
limited in the order, or such extension
thereof as may be granted, or if no time is
fixed by the order within 10 days from
receipt thereof, shall:
a. Redraft the record by including therein,
in their proper chronological sequence,
such additional matters as the court
may have directed him to incorporate,
and
b. Submit the redrafted record for
approval, upon notice to the appellee,
in like manner as the original draft.
[Sec. 7, Rule 41]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Joint record on appeal [Berkenkotter v. CA, G.R. No. L-36629 (1973)]

Where both parties are appellants, they may Conversely, dismissal constitutes a denial of
file a joint record on appeal within 30 days from the extension prayed for, in which case the only
notice of judgment or final order, or that fixed question that can arise is whether the trial court
by the court. [Secs. 3 and 8, Rule 41] had gravely abused its discretion in denying
such extension. [PVTA v. Delos Angeles, G.R.
Period to appeal No. L-29736, (1974)]
1. Within 15 days from notice of judgment or
final order appealed from Pleadings to be filed
2. Within 30 days from notice of judgment or 1. Appellant’s brief
final order where a record on appeal is 2. Appellee's brief
required 3. Appellant’s reply brief
3. Within 48 hours from notice of judgment or
final order appealed from in habeas corpus Appellant’s brief
cases It shall be the duty of the appellant to file with
[Sec. 3, Rule 41] the court, within 45 days from receipt of the
notice of the clerk that all the evidence, oral and
Note: If a MNT/MR was properly filed but the documentary, are attached to the record, 7
motion was ultimately dismissed, a fresh copies of his legibly typewritten,
period of 15 days within which to file the notice mimeographed or printed brief, with proof of
of appeal in the RTC, counted from receipt of service of 2 copies thereof upon the appellee.
the order dismissing the motion is granted. [Sec. 7, Rule 44]
[Neypes v. CA, G.R. No. 141524 (2005)]
Note: Under Sec. 5(b) of the Efficient Use of
Reckoning point of reglementary period Paper Rule [A.M. 11-9-4-SC], file one original
Period for filing the appeal should be (properly marked) and 2 copies with their
counted from the date when the party’s counsel annexes with the CA.
received a copy of the judgment or final order
because that is the effective service of the Grounds for dismissal with respect to
decision. When a party is represented by appellant’s brief:
counsel, service of process must be made on 1. Failure of the appellant to serve and file the
counsel, not on the party. [Fajardo v. CA, G.R. required number of copies of his brief within
No. 140356 (2001); Sec. 2, Rule 13] the time provided by the ROC, or
2. Absence of specific assignment of errors in
Note: The mere filing and pendency of motion the appellant’s brief.
for extension to perfect appeal does not [Sec. 1(e)-(f), Rule 50]
suspend the running of the reglementary
period. [King v. Corro, G.R. No. L-23617 Contents
(1967)] 1. Subject index
2. Assignment of errors
Extension of period to appeal 3. Statement of the Case
The period to appeal may be extended but 4. Statement of Facts
such extension is addressed to the sound 5. Statement of issues
discretion of the court. [Gregorio v. CA, G.R. 6. Arguments
No. L-43511 (1976)] 7. Relief
8. Copy of judgment or final order appealed
Note: If the trial court approves the record from [Sec. 13, Rule 44]
on appeal even if the period for the appeal
has expired, this is tantamount to a valid order Appellee’s brief
granting the extension prayed for by the Within 45 days from receipt of the appellant’s
appellant if any such motion has been filed brief, the appellee shall file with the court 7

Page 128 of 525

U.P. LAW BOC CIVIL PROCEDURE
copies of his legibly typewritten,
mimeographed or printed brief, with proof of
service of 2 copies thereof upon the appellant.
[Sec. 8, Rule 44]
Note: Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one original
(properly marked) and 2 copies with their
annexes with the CA.
Contents
1. Subject index
2. Statement of Facts or Counter-Statement
of Facts
3. Argument
[Sec. 14, Rule 44]
Appellant’s reply brief
Within 20 days from receipt of the appellee’s
brief, the appellant may file a reply brief
answering points in the appellee’s brief not
covered in his main brief. [Sec. 9, Rule 44]
Extension of time for filing briefs:
General rule: Not allowed
Exception: Good and sufficient cause, and
only if the motion for extension is filed before
the expiration of the time sought to be
extended.
[Sec. 12, Rule 44]
Payment of docket fees
1. Within the period for taking an appeal, the
appellant shall pay to the clerk of the
court which rendered the judgment or final
order appealed from, the full amount of the
appellate court docket and other lawful
fees.
2. Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.
[Sec. 4, Rule 41]
Note: Payment of docket fees in full is
mandatory and is a condition sine qua non
for the perfection of an appeal. Subsequent
payment of appellate docket fees does not cure
the defect of the appeal because payment is a
jurisdictional requirement. [Santander v
Villanueva, G.R. No. L-6184 (1958)]
Page 129 of 525
REMEDIAL LAW
Perfection of appeal
1. A party’s appeal by notice of appeal is
deemed perfected as to him upon the filing
of the notice of appeal in due time.
2. A party’s appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the
approval of the record on appeal filed in
due time.
[Sec. 9, Rule 41]
Note: An appellant who fails to perfect his
appeal on time due to FAME may file for a
petition for relief under Sec. 2, Rule 38. If his
petition for relief is denied, he can file a petition
under Rule 65, since the denial of a petition for
relief is no longer appealable under Sec. 1 of
Rule 41 [De Luna v. Palacio, G.R. No. L-26927
(1969)]
Effect of perfected appeal
1. In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties.
2. In appeals by record on appeal, the court
loses jurisdiction only over the subject
matter thereof upon the approval of the
records on appeal filed in due time and the
expiration of the time to appeal of the other
parties.
[Sec. 9, Rule 41]
Residual powers/jurisdiction of the RTC
In either case, prior to the transmittal of the
original record or the record on appeal, the
court may
1. Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39, and
5. Allow withdrawal of the appeal
[Sec. 9, Rule 41]
Note: There is no residual jurisdiction to speak
of where no appeal or petition has even been
U.P. LAW BOC CIVIL PROCEDURE
filed. [Fernandez v. CA, G.R. No. 131094
(2005)]
Duty of clerk upon perfection of appeal
1. Within 30 days after perfection of all the
appeals in accordance with the preceding
section, it shall be the duty of the COC of
the lower court:
a. To verify the correctness of the original
record or the record on appeal and to
make a certification of its correctness,
b. To verify the completeness of the
records that will be transmitted to the
appellate court,
c. If found to be incomplete, to take such
measures as may be required to
complete the records, availing of the
authority that he or the court may
exercise for this purpose; and
d. To transmit the records to the appellate
court
2. If the efforts to complete the records fail, he
shall indicate in his letter of transmittal
the exhibits or transcripts not included in
the records being transmitted to the
appellate court, the reasons for their non-
transmittal, and the steps taken or that
could be taken to have them available.
3. The COC shall furnish the parties with
copies of his letter of transmittal of the
records to the appellate court.
[Sec. 10, Rule 41]
Note: Even if the appeal has already been
perfected but the records have not yet been
transmitted to the appellate court, the trial
court still has jurisdiction to set aside its order
approving the record on appeal. [Cabungcal v.
Fernandez, G.R. No. L-16520 (1964)]
Dismissal of appeal
Prior to the transmittal of the original record or
the record on appeal to the appellate court, the
trial court may motu proprio or on motion
dismiss the appeal for:
1. Having been taken out of time, or
2. Non-payment of the docket and other
lawful fees within the reglementary period.
[Sec. 13, Rule 41]
Page 130 of 525
REMEDIAL LAW
RULE 42
Petition for review from the RTC to the CA
Appeal via Rule 42 is proper when one appeals
from a decision of the RTC in the exercise of its
appellate jurisdiction. It may be taken on
either questions of fact, questions of law, or on
mixed questions of fact and law. [Macawiwili
Gold Mining and Development Co., Inc. v. CA,
G.R. No. 115104 (1998)]
This mode of appeal is not a matter of right
but is a matter of discretion on the part of the
CA, on whether or not to entertain the appeal
[1 Regalado 581, 2010 Ed.]
Note: Since Rule 42 is a petition for the
purpose of appeal and not petitions in original
actions, lower courts/judges that rendered
the judgment complained of are not
impleaded as parties in the appeal. [1
Regalado 579, 2010 Ed.]
How taken
If a party desires to appeal from a decision of
the RTC in its appellate jurisdiction:
1. File a verified petition for review with the
CA
a. Within 15 days from notice of judgment
or final order, or
b. Within 15 days from notice of denial of
petitioner’s MNT or MR
2. Pay at the same time to the clerk of the CA
the corresponding docket and other
lawful fees,
3. Deposit PHP 500.00 for costs, and
4. Furnish the RTC and the adverse party with
a copy of the petition.
[Sec. 1, Rule 42]
Period to appeal
The petition shall be filed and served within 15
days from notice of the decision sought to be
reviewed or of the denial of the petitioner's
MNT or MR filed in due time after judgment.
[Sec. 1, Rule 42]
Extension of period
Upon proper motion and the payment of the
full amount of the docket and other lawful fees
and the deposit for costs before the
expiration of the reglementary period, the
U.P. LAW BOC CIVIL PROCEDURE
CA may grant an additional period of 15 days
only within which to file the petition for review.
No further extension shall be granted except
for the most compelling reason and in no case
to exceed 15 days. [Sec. 1, Rule 42]
Form and contents
1. In 7 legible copies, with the original copy
intended for the court being indicated as
such by the petitioner
• Note: Under Sec. 5(b) of the Efficient
Use of Paper Rule [A.M. 11-9-4-SC],
file one original (properly marked) and
2 copies with their annexes with the CA
2. Full names of the parties to the case,
without impleading the lower courts or
judges thereof either as petitioners or
respondents
3. Specific material dates showing that it was
filed on time
4. A concise statement of the
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law, or
both, allegedly committed by the RTC,
and
d. Reasons or arguments relied upon for
the allowance of the appeal
5. Clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
COC of the RTC,
6. The requisite number of plain copies
thereof and of the pleadings and
7. Other material portions of the record as
would support the allegations of the petition
8. Certification of non-forum shopping
[Sec. 2, Rule 42]
Effect of failure to comply
Failure to comply with any of the following
requirements shall be sufficient ground for
dismissal:
1. Payment of docket and other lawful fees
Note: In petitions for review under Rules
42, 43, and 45, the docket fee is paid in the
appellate courts
2. Deposit for costs
3. Proof of service of petition
4. Contents of the documents which should
accompany the petition
Page 131 of 525
REMEDIAL LAW
[Sec. 3, Rule 42]
Note: Failure to append the pleadings and
material portions of the record does not justify
the outright dismissal of the petition. There is
substantial compliance when the pleadings
were attached to the MR. [Mendoza v. David,
G.R. No. 147575 (2004)]
Perfection of appeal
Appeal is deemed perfected as to petitioner
upon the
1. Timely filing of the petition, and
2. Payment of the corresponding docket and
lawful fees.
[Sec. 8(a), Rule 42]
Jurisdiction of the RTC
1. The RTC loses jurisdiction over the case
upon the perfection of the appeals filed in
due time and the expiration of the time to
appeal of the other parties.
2. However, before the CA gives due
course to the petition, the RTC may:
a. Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter
litigated by the appeal, approve corn-
promises
b. Permit appeals of indigent litigants
c. Order execution pending appeal in
accordance with Sec, 2 of Rule 39, and
d. Allow withdrawal of the appeal.
[Sec. 8(a), Rule 42]
Note: The Doctrine of Residual Jurisdiction
of the RTC, at item (2) above, applies as in
cases under Rule 42, except that the RTC must
exercise this jurisdiction before the CA gives
due course to the petition. [Sec. 8(a), Rule 42]
In contrast, the RTC must exercise residual
jurisdiction in Rule 41 prior to transmittal of the
original record or the record on appeal. [Sec. 9,
Rule 41]
Effect of appeal
General rule: The appeal shall stay the
judgment or final order.
Exceptions:
U.P. LAW BOC CIVIL PROCEDURE
1. Civil cases decided under the Rule on
Summary Procedure, or
2. The CA, the law, or ROC provide otherwise
[Sec. 8(a), Rule 42]
Action on petition
The CA may:
1. Require the respondent to file a comment
on the petition, not a motion to dismiss,
within 10 days from notice; or
2. Dismiss the petition if it finds
a. The same to be patently without merit
or prosecuted manifestly for delay, or
b. That the questions raised therein are
too insubstantial to require
consideration
[Sec. 4, Rule 42]
Note: Under this Rule, appeal is discretionary
on the CA which may give its due course only
when the petition shows prima facie that the
lower court has committed error. [1 Riano 600,
2011 Ed.]
Contents of comment
1. In 7 legible copies
• Note: Under Sec. 5(b) of the Efficient
Use of Paper Rule [A.M. 11-9-4-SC],
file one original (properly marked) and
2 copies with their annexes with the CA
2. Certified true copies of such material
portions of the record referred to therein
3. Together with other supporting papers
4. Whether or not he accepts the statement of
matters involved in the petition
5. Such insufficiencies or inaccuracies as he
believes exist in petitioner’s statement of
matters involved but without repetition, and
6. The reasons why the petition should not be
given due course.
A copy thereof shall be served on the
petitioner.
[Sec. 5, Rule 42]
Due course
1. If upon the filing of the comment or such
other pleadings as the court may allow or
require, or
2. After the expiration of the period for the
filing thereof without such comment or
pleading having been submitted,
Page 132 of 525
REMEDIAL LAW
the CA finds prima facie that the lower court
has committed an error of fact or law that
will warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition. [Sec. 6, Rule 42]
Whenever the CA deems it necessary, it may
order the COC of the RTC to elevate the
original record of the case including the oral
and documentary evidence within 15 days from
notice. [Sec. 7, Rule 42]
Submission for decision
1. If the petition is given due course, the CA
may
a. set the case for oral argument or
b. require the parties to submit
memoranda within a period of 15 days
from notice.
2. The case shall be deemed submitted for
decision upon the filing of the last pleading
or memorandum required by these Rules
or by the court itself.
[Sec. 9, Rule 42]
RULE 45
Appeal by certiorari from the RTC to the SC
via Rule 45
RTC must have rendered judgment in the
exercise of its original jurisdiction. [1
Regalado 609, 2010 Ed.]
If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law are
raised. [1 Regalado 609, 2010 Ed.]
Note: A question of law exists when there is a
doubt/controversy as to what the law is on a
certain state of facts. There is a question of fact
when the doubt/ difference arises as to the
truth/ falsehood of facts. [Ramos v. Pepsi, G.R.
No. L-22533 (1967)] If the test is whether the
appellate court can determine the issue
raised without reviewing or evaluating the
evidence, it is a question of law. The question
must not involve the examination of the
probative value of the evidence presented.
[Vda. De Arroyo v. El Beaterio, G.R. No. L-
22005 (1968)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Grave abuse of discretion is not an May be directed

allowable ground under Rule 45. [Martires v. against an
CA, G.R. No. 78036-37 (1990)] interlocutory order
Involves the review of the court prior to
x. Appeal from Judgments or Final of the judgment, appeal from the
Orders of The Court of Appeals
award or final order judgment or where
on the merits there is no appeal or
Any alleged errors committed in the exercise
of its jurisdiction will amount to nothing more any other plain,
than errors of judgment which are reviewable speedy or adequate
by timely appeal and not by special civil action remedy
of certiorari. [Chuidian v. Sandiganbayan (Fifth May be filed not later
Division), G.R. No. 139941 (2001)]] than 60 days from
Must be made within
notice of the
As provided in Rule 45, decisions, final the reglementary
judgment, order or
orders or resolutions of the CA in any case, period for appeal
resolution sought to
i.e., regardless of the nature of the action or
be assailed
proceedings involved, may be appealed to the
SC by filing a petition for review, which would Unless a writ of
be but a continuation of the appellate process preliminary
over the original case. [Fortune Guarantee and Stays the judgment, injunction or a TRO
Insurance Corporation v. CA, G.R. No. 110701 award or order shall have been
(2002)] appealed from issued, does not
stay the challenged
Certiorari as mode of appeal and as special proceeding
civil action The parties are the
Appeal by
Certiorari as SCA aggrieved party
certiorari Petitioner and
[Rule 65] against the lower
[Rule 45] respondent are the
court or quasi-
Writ of certiorari original parties to
judicial agency and
issues for the the action, and the
the prevailing
correction of errors lower court or quasi-
parties, who thereby
Brings up for review, of jurisdiction only judicial agency is not
respectively become
errors of judgment or grave abuse of to be impleaded
the petitioner and
committed by the discretion amounting respondents
court. to lack or excess of
MR is a condition
jurisdiction. [Silverio precedent [Villa Rey
v. CA, G.R.No. L- Prior filing of a MR is
Transit v. Bello, G.R.
39861 (1986)] not required [Sec.
No. L-18957 (1963)],
Petition raises the 1]
subject to certain
issue as to whether exceptions.
Based on questions
the lower court acted
of law which the Appellate court is in Higher court
without or in
appellant desires the the exercise of its exercises original
excess of appellate jurisdiction under
appellant court to
jurisdiction or with jurisdiction and its power of control
resolve
grave abuse of
power of review and supervision
discretion [Regalado 543-544, over the proceedings
1977 Ed.] of lower courts

Page 133 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Regalado 543-544, Questions of law Questions of fact

1977 Ed.] Doubt as to the truth
Doubt as to what the or falsehood of facts,
law is on certain or as to probative
[2 Herrera 643-645, 2000 Ed.]
facts. value of the
evidence presented.
Procedure [Rule 45]
If the appellate court
File a verified petition for review on certiorari,
can determine the The determination
which may include an application for a writ of
preliminary injunction or other provisional issue without involves evaluation
remedies. [Sec. 1] reviewing or or review of
evaluating the evidence.
Proof of service of a copy thereof on the
evidence.
lower court concerned and on the adverse
party shall be submitted together with the Query involves the
petition. [Sec. 3] calibration of the
↓ whole evidence
Pay the corresponding docket and other considering mainly
lawful fees to the COC of the SC and deposit the credibility of
Can involve
the amount of ₱500.00 for costs at the time witnesses,
questions of
of the filing of the petition. [Sec. 3] existence, and
interpretation of law
↓ relevancy of specific
with respect to a
SC may dismiss or deny the petition [Sec. 5], surrounding
certain set of facts.
or give due course to it. [Sec. 8] circumstances and
↓ relation to each
If the petition is given due course, the SC other and the whole
may require the elevation of the complete probabilities of the
record of the case or specified parts thereof situation.
within 15 days from notice. [Sec. 8] [1 Regalado 609, 2010 Ed. citing Bernardo v.
CA, G.R. No. 101680 (1992), Pilar
Propriety as a mode of appeal Development Corp. v. IAC, G.R. No. 72283
A party desiring to appeal by certiorari from a (1986); Vda. de Arroyo v. El Beaterio del
judgment or final order or resolution of the Santissimo Rosario de Molo, G.R. No. L-22005
CA, the Sandiganbayan, the RTC or other (1968)]
courts whenever authorized by law, may file
with the SC a verified petition for review on Conclusiveness of findings of fact
certiorari. [Sec. 1, Rule 45] General rule: The SC is not a trier of facts,
and is not to review or calibrate the evidence
Only questions of law are allowed. on record. Moreover, findings of facts of trial
The petition shall raise only questions of law. court, as affirmed on appeal by the CA, are
[Sec. 1, Rule 45] conclusive on the court. [Boston Bank of the
Philippines v. Manalo, G.R. No. 158149 (2006)]
Whether an appeal involves only questions of
law or both questions of law and fact is best left Exceptions:
to the determination of an appellate court and CA’s findings of fact may be reviewed by
not by the court which rendered the decision the SC on appeal by certiorari when:
appealed from. [PNB v. Romillo, etc., et al., 1. Conclusion is a finding grounded entirely
G.R. No. L-70681 (1985)] on speculations, surmises or conjectures
[Joaquin v. Navarro, G.R. No. L-5426
(1953)]

Page 134 of 525

U.P. LAW BOC CIVIL PROCEDURE
2. Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok, G.R.
No. 48403 (1942)]
3. There is grave abuse of discretion in the
appreciation of facts [Buyco v. People,
G.R. No. L-6327 (1954)]
4. Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing, G.R. No. L-
4875 (1953)]
5. The CA’s findings of fact are conflicting
[Casica v. Villaseca, G.R. No. L-9590
(1957)]
6. The CA, in making its findings, went
beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee [Nakpil & Sons v.
CA, G.R. No. L-47851 (1986)]
7. The CA manifestly overlooked certain
relevant facts not disputed by the parties
and which, if properly considered, would
justify a different conclusion [Abellana v.
Dosdos, G.R. No. L-19498 (1965)]
8. The CA’s findings of fact are contrary to
those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the
respondent, or where the findings of fact of
the CA are premised on absence of
evidence but are contradicted by the
evidence of record. [Manlapaz v. CA, G.R.
No. L-56589 (1987)]
Period of appeal
Within 15 days from notice of the
1. Judgment or final order or resolution
appealed from, or
2. Denial of the petitioner’s MNT or MR filed
in due time after notice of the judgment.
[Sec. 2, Rule 45]
Note: The Neypes doctrine which gives a fresh
15-day period to the appellant is also
applicable to Rule 45 petitions. [Neypes v. CA,
G.R. No. 141524 (2005)
Extension of period
On motion duly filed and served, with full
payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
Page 135 of 525
REMEDIAL LAW
justifiable reasons grant an extension of 30
days only within which to file the petition. [Sec.
2, Rule 45]
Form and contents of petition
1. In 7 legible copies, with the original copy
intended for the court being indicated as
such by the petitioner
a. Under Sec. 5(a) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and four
copies, unless the case is referred to
the SC en banc, in which event, the
parties shall file ten additional copies
and simultaneously soft copies of the
same and their annexes (the latter in
PDF format) either by email to the SC’s
e-mail address or by compact disc
(CD)
2. Full names of the parties to the case,
without impleading the lower courts or
judges thereof either as petitioners or
respondents;
3. Specific material dates showing that it was
filed on time;
4. A concise statement of the
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law, or
both, allegedly committed by the rtc,
and
d. Reasons or arguments relied upon for
the allowance of the appeal
5. Clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
COC of the RTC,
6. Requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support the
allegations of the petition
7. Certificate of non-forum shopping
[Sec. 2, Rule 45]
Grounds for denial of petition
The SC may dismiss the petition on motion or
motu proprio upon showing:
a. Failure of petitioner to comply with
1. Payment of docket or other lawful fees
2. Deposit for costs
3. Proof of Service; and
U.P. LAW BOC CIVIL PROCEDURE
4. Contents of and documents which
would accompany the petition
b. Appeal is without merit
c. It is prosecuted manifestly for delay
d. That the questions raised are so
unsubstantial as to require consideration.
[Sec. 5, Rule 45]
Notes:
Although the lower court is not a party to the
case, failure to present proof of service of
copies to the lower court and to the adverse
party shall result in the outright dismissal of the
appeal. This is because the service is for the
purpose of giving the lower court notice that its
judgment should not be entered since it is not
yet executory due to the pending petition. [1
Regalado 615-616, 2010 Ed.]
Review is discretionary
A review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important
reasons therefore.
The following are examples that may be
considered by the court:
1. When the court a quo has decided a
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable decisions of the SC, or
2. When the court a quo has so far departed
from the accepted and usual course of
judicial proceedings, or so far sanctioned
such departure by a lower court, as to call
for an exercise of the power of supervision
[Sec. 6, Rule 45]
Elevation of records
If the petition is given due course, the SC may
require the elevation of the complete record of
the case or specified parts thereof within 15
days from notice. [Sec. 8, Rule 45]
xi. Appeal from Judgments or Final
Orders of The Sandiganbayan
Mode of review
Decisions and final orders of the
Sandiganbayan shall be appealable to the SC
Page 136 of 525
REMEDIAL LAW
by petition for review on certiorari raising
pure questions of law in accordance with Rule
45 of the ROC. [Sec. 7, P.D. 1606, as
amended; and Sec. 1, Rule 45]
xii. Appeal from Judgments or Final
Orders of The Court of Tax
Appeals
Mode of review
The CTA is no longer a quasi-judicial
agency under R.A. 9282, as of April 7, 2004.
The CTA is no longer covered by Rule 43.
A party adversely affected by a decision or
ruling of the CTA en banc may file with the SC
a verified petition for review on certiorari
under Rule 45. [Sec. 11, R.A. 9282 and A.M.
No. 07-7-12-SC]
xiii. Review of Final Judgments or
Final Orders of The Commission
on Audit
Mode of review
A judgment or final order or resolution of the
Commission on Audit (COA) may be brought
by the aggrieved party to the SC on certiorari
under Rule 65, except as hereinafter provided.
[Sec. 2, Rule 64]
Filing of the petition
1. The petition shall be filed within 30 days
from notice of the judgment or final order or
resolution sought to be reviewed.
2. The filing of a MNT or MR of said judgment
or final order or resolution, if allowed under
the procedural rules of the Commission
concerned, shall interrupt the period
herein fixed.
3. If the motion is denied, the aggrieved party
may file the petition within the remaining
period, but which shall not be less than 5
days in any event, reckoned from notice of
denial.
[Sec. 3, Rule 45]
Effect of filing
The filing of a petition for certiorari shall not
stay the execution of the judgment or final
order or resolution sought to be reviewed,
U.P. LAW BOC CIVIL PROCEDURE
unless the SC shall direct otherwise upon such
terms as it may deem just. [Sec. 8, Rule 64]
When the decision, order or resolution
adversely affects the interest of any
government agency, the appeal may be taken
by the proper head of that agency. [Sec. 1,
Rule XII, 2009 Revised Rules of Procedure of
the Commission on Audit]
xiv. Review of Final Judgments or
Final Orders of The Commission
on Elections
Mode of review
A judgment or final order or resolution of the
Commission on Elections (COMELEC) may be
brought by the aggrieved party to the SC on
certiorari under Rule 65, except as
hereinafter provided. [Sec. 2, Rule 64]
Unless otherwise provided by law, or by any
specific provisions in the COMELEC Rules of
Procedure, any decision, order or ruling of the
Commission may be brought to the SC on
certiorari by the aggrieved party within 30
days from its promulgation. [Sec. 1, Rule 37,
COMELEC Rules of Procedure]
xv. Review of Final Judgments or
Final Orders of The Civil Service
Commission
See Rule 43 on Review of QJAs below.
xvi. Review of Final Judgments or
Final Orders of The Ombudsman
Unappealable decisions
The following decisions are unappealable:
1. In administrative cases where respondent
is absolved of the charge
2. In case of conviction, where penalty
imposed is public censure or reprimand, or
suspension of not more than one month or
a fine equivalent to one month salary
[Sec. 7, Rule III, Admin Order No. 7]
Jurisdiction of the CA
Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary
Page 137 of 525
REMEDIAL LAW
cases should be taken to the CA under the
provisions of Rule 43. [Fabian v. Desierto,
G.R. No. 129742 (1998)]
Note: The CA has jurisdiction over orders,
directives and decisions of the Office of the
Ombudsman in administrative disciplinary
cases only. It cannot review the orders,
directives or decisions of the Office of the
Ombudsman in criminal or non-administrative
cases [Duyon v. The Former Special Fourth
Division of the Court Of Appeals, G.R. No.
172218 (2014)]
Jurisdiction of the SC
Decisions of the Ombudsman in criminal cases
are unappealable. However, where the findings
of the Ombudsman on the existence of
probable cause (in criminal cases) are tainted
with grave abuse of discretion amounting to
lack or excess of jurisdiction, the aggrieved
party may file before the SC a petition for
certiorari under Rule 65. [Duyon v. The
Former Special Fourth Division of the Court Of
Appeals, G.R. No. 172218 (2014)]
xvii. Review of Final Judgments or
Final Orders of The National Labor
Relations Commission
Appeal from the NLRC
Appeal from quasi-judicial agencies under
Rule 43 does not apply to judgments or final
orders issued under the Labor Code. [Sec. 2,
Rule 43]
The remedy of a party aggrieved by the
decision of the NLRC is to file a MR and, if
denied, file a special civil action for certiorari
under Rule 65 within 60 days from notice of
the decision. In observance of the doctrine of
hierarchy of courts, this should be filed with the
CA. [St. Martin Funeral Homes v. NLRC, G.R.
No. 130866 (1998)]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
the SC [Dongon v. Rapid Movers and
Forwarders, G.R. No. 163431 (2013)]
U.P. LAW BOC CIVIL PROCEDURE
a. Review of Final Judgments or Final
Orders of Quasi-judicial Agencies
Scope
Appeals from awards, judgments, final orders,
or resolutions of or authorized by any quasi-
judicial agency (QJA) in the exercise of its
quasi-judicial functions. [Sec. 1, Rule 43]
A quasi-judicial agency or body is an organ
of government other than a court and other
than a legislature, which affects the rights of
private parties though either adjudication or
rule-making. [United Coconut Planters Bank v.
E. Ganzon, Inc., G.R. No. 168859 (2009)]
Quasi-judicial agencies covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents, Trademarks and
Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA
6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration
Commission, and
19. Voluntary arbitrators authorized by law
Where to appeal
Appeal may be taken to the CA on questions of
fact, of law, or mixed questions of fact and law.
[Sec. 3, Rule 43]
Period to appeal
Within 15 days from
1. Notice of award, judgment, final order, or
resolution, or
2. Date of its last publication, if publication is
required by law for its effectivity; or
Page 138 of 525
REMEDIAL LAW
3. Denial of petitioner’s MNT or MR duly filed
in accordance with the governing law of the
court or agency a quo.
[Sec. 4, Rule 43]
Extension of period
Upon proper motion and the payment of the full
amount of the docket fee before the expiration
of the reglementary period, the CA may grant
an additional period of 15 days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed 15
days. [Sec. 4, Rule 43]
How taken
1. File a verified petition for review in 7 legible
copies with the CA
a. The original copy of the petition
intended for the CA shall be indicated
as such by the petitioner.
b. Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and 2 copies
with their annexes with the CA
2. Proof of service of a copy thereof on the
adverse party and on the court or agency a
quo.
3. Upon the filing of the petition, pay to the
COC of the CA the docketing and other
lawful fees and deposit PHP 500.00 for
costs.
a. Exemption from payment of docketing
and other lawful fees and the deposit
for costs may be granted by the CA
upon a verified motion setting forth
valid grounds therefor.
b. If the CA denies the motion, the
petitioner shall pay the docketing and
other lawful fees and deposit for costs
within 15 days from notice of the denial.
[Sec. 5, Rule 43]
Contents of petition
1. Full names of parties to the case, without
impleading the court or agencies
2. Concise statement of facts and issues
involved, and grounds relied upon for
review
U.P. LAW BOC CIVIL PROCEDURE
2. Inference made is manifestly mistaken,
absurd or impossible [Luna v. Linatok, G.R.
No. 48403 (1942)]
3. There is grave abuse of discretion in the
appreciation of facts [Buyco v. People,
G.R. No. L-6327 (1954)]
4. Judgment is based on a misapprehension
of facts [De la Cruz v. Sosing, G.R. No. L-
4875 (1953)]
5. The CA’s findings of fact are conflicting
[Casica v. Villaseca, G.R. No. L-9590
(1957)]
6. The CA, in making its findings, went
beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee [Nakpil & Sons v.
CA, G.R. No. L-47851 (1986)]
7. The CA manifestly overlooked certain
relevant facts not disputed by the parties
and which, if properly considered, would
justify a different conclusion [Abellana v.
Dosdos, G.R. No. L-19498 (1965)]
8. The CA’s findings of fact are contrary to
those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the
respondent, or where the findings of fact of
the CA are premised on absence of
evidence but are contradicted by the
evidence of record. [Manlapaz v. CA, G.R.
No. L-56589 (1987)]
Period of appeal
Within 15 days from notice of the
1. Judgment or final order or resolution
appealed from, or
2. Denial of the petitioner’s MNT or MR filed
in due time after notice of the judgment.
[Sec. 2, Rule 45]
Note: The Neypes doctrine which gives a fresh
15-day period to the appellant is also
applicable to Rule 45 petitions. [Neypes v. CA,
G.R. No. 141524 (2005)
Extension of period
On motion duly filed and served, with full
payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
Page 135 of 525
REMEDIAL LAW
justifiable reasons grant an extension of 30
days only within which to file the petition. [Sec.
2, Rule 45]
Form and contents of petition
1. In 7 legible copies, with the original copy
intended for the court being indicated as
such by the petitioner
a. Under Sec. 5(a) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and four
copies, unless the case is referred to
the SC en banc, in which event, the
parties shall file ten additional copies
and simultaneously soft copies of the
same and their annexes (the latter in
PDF format) either by email to the SC’s
e-mail address or by compact disc
(CD)
2. Full names of the parties to the case,
without impleading the lower courts or
judges thereof either as petitioners or
respondents;
3. Specific material dates showing that it was
filed on time;
4. A concise statement of the
a. Matters involved
b. Issues raised
c. Specification of errors of fact or law, or
both, allegedly committed by the rtc,
and
d. Reasons or arguments relied upon for
the allowance of the appeal
5. Clearly legible duplicate originals or true
copies of the judgments or final orders of
both lower courts, certified correct by the
COC of the RTC,
6. Requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support the
allegations of the petition
7. Certificate of non-forum shopping
[Sec. 2, Rule 45]
Grounds for denial of petition
The SC may dismiss the petition on motion or
motu proprio upon showing:
a. Failure of petitioner to comply with
1. Payment of docket or other lawful fees
2. Deposit for costs
3. Proof of Service; and
U.P. LAW BOC CIVIL PROCEDURE
4. Contents of and documents which
would accompany the petition
b. Appeal is without merit
c. It is prosecuted manifestly for delay
d. That the questions raised are so
unsubstantial as to require consideration.
[Sec. 5, Rule 45]
Notes:
Although the lower court is not a party to the
case, failure to present proof of service of
copies to the lower court and to the adverse
party shall result in the outright dismissal of the
appeal. This is because the service is for the
purpose of giving the lower court notice that its
judgment should not be entered since it is not
yet executory due to the pending petition. [1
Regalado 615-616, 2010 Ed.]
Review is discretionary
A review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important
reasons therefore.
The following are examples that may be
considered by the court:
1. When the court a quo has decided a
question of substance, not theretofore
determined by the SC, or has decided it in
a way probably not in accord with law or
with the applicable decisions of the SC, or
2. When the court a quo has so far departed
from the accepted and usual course of
judicial proceedings, or so far sanctioned
such departure by a lower court, as to call
for an exercise of the power of supervision
[Sec. 6, Rule 45]
Elevation of records
If the petition is given due course, the SC may
require the elevation of the complete record of
the case or specified parts thereof within 15
days from notice. [Sec. 8, Rule 45]
xi. Appeal from Judgments or Final
Orders of The Sandiganbayan
Mode of review
Decisions and final orders of the
Sandiganbayan shall be appealable to the SC
Page 136 of 525
REMEDIAL LAW
by petition for review on certiorari raising
pure questions of law in accordance with Rule
45 of the ROC. [Sec. 7, P.D. 1606, as
amended; and Sec. 1, Rule 45]
xii. Appeal from Judgments or Final
Orders of The Court of Tax
Appeals
Mode of review
The CTA is no longer a quasi-judicial
agency under R.A. 9282, as of April 7, 2004.
The CTA is no longer covered by Rule 43.
A party adversely affected by a decision or
ruling of the CTA en banc may file with the SC
a verified petition for review on certiorari
under Rule 45. [Sec. 11, R.A. 9282 and A.M.
No. 07-7-12-SC]
xiii. Review of Final Judgments or
Final Orders of The Commission
on Audit
Mode of review
A judgment or final order or resolution of the
Commission on Audit (COA) may be brought
by the aggrieved party to the SC on certiorari
under Rule 65, except as hereinafter provided.
[Sec. 2, Rule 64]
Filing of the petition
1. The petition shall be filed within 30 days
from notice of the judgment or final order or
resolution sought to be reviewed.
2. The filing of a MNT or MR of said judgment
or final order or resolution, if allowed under
the procedural rules of the Commission
concerned, shall interrupt the period
herein fixed.
3. If the motion is denied, the aggrieved party
may file the petition within the remaining
period, but which shall not be less than 5
days in any event, reckoned from notice of
denial.
[Sec. 3, Rule 45]
Effect of filing
The filing of a petition for certiorari shall not
stay the execution of the judgment or final
order or resolution sought to be reviewed,
U.P. LAW BOC CIVIL PROCEDURE
unless the SC shall direct otherwise upon such
terms as it may deem just. [Sec. 8, Rule 64]
When the decision, order or resolution
adversely affects the interest of any
government agency, the appeal may be taken
by the proper head of that agency. [Sec. 1,
Rule XII, 2009 Revised Rules of Procedure of
the Commission on Audit]
xiv. Review of Final Judgments or
Final Orders of The Commission
on Elections
Mode of review
A judgment or final order or resolution of the
Commission on Elections (COMELEC) may be
brought by the aggrieved party to the SC on
certiorari under Rule 65, except as
hereinafter provided. [Sec. 2, Rule 64]
Unless otherwise provided by law, or by any
specific provisions in the COMELEC Rules of
Procedure, any decision, order or ruling of the
Commission may be brought to the SC on
certiorari by the aggrieved party within 30
days from its promulgation. [Sec. 1, Rule 37,
COMELEC Rules of Procedure]
xv. Review of Final Judgments or
Final Orders of The Civil Service
Commission
See Rule 43 on Review of QJAs below.
xvi. Review of Final Judgments or
Final Orders of The Ombudsman
Unappealable decisions
The following decisions are unappealable:
1. In administrative cases where respondent
is absolved of the charge
2. In case of conviction, where penalty
imposed is public censure or reprimand, or
suspension of not more than one month or
a fine equivalent to one month salary
[Sec. 7, Rule III, Admin Order No. 7]
Jurisdiction of the CA
Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary
Page 137 of 525
REMEDIAL LAW
cases should be taken to the CA under the
provisions of Rule 43. [Fabian v. Desierto,
G.R. No. 129742 (1998)]
Note: The CA has jurisdiction over orders,
directives and decisions of the Office of the
Ombudsman in administrative disciplinary
cases only. It cannot review the orders,
directives or decisions of the Office of the
Ombudsman in criminal or non-administrative
cases [Duyon v. The Former Special Fourth
Division of the Court Of Appeals, G.R. No.
172218 (2014)]
Jurisdiction of the SC
Decisions of the Ombudsman in criminal cases
are unappealable. However, where the findings
of the Ombudsman on the existence of
probable cause (in criminal cases) are tainted
with grave abuse of discretion amounting to
lack or excess of jurisdiction, the aggrieved
party may file before the SC a petition for
certiorari under Rule 65. [Duyon v. The
Former Special Fourth Division of the Court Of
Appeals, G.R. No. 172218 (2014)]
xvii. Review of Final Judgments or
Final Orders of The National Labor
Relations Commission
Appeal from the NLRC
Appeal from quasi-judicial agencies under
Rule 43 does not apply to judgments or final
orders issued under the Labor Code. [Sec. 2,
Rule 43]
The remedy of a party aggrieved by the
decision of the NLRC is to file a MR and, if
denied, file a special civil action for certiorari
under Rule 65 within 60 days from notice of
the decision. In observance of the doctrine of
hierarchy of courts, this should be filed with the
CA. [St. Martin Funeral Homes v. NLRC, G.R.
No. 130866 (1998)]
From the CA, the remedy of the aggrieved
party is a petition for review by certiorari to
the SC [Dongon v. Rapid Movers and
Forwarders, G.R. No. 163431 (2013)]
U.P. LAW BOC CIVIL PROCEDURE
a. Review of Final Judgments or Final
Orders of Quasi-judicial Agencies
Scope
Appeals from awards, judgments, final orders,
or resolutions of or authorized by any quasi-
judicial agency (QJA) in the exercise of its
quasi-judicial functions. [Sec. 1, Rule 43]
A quasi-judicial agency or body is an organ
of government other than a court and other
than a legislature, which affects the rights of
private parties though either adjudication or
rule-making. [United Coconut Planters Bank v.
E. Ganzon, Inc., G.R. No. 168859 (2009)]
Quasi-judicial agencies covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents, Trademarks and
Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA
6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration
Commission, and
19. Voluntary arbitrators authorized by law
Where to appeal
Appeal may be taken to the CA on questions of
fact, of law, or mixed questions of fact and law.
[Sec. 3, Rule 43]
Period to appeal
Within 15 days from
1. Notice of award, judgment, final order, or
resolution, or
2. Date of its last publication, if publication is
required by law for its effectivity; or
Page 138 of 525
REMEDIAL LAW
3. Denial of petitioner’s MNT or MR duly filed
in accordance with the governing law of the
court or agency a quo.
[Sec. 4, Rule 43]
Extension of period
Upon proper motion and the payment of the full
amount of the docket fee before the expiration
of the reglementary period, the CA may grant
an additional period of 15 days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed 15
days. [Sec. 4, Rule 43]
How taken
1. File a verified petition for review in 7 legible
copies with the CA
a. The original copy of the petition
intended for the CA shall be indicated
as such by the petitioner.
b. Under Sec. 5(b) of the Efficient Use of
Paper Rule [A.M. 11-9-4-SC], file one
original (properly marked) and 2 copies
with their annexes with the CA
2. Proof of service of a copy thereof on the
adverse party and on the court or agency a
quo.
3. Upon the filing of the petition, pay to the
COC of the CA the docketing and other
lawful fees and deposit PHP 500.00 for
costs.
a. Exemption from payment of docketing
and other lawful fees and the deposit
for costs may be granted by the CA
upon a verified motion setting forth
valid grounds therefor.
b. If the CA denies the motion, the
petitioner shall pay the docketing and
other lawful fees and deposit for costs
within 15 days from notice of the denial.
[Sec. 5, Rule 43]
Contents of petition
1. Full names of parties to the case, without
impleading the court or agencies
2. Concise statement of facts and issues
involved, and grounds relied upon for
review
U.P. LAW BOC CIVIL PROCEDURE
order of execution [Cayetano v. Ceguerra, G.R.
No. L-18831 (1965)] or an order dismissing an
appeal. [Medran v. CA, G.R. No. L-1350
(1949)]
A party who has filed a timely MNT or MR
can no longer file a petition for relief from
judgment after his motion has been denied.
[Francisco v. Puno, G.R. No. L-55694 (1981)]
A petition for relief is not an available remedy
in the SC or the CA. [Purcon vs MRM
Philippines Inc., G.R. No. 182718 (2008)]
i. Grounds for Availing of the
Remedy
1. When judgment or final order is entered, or
any other proceeding is thereafter taken
against petitioner through FAME
• Petition is filed in the same court, in the
same case with prayer for the
judgment, order, proceeding to be set
aside.
2. When petitioner has been prevented from
taking an appeal by FAME
• Petition is filed in the same court, in the
same case with prayer for the appeal to
be given due course.
[Secs. 1-2, Rule 38]
Note: “Extrinsic fraud” - fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or
defense. Such fraud concerns not the
judgment itself but the manner in which it was
obtained. [AFP Mutual Benefit Association, Inc.
v. RTC-Marikina City, G.R. No. 183906 (2011)]
ii. Time to File Petition
1. Within 60 days after the petitioner learns
of the judgment, final order, or other
proceeding to be set aside, and
2. Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken.
[Sec. 3, Rule 38]
Page 143 of 525
REMEDIAL LAW
Note: These two periods must concur, are
not extendible and are never interrupted.
Strict compliance with these periods stems
from the equitable character and nature of the
petition for relief. Such petition is actually the
“last chance” given by law to litigants to
question a final judgment or order. Failure to
avail of such chance, within the grace period
fixed by the Rules, is fatal. [Quelnan v. VHF
Phils, G.R. No. 138500 (2005)]
iii. Contents of Petition
The petition must be:
1. Verified;
2. Accompanied by an affidavit showing the
FAME relied upon; and
3. The facts constituting the petitioner’s good
and substantial cause of action or defense,
as the case may be.
[Sec. 3, Rule 38]
Note: A petition for relief from judgment may
only be availed of by a party to the proceeding.
[Alaban vs CA, 470 SCRA 697, 705]
The absence of an affidavit of merits is a
fatal defect and warrants denial of the petition.
[Fernandez v. Tan Tiong Tick, G.R. No. 15877
(1961)] However, it is not a fatal defect so long
as the facts required to be set out also appear
in the verified petition. [Fabar Inc. v. Rodelas,
G.R. No. L-46394 (1977)]
When affidavit of merit is not necessary:
1. When there is lack of jurisdiction over the
defendant;
2. When there is lack of jurisdiction over the
subject matter;
3. When judgment was taken by default;
4. When judgment was entered by mistake or
was obtained by fraud; or
5. Other similar cases.
(1 Regalado 434-435, 2010 Ed.]
Order to file answer
If the petition is sufficient in form and
substance to justify relief, the court in which it
is filed, shall issue an order requiring the
adverse parties to answer the same within 15
days from the receipt thereof.
U.P. LAW BOC CIVIL PROCEDURE
• The order shall be served in such manner
as the court may direct, together with
copies of the petition and the
accompanying affidavits.
[Sec. 4, Rule 38]
Note: Failure to answer the petition for relief
does not constitute default. Even without it, the
court will still have to hear the petition on the
merits. [1 Regalado 447. 2010 Ed.]
Proceedings after answer is filed
After the filing of the answer or the expiration of
the period therefore, the court shall hear the
petition
a. If the allegations are not true, the petition
shall be dismissed
b. If the allegations are true, it shall set aside
the judgment or final order or other
proceeding complained of upon such terms
as may be just and the case shall stand as
if such judgment, final order or other
proceeding had never been rendered,
issued or taken. The court shall then
proceed to hear and determine the case as
if a timely motion for a new trial or
reconsideration had been granted by it.
[Sec. 3, Rule 38]
Note: Where the denial of an appeal is set
aside, the lower court shall be required to give
due course to the appeal and to elevate the
record of the appealed case as if a timely and
proper appeal had been made. [Sec. 7, Rule
38]
Remedy for denial of petition for relief
Appeal from an order denying a petition for
relief is no longer available under the present
rules. [1 Regalado 437, 2010 Ed. citing Sec. 1,
Rule 41]
Note: An order granting a petition for relief is
interlocutory and non-appealable [1 Regalado
447, 2010 Ed.]
The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper
[1 Regalado 437, 2010 Ed.]
Page 144 of 525
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d. Annulment of Judgments or
Final Orders and Resolutions
Nature
An action for annulment of judgment is a
remedy in equity exceptional in character
availed of only when other remedies are
wanting. [Spouses Teano vs The Municipality
of Navotas, G.R. No. 205814 (2016)]
It is a remedy independent of the case where
the judgment sought to be annulled is
rendered. It is not the continuation of the same
case, like in the reliefs of MR, appeal, or
petition for relief. [CIR vs Kepco Ilijan Corp.,
G.R. No. 199422 (2016)]
Such remedy is considered an exception to the
final judgment rule or the doctrine of
immutability of judgments. [Diona v. Balangue,
688 SCRA 22, 34, (2013)]
Purpose
The purpose of such action is to have the final
and executory judgment set aside so that there
will be a renewal of litigation. [Spouses Teano
v. The Municipality of Navotas, G.R. No.
205814 (2016)]
When proper
An action for annulment of judgment may be
availed of even if the judgment to be annulled
has already been fully executed or
implemented. [Islamic Da’wah Council of the
Philippines. v. CA, G.R. No. 80892 (1989)]
When not available
The remedy may not be invoked:
a. Where the party has availed himself of the
remedy of new trial, appeal, petition for
review, or other appropriate remedy and
lost, or
b. Where he has failed to avail himself of
those remedies through his own fault or
negligence.
[Republic v. ‘G’ Holdings, Inc., G.R. No.
141241 (2005)]
Note: It is a condition sine qua non that one
must have failed to avail of those remedies,
through no fault attributable to him. Otherwise,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

he would benefit from his own inaction or prevented from fully exhibiting his side by
negligence. [Republic v. De Castro, G.R. No. fraud or deception practiced on him by his
189724 (2011)] opponents like:
a. Keeping him away from court,
Where filed b. Giving him false promise of a compromise,
Judgment, Final Judgment, Final or
Order or Order or c. Where an attorney fraudulently or without
Resolution of the Resolution of the authority connives at his defeat.
RTC MTC, etc. [Cagayan Economic Zone Authority vs
Meridien Vista Gaming Corp, G.R. No. 194962
Filed with the CA Filed with the RTC
(2016)]
[Sec. 1, Rule 47] [Sec. 19(6), BP 129]
CA has exclusive Note: Use of forged instruments, perjured
RTC as a court of
and original testimonies, or other manufactured evidence is
general jurisdiction
jurisdiction over said not extrinsic fraud since such evidence does
under Sec. 19(6), BP
action under Sec. not preclude a party’s participation in trial.
129
9(2) of BP 129 [Bobis v. CA, G.R. No. 113796 (2000), and
The CA may dismiss Conde v. IAC, G.R. No. 70443 (1986)]
the case outright; it The RTC has no
has the discretion on such discretion, it is Lack of jurisdiction
whether or not to required to consider Either lack of jurisdiction over the person of the
entertain the it as an ordinary civil defending party, or over the subject matter of
the claim. [1 Regalado 630, 2010 Ed.]
petition. [Sec. 5, action.
Rule 47]
Petitioner must show absolute lack of
jurisdiction and not mere abuse of judicial
Who can file discretion; a claim of grave abuse of discretion
A person who is not a party to the judgment will support a petition for certiorari but not an
may sue for its annulment provided that he can action for annulment of judgment. [1 Riano
prove: 633, 2011 Ed.]
a. The judgment was obtained through fraud
or collusion, and Only evidence found in the record can justify
b. He would be adversely affected thereby. nullity. [Arcelona v. CA, G.R. No. 102900
[Alaban v. CA, G.R. No. 156021 (2005)] (1997)]
i. Grounds for Annulment Form and contents of petition
1. Verified petition, alleging therein:
The annulment may be based only on the a. With particularity the facts and the law
grounds of: relied upon
a. Extrinsic fraud, and b. Petitioner’s good and substantial cause
• Note: Such shall not be a valid ground of action or defense
if it was availed of, or could have been 2. In 7 clearly legible copies, together with
availed of, in a MNT or petition for sufficient copies corresponding to the
relief. number of respondents
b. Lack of jurisdiction. 3. Certified true copy of the judgment or final
[Sec. 2, Rule 47] order or resolution shall be attached to the
original copy of the petition intended for the
Extrinsic fraud court and indicated as such by the
It refers to any fraudulent act of the prevailing petitioner
party in litigation committed outside the trial
of the case where the defeated party

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

4. Affidavits of witnesses or documents
supporting the cause of action or defense;
and
5. Certificate of non-forum shopping.
[Sec. 3, Rule 47]
ii. Period to File Action
being refiled in the proper court. [Sec. 7, Rule
47]
Based on extrinsic fraud
The court may on motion order the trial court
to try the case as if a timely motion for new
trial had been granted therein. [Sec. 7, Rule 47]

Extrinsic Lack of Difference: When it is based on extrinsic fraud,

fraud jurisdiction
Before it is
Period for 4 years from barred by
filing discovery laches or
estoppel
[Sec. 3, Rule 47]
Note: There must be a manifest showing with
petition that it was filed within the 4-yr period.
[1 Regalado 532, 2010 Ed.]
Action of the court
1. Should the court find no substantial merit
in the petition, the same may be
dismissed outright with specific reasons for
such dismissal.
2. Should prima facie merit be found in the
petition, the same shall be given due
course and summons shall be served on
the respondent.
[Sec. 5, Rule 47]
Procedure
The procedure in ordinary civil cases shall
be observed. Should a trial be necessary, the
reception of the evidence may be referred to a
member of the court or a judge of a RTC. [Sec.
6, Rule 47]
Note: Prima facie determination is not available
in annulment of judgments or final orders of
MTCs before the RTC. [Sec. 10, Rule 47]
iii. Effects of Judgment of Annulment
Based on lack of jurisdiction
A judgment of annulment shall set aside the
questioned judgment or final order or
resolution and render the same null and void,
without prejudice to the original action
the original judgment was not tainted by
jurisdictional defects but by the deception
which then resulted in the prejudicial error [1
Regalado 635-636, 2010 Ed.]
Note: The judgment of annulment may include
the award of damages, attorney’s fees, and
other reliefs. [Sec. 9, Rule 47]
Effect on prescriptive period for refiling of
the original action
When suspended - from the filing of said
original action until the finality of the judgment
of annulment.
When not suspended - where the extrinsic
fraud is attributable to the plaintiff in the original
action.
[Sec. 8, Rule 47]
e. Collateral Attack of Judgments
Direct attack vs. Collateral attack
a. Direct attack - The object of an action is to
annul or set aside such judgment, or enjoin
its enforcement.
b. Collateral/Indirect attack - In an action to
obtain a different relief, an attack on the
judgment or proceeding is made as an
incident thereof. [Hortizuela v. Tagufa,
G.R. No. 205867 (2015)]
The validity of a judgment or order of the
court, which has become final and
executory, may be attacked in three ways:
a. By a direct action or proceeding to annul
the same
• To annul and enjoin enforcement of the
judgment, where the alleged defect is
not apparent on its face or from the
recitals contained in the judgment; See
Rule 47

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U.P. LAW BOC CIVIL PROCEDURE
b. By direct action, as certiorari, or by
collateral attack in case of apparent nullity
• The collateral attack must be against a
challenged judgment which is void
upon its face as where it is patent that
the court which rendered said
judgment has no jurisdiction or that the
nullity of the judgment is apparent from
its own recitals
c. By a Petition for Relief under Rule 38
• Must be taken in the same action or
proceeding in which the judgment or
order was entered.
[1 Regalado 454-456, 2010 Ed.]
Void judgment
1. Considered as no judgment at all.
2. Cannot be the source of any right nor the
creator of any obligation.
3. All acts performed pursuant to it and all
claims emanating from it have no legal
effect.
4. Can never become final and any writ of
execution based on it is void.
[Polystyrene Manufacturing v. Privatization
Management, G.R. No. 171336 (2007)]
Attacking a void judgment
1. It may be assailed any time, and
2. It may be done collaterally or in a direct
action unless barred by laches.
[Spouses Benatiro v. Heirs of Cuyos, G.R. No.
161220 (2008)]
Remedies
If the period for appeal has not yet lapsed:
1. New Trial and Reconsideration [Rule 37],
2. Appeal [Rules 40-45],
3. Petition for Relief [Rule 48], and
4. Other appropriate remedies such as
certiorari.
[1 Riano 60, 2011 Ed.]
If the appropriate remedies are no longer
available without the fault of the petitioner, he
may avail of a petition for Annulment of
Judgment [Rule 47]
[Mandy Commodities Co. Inc. v ICBC, G.R. No.
166734 (2009)]
Page 147 of 525
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Note: When all else fails, there is jurisprudence
to the effect that a patently void judgment may
be dealt with by a Main Action for Injunction.
[Barrameda v. Moir, G.R. No. L-7927 (1913)]
19. EXECUTION,
SATISFACTION, AND EFFECT
OF JUDGMENTS
Definition
Execution is a remedy afforded by law for the
enforcement of a judgment. It is a judicial writ
issued to an officer authorizing and requiring
him to execute the judgment of the court.
[Pamantasan ng Lungsod ng Maynila v. IAC,
G.R. No. L-65439 (1986), citing 2 Francisco,
592-593, 1966 Ed.]
Note: The prevailing party can secure certified
true copies of the judgment or final order of the
appellate court, the entry thereof, and submit it
to the court of origin to justify a motion for a writ
of execution even without waiting for receipt of
the records from the appellate court. [Circular
No. 24-94]
The appellate court can also direct the
issuance of the writ of execution upon motion
in the same while the records are still with the
appellate court, or even after remand to the
lower court. [1 Regalado 452, 2010 Ed.]
a. Difference Between Finality of
Judgment for Purposes of
Appeal and for Purposes of
Execution
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [2 Herrera 281, 2007
Ed.; 1 Regalado 450, 2010 Ed.]
Finality for purposes of appeal refers to the
distinction between “final judgments or orders”
and “interlocutory orders,” which cannot be
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

appealed according to Sec. 1(b), Rule 41 [1 After the lapse of the

Regalado 450, 2010 Ed.] reglementary period
During that period,
to appeal, the
A final judgment or order is one that finally the winning party
prevailing party is
disposes of a case, leaving nothing more to be cannot demand the
entitled to a writ of
done by the court in respect thereto. Examples execution of the
include: execution, and
judgment yet as a
a. An adjudication on the merits which, on the issuance thereof is a
right. [City of Manila
basis of the evidence presented at the trial, ministerial duty of the
v. CA, G.R. No.
declares categorically what the rights and court. [City of Manila
100626 (1991)]
obligations of the parties are and which v. CA, G.R. No.
party is in the right; or 100626 (1991)]
b. A judgment or order that dismisses an
action on the ground, for instance, of res b. When Execution Shall Issue
judicata or prescription.
[Heirs of Dimaampao v. Alug, G.R. No. 198223
General rule: Execution shall issue as a matter
(2015)]
of right, on motion, upon a judgment or order
that disposes of the action or proceeding
Finality for purposes of execution refers to
upon the expiration of the period to appeal
the judgment being “final and executory” upon
therefrom if no appeal has been duly perfected.
the lapse of the appeal period if no appeal is
[Sec. 1, Rule 39]
taken, upon which execution shall issue as a
matter of right according to Sec. 1, Rule 39. [1
Exceptions: The following are immediately
Regalado 449-450, 2010 Ed., see Perez v.
executory without the expiration of the period
Zulueta, G.R. No. L-10374 (1959)]
to appeal
a. Judgments in actions for injunction,
A judgment becomes “final and executory”
receivership, accounting and support,
by operation of law. [Prieto v. Alpadi
and such other judgments as are now or
Development Corporation, G.R. No. 191025
may hereafter be declared to be
(2013)]
immediately executory. [Sec. 1, Rule 39]
b. Judgments in an action for forcible entry
Final and or unlawful detainer rendered against the
Final Judgments Executory defendant. [Sec. 19, Rule 39]
Judgments c. The decision of the Regional Trial Court in
Final judgments civil cases governed by the Rules on
finally dispose of, Summary Procedure. [Sec. 21, Rules on
adjudicate, or Judgments become Summary Procedure]
determine the rights final and executory d. The decision of the Labor Arbiter
of the parties, by operation of law reinstating a dismissed or separated
HOWEVER, they are after the lapse of the employee. [Art. 229, Labor Code]
not yet “final and period for appeal
Exception to the exception: The appellate
executory” pending without an appeal
court in its discretion may make an order
the expiration of the being filed. [Cadena
suspending, modifying, restoring or granting
reglementary period v. Civil Service the injunction, receivership, accounting, or
for appeal. [1 Commission, G.R. award of support. The stay of execution shall
Regalado 450, 2010 No. 191412 (2012)] be upon such terms as to bond or otherwise as
Ed.] may be considered proper for the security or
protection of the rights of the adverse party.
[Sec. 1, Rule 39]

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U.P. LAW BOC CIVIL PROCEDURE
Quashal of a writ of execution
General rule: The execution of final and
executory judgments may no longer be
contested and prevented, and no appeal
should lie therefrom. [1 Riano 609, 2016 Ed.]
Exception: These exceptional circumstances
may prevent the execution of a judgment or
allow the quashal of a writ of execution already
issued:
1. Improvidently issued
2. Defective in substance
3. Issued against wrong party
4. Issued without authority
5. Inequitable due to change in situation of
parties
6. Controversy was never validly submitted to
court [Sandico v. Piguing, G.R. No. L-
26115 (1971)]
7. The writ varies the terms of the judgment,
there is ambiguity in the terms of the
judgment or when it is sought to be
enforced against property exempt from
execution [Limpin v. IAC, G.R. No 70987
(1987)]
8. There is substantial variance between the
judgment and the writ of execution issued
to enforce the same [Malacora v. CA, G.R.
No. 51042 (1982)]
[1 Regalado 453, 2010 Ed.]
Note: These defects may be challenged on
appeal or in certiorari, prohibition or mandamus
actions. [Limpin v. IAC, G.R. No 70987 (1987)]
i. Execution as a Matter of Right
Execution as a matter of right is available in
two instances
1. Upon the expiration of the period to appeal
therefrom if no appeal has been duly
perfected.
2. Appeal has been duly perfected and finally
resolved.
[Sec. 1, Rule 39]
How done
1. If no appeal is perfected upon the
expiration of the period to appeal
therefrom, on motion.
Page 149 of 525
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2. If the appeal has been duly perfected
and finally resolved, the execution may
a. Be applied for in the court of origin,
b. On motion of the judgment obligee,
c. Submitting certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the
entry thereof, with notice to the adverse
party.
[Sec. 1, Rule 39]
Necessity of hearing
An ex parte motion for the issuance of the writ
would suffice since the trial court may take
judicial notice of the record of the case to
determine the propriety of the issuance thereof.
However, where the losing party shows that
subsequent facts had taken place which would
render execution unjust, a hearing on the
motion should be held. [Luzon Surety Co. v.
Beson, G.R. No. L-26865-66 (1976)]
General rule:
Issuance of the writ of execution is a matter of
right on the part of the prevailing party when
the judgment or order becomes executory.
[1 Regalado 453, 2010 Ed.]
Exceptions:
The issuance of a writ of execution which
issues as a matter of right can be countered in
any of the following cases:
a. When the judgment has already been
executed by the voluntary compliance
thereof by the parties;
b. When a judgment has been novated by the
parties;
c. When a petition for review is filed and
preliminary injunction is granted; Also,
when execution of the judgment has been
enjoined by a higher court;
d. When the judgment sought to be executed
is conditional or incomplete;
e. When facts and circumstances transpire
which would render execution inequitable
or unjust;
f. When execution is sought more than five
(5) years from its entry without it having
been revived;
U.P. LAW BOC CIVIL PROCEDURE
g. When execution is sought against property
exempt from execution;
h. When refusal to execute the judgment has
become imperative in the higher interest of
justice.
[1 Riano 647-648, 2014 Bantam Ed.]
Supervening event doctrine
A supervening event can be invoked for the
modification or alteration of a final judgment.
This refers to:
a. Facts which transpire after judgment has
become final and executory;
b. New circumstances which developed after
the judgment has acquired finality;
c. Matters which the parties were not aware
of prior to or during the trial as they were
not yet in existence at that time.
The supervening facts or circumstances must
either
a. Bear a direct effect upon the matters
already litigated and settled, or
b. Create a substantial change in the rights or
relations of the parties therein which render
execution of the final judgment unjust,
impossible, or inequitable.
[Abrigo, et al. v. Flores, et al., G.R. No. 160786
(2013)]
ii. Discretionary Execution
The issuance of a writ of execution is
discretionary on the part of the court when it
is for the
a. Execution of a judgment or final order
pending appeal, or
b. Execution of several, separate, or partial
judgments.
[Sec. 2, Rule 39]
Note: The period to appeal where an MR has
been filed commences only upon the receipt of
a copy of the order disposing of the MR. The
pendency of the MR prevents the running of the
period to appeal. When there is a pending MR,
an order of execution pending appeal is
improper and premature. [JP Latex
Technology, Inc. v. Ballons Granger Balloons,
Inc., et al., G.R. No. 177121 (2009)]
Page 150 of 525
REMEDIAL LAW
Discretionary execution is not applicable in
the case of the CA
A judgment of the CA cannot be executed
pending appeal [Heirs of Justice JBL Reyes v.
CA, G.R. No. 135180-81 (2000)]
Where motion filed
1. In the trial court
• While it has jurisdiction over the case
and is in possession of the original
record or record on appeal
2. In the appellate court
• After the trial court has lost jurisdiction.
[Sec. 2, Rule 39]
Requisites
1. Motion filed by the prevailing party with
notice to the adverse party,
2. Filed with either the trial court or appellate
court,
3. Hearing on the motion for discretionary
execution,
4. There must be good reasons to justify the
discretionary execution, and
5. The good reasons must be stated in a
special order.
[Sec. 2, Rule 39]
“Good reasons”
Compelling circumstances justifying the
immediate execution lest judgment becomes
illusory, or the prevailing party may after the
lapse of time become unable to enjoy it. [Far
East Bank v. Toh, G.R. No. 144018 (2003)]
Mere issuance of a bond to answer for
damages is no longer considered a good
reason for execution pending appeal. [Planters
Products v. CA, G.R. No. 106052 (1999)]
Mere allegation that the appeal is dilatory is not
a good reason to merit discretionary execution.
Nor is the fact that the prevailing party is in
financial distress. [Intramuros Tennis Club vs
CA, G.R. No. 135630 (2000)]
Examples of good reasons:
1. Where the goods subject of the judgment
stand to perish or deteriorate during the
pendency of the appeal. [Yasuda v. CA,
G.R. No. 112569 (2000)]
U.P. LAW BOC CIVIL PROCEDURE
2. The award of actual damages is for an
amount fixed and certain, but not an award
for moral and exemplary damages. [Radio
Communications Inc. v. Lantin, G.R. No. L-
59311 (1985)]
3. Insolvency of a defeated party. [Hacienda
Navarro v. Labrador, G.R. No. L-45912
(1938)]
4. The prevailing party is of advanced age
and in a precarious state of health and the
obligation in the judgment is non-
transmissible, being for support. [De Leon
v. Soriano, G.R. No. L-7648 (1954)]
5. Where defendants were exhausting their
income and have no other property aside
from proceeds of the property subject in
litigation. [Lao v. Mencias, G.R. No. L-
23554 (1967)]
Stay of discretionary execution
Discretionary execution issued may be stayed
upon approval by the proper court of a
sufficient supersedeas bond
a. Filed by the party against whom it is
directed, and
b. Conditioned upon the performance of the
judgment or order allowed to be executed
in case it shall be finally sustained in whole
or in part.
Note: The bond may be proceeded against on
motion with notice to the surety.
[Sec. 3, Rule 39]
General rule: The filing of a supersedeas
bond is sufficient to stay the enforcement of a
discretionary execution. [Sec. 3, Rule 39]
Exception: Where the needs of the
prevailing party are urgent, the Court can
order immediate execution despite such
supersedeas bond. [1 Regalado 466, 2010
Ed.]
If judgment is reversed totally or partially,
or annulled, on appeal or otherwise
The trial court may, on motion, issue such
orders of restitution or reparation of
damages as equity and justice may warrant
under the circumstances. [Sec. 5, Rule 39]
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REMEDIAL LAW
Restitution - The property itself must be
returned to the judgment debtor, if the same is
still in the possession of the judgment creditor,
plus compensation to the former for the
deprivation and use of the property. [1
Regalado 467, 2010 Ed.]
Reparation of damages:
a. If the purchaser at the public auction
was the judgment creditor, pay the full
value of the property at the time of its
seizure plus interest
b. If the purchaser at public auction was a
third person, judgment creditor must pay
the judgment debtor the amount realized
from the sale with interest thereon; and
c. If the judgment award was reduced on
appeal, the judgment creditor must return
to the judgment debtor only the excess
which he received over and above that to
which he is entitled under the final
judgment, with interest on such excess.
[Po Pauco v. Tan Juco, G.R. No. L-63188
(1990)]
Remedy against discretionary execution
The remedy is certiorari by Rule 65.
Note: The fact that the losing party has also
appealed from the judgment does not bar
certiorari proceedings as the appeal could not
be an adequate remedy from such premature
execution. [Jaca v. Davao Lumber Co., G.R.
No. L-25771 (1982)]
c. How a Judgment is Executed
i. Execution by Motion or by
Independent Action
Modes of enforcement of execution
Mode When enforced
Within 5 years from the
By motion
date of entry of judgment
After the lapse of 5
years from date of entry
By independent
and before it is barred
action
by the statute of
limitations
U.P. LAW BOC CIVIL PROCEDURE
Note: The Statute of
Limitations is 10 years
from date of entry. [Art.
1144(3), CC].
[Sec. 6, Rule 39]
Revival of judgment
An action for revival of judgment is a procedural
means of securing the execution of a previous
judgment which has become dormant after the
passage of 5 years without it being executed
upon motion of the prevailing party. [Saligumba
vs Palanog, 573 SCRA 8, 15-16 (2008)]
The action must be filed within 10 years from
the date the judgment became final since the
action to enforce a judgment prescribes in 10
years from the finality of judgment. [Art.
1144(3), CC]
A revived judgment is deemed a new judgment
separate and distinct from the original
judgment. It is not a continuation. [PNB v.
Bondoc, G.R. No. L-20236 (1965)]
How enforced
A revived judgment may also be enforced the
same way. [Sec. 6, Rule 39]
Note: The 10-year prescriptive period
commences to run from the date of finality of
the revived judgment and not the original
judgment. [PNB v. Bondoc, G.R. No. L-20236
(1965)]
Time periods
The time periods provided may be stayed by:
a. Agreement of the parties for a definite time,
b. Injunction, or
c. Taking of an appeal or writ of error.
[Yau vs Silverio, and Macapagal v. Gako, 543
SCRA 520, 529 (2008)]
The periods shall not apply to:
a. Special proceedings, and
b. Judgments for support.
[Rodil v. Benedicto, 95 SCRA 137, (1980) and
Canonizado v. Benitez, 127 SCRA 610 (1984)]
Page 152 of 525
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ii. Issuance and Contents of a Writ of
Execution
Contents of the writ of execution
The writ of execution is issued in the name of
the Republic of the Philippines and shall state:
1. The name of the court,
2. The case number and title,
3. The dispositive part of the subject
judgment or order, and
4. Shall require the sheriff or other proper
officer to whom it is directed to enforce the
writ according to its terms.
[Sec. 8, Rule 39]
Dispositive portion as subject of execution
The writ of execution should conform to the
dispositive portion of the decision to be
executed. [Ex-Bataan Veterans Security
Agency Inc vs NLRC, G.R. No. 121428 (1995)]
Issuance of a writ of execution
Effectivity
Such writ shall continue in effect during the
period within which the judgment may be
enforced by motion. [Sec. 14, Rule 39]
Note: A judgment may be enforced by motion
within 5 years from date of entry of judgment.
[Sec. 6, Rule 39]
Against whom issued
General rule: Only real parties in interest in
an action are bound by judgment rendered
therein and by the writs of execution.
Exceptions:
There are certain cases where the writ may be
issued against non-parties
a. One who is privy to judgment debtor can be
reached by an order of execution and writ
of demolition [Vda. De Medina v. Cruz,
G.R. No. L-39272 (1988)]
b. Issued against one who, not being
originally a party to the case, submits his
interest to the court for consideration in the
same case and invites adjudication
regarding said interest [Jose v. Blue, G.R.
No. L-28646 (1971)]
c. Where non-parties voluntarily signed the
compromise agreement or voluntarily
U.P. LAW BOC CIVIL PROCEDURE
appeared before court [Rodriguez v.
Alikpala, G.R. No. L-38314 (1974)]
Return of a writ of execution
a. Judgment satisfied within 30 days
The writ of execution shall be returnable to the
court issuing it immediately after the judgment
has been satisfied in part or in full. [Sec. 14,
Rule 39]
b. Judgment not satisfied within 30 days
1. The officer shall report to the court and
state the reason therefore.
2. The officer shall make a report to the
court every 30 days on the proceedings
taken thereon until the judgment is
satisfied in full, or its effectivity expires.
3. The returns or periodic reports shall set
forth the whole of the proceedings
taken, and shall be filed with the court
and copies thereof promptly furnished
the parties
[Sec. 14, Rule 39]
Entry of satisfaction of judgment
Satisfaction of a judgment shall be entered by
the COC in the court docket, and in the
execution book, upon the:
a. Return of a writ of execution showing the
full satisfaction of the judgment, or
b. Filing of an admission to the satisfaction of
the judgment executed and acknowledged
in the same manner as a conveyance of
real property by the judgment obligee or by
his counsel unless a revocation of his
authority is filed, or
c. Endorsement of such admission by the
judgment obligee or his counsel on the face
of the record of the judgment.
[Sec. 44, Rule 39]
The court may order the entry of satisfaction
even if the judgment was satisfied in fact or
otherwise than upon execution:
a. With admission of satisfaction by the
judgment obligee or counsel, or
• On demand of the judgment obligor,
such persons must execute and
acknowledge, or indorse, the
admission
Page 153 of 525
REMEDIAL LAW
•After notice and upon motion, the court
may order such persons to do so
b. Without admission of satisfaction.
[Sec. 45, Rule 39]
Effect of death of a party to execution
a. Death of the judgment obligee
- Will not prevent the execution of
judgment
- Execution will issue upon the
application of the executor,
administrator, or successor in
interest.
b. Death of the judgment obligor
- Will not prevent execution of judgment
- Execution shall issue against his
executor, administrator, or successor
in interest.
[Sec. 7, Rule 39]
iii. Execution of Judgments for
Money
If the award is for payment of money,
execution is enforced by
1. Immediate payment on demand,
2. Satisfaction by levy, or
3. Garnishment of debts and credits [Sec. 9,
Rule 39]
Note: Levy can only be made under Sec. 9 of
Rule 39
IMMEDIATE PAYMENT ON DEMAND
Procedure
1. The officer shall demand from the
judgment obligor the immediate payment of
the full amount stated in the writ of
execution and all lawful fees.
2. The judgment obligor shall pay in cash,
certified bank check payable to the
judgment obligee, or any other form of
payment acceptable to the latter, the
amount of the judgment debt under proper
receipt directly to the judgment obligee or
his authorized representative if present at
the time of payment.
3. The lawful fees shall be handed under
proper receipt to the executing sheriff
who shall turn over the said amount within
U.P. LAW BOC CIVIL PROCEDURE
the same day to the COC of the court that
issued the writ.
[Sec. 9(a), Rule 39]
Procedure if the judgment obligee or his
authorized representative is not present to
receive payment
1. The judgment obligor shall deliver the
aforesaid payment to the executing sheriff.
• Note: In no case shall the executing
sheriff demand that any payment by
check be made payable to him.
2. The executing sheriff shall turn over all
the amounts coming into his possession
within the same day to the COC of the court
that issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary account in the nearest
government depository bank of the. RTC of
the locality.
3. The COC shall thereafter arrange for the
remittance of the deposit to the account of
the court that issued the writ whose COC
shall then deliver said payment to the
judgment obligee in satisfaction of the
judgment.
4. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall
be retained by the COC for disposition as
provided by law.
[Sec. 9(a), Rule 39]
SATISFACTION BY LEVY
Definition
Levy is the act whereby:
a. A sheriff/officer sets apart or appropriates,
b. For the purpose of satisfying the command
of the writ,
c. A part or the whole of the judgment debtor’s
property.
[Fiestan v. CA, G.R. No. 81552 (1990)]
Condition before resort to satisfaction by
levy
If the judgment obligor cannot pay all or part of
the obligation in cash, certified bank check or
other mode of payment acceptable to the
judgment obligee. [Sec. 9(b), Rule 39]
Page 154 of 525
REMEDIAL LAW
Procedure
1. The officer shall levy upon the properties
of the judgment obligor of every kind and
nature whatsoever which may be disposed
of for value and not otherwise exempt from
execution
2. The officer shall give the judgment obligor
the option to choose which property or
part thereof may be levied upon, sufficient
to satisfy the judgment.
3. If the judgment obligor does not exercise
the option, the officer shall first levy on the
personal properties, if any, and then on
the real properties if the personal
properties are insufficient to answer for
the judgment.
Note: The sheriff shall sell only a sufficient
portion of the personal or real property of the
judgment obligor which has been levied upon
and only so much of the personal or real
property as is sufficient to satisfy the judgment
and lawful fees.
How the levy is done
Real property, stocks, shares, debts, credits,
and other personal property, or any interest in
either real or personal property, may be levied
upon in like manner and with like effect as
under a writ of attachment.
[Sec. 9(b), Rule 39]
Note: If the judgment is for a sum of money
1. The judgment obligor dies before the
levy has been made on the property:
judgment cannot be enforced by writ of
execution. Instead, it should be filed as a
claim against the estate.
2. If the judgment obligor dies after the
entry of judgment but before levy on his
property: Execution will issue if it is for the
recovery of real/personal property.
[1 Regalado 475, 2010 Ed.]
“Break-open” order
An order from the court authorizing the sheriff
to destroy, demolish or remove improvements
on property subject of execution. [Sec. 10(d),
Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
A special order of demolition is an order from
the court authorizing the sheriff to destroy,
demolish or remove improvements on property
subject of execution. It is issued upon hearing
and reasonable notice. Without one, the sheriff
cannot destroy, demolish, or remove any
improvements on the property. [Guario v.
Ragsac, A.M. No. P-08-2571 (2009); see Sec.
10(d), Rule 39]
A writ of execution directing the sheriff to cause
the defendant to vacate is in the nature of a
habere facias possessionem and authorizes
the sheriff, without need of securing a
“break-open” order, to break open the
premises where there is no occupant therein.
[Arcadio v. Ylagan, A.M. No. 2734 (1986)]
Note: The rationale is that the writ of execution
itself is essentially an order to place the
prevailing party in possession of the property.
If the defendant refuses to surrender
possession of the property to the prevailing
party, the sheriff or other proper officer should
oust him. No express order to this effect needs
to be stated in the decision. [Guario v. Ragsac,
A.M. No. P-08-2571 (2009)]
GARNISHMENT OF DEBTS AND CREDITS
The process of levying shall be called
garnishment if the property involved is
money, stocks, or other incorporeal
property in the hands of third persons.
Note: Garnishment merely sets apart such
funds but does not constitute the creditor as
owner of the garnished property. [De la Rama
v. Villarosa, G.R. No. L-19727 (1963)]
Garnishment is not a violation of R.A. 1405
on the secrecy of bank deposits, as it does
not involve an inquiry or examination of such
deposit. [China Banking Corp. v. Ortega, G.R.
No. L-34964 (1973)]
What may be garnished
The officer may levy on
a. Debts due the judgment obligor and
b. Other credits, including
i. Bank deposits
ii. Financial interests,
Page 155 of 525
REMEDIAL LAW
iii. Royalties
iv. Commissions and
v. Other personal property not capable of
manual delivery in the possession or
control of third parties. [Sec. 9(c), Rule
39]
Procedure
1. Notice shall be served upon the person
owing such debts or having in his
possession or control such credits to which
the judgment obligor is entitled.
• Note: The garnishment shall cover only
such amount as will satisfy the
judgment and all lawful fees.
2. The garnishee shall make a written report
to the court within 5 days from service of
the notice of garnishment stating whether
or not the judgment obligor has sufficient
funds or credits to satisfy the amount of the
judgment. If not, the report shall state how
much funds or credits the garnishee holds
for the judgment obligor.
• Note: Upon service of the writ of
garnishment, the garnishee becomes a
“virtual party” or “forced intervenor” to
the case and the trial court thereby
acquires jurisdiction to bind the
garnishee to comply with its orders and
processes [BPI v. Lee, G.R. No.
190144 (2012)]
3. The garnished amount in cash, or
certified bank check issued in the name of
the judgment obligee, shall be delivered
directly to the judgment obligee within
10 working days from service of notice on
said garnishee requiring such delivery,
except the lawful fees which shall be paid
directly to the court.
4. In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have
the right to indicate the garnishee or
garnishees who shall be required to
deliver the amount due; otherwise, the
choice shall be made by the judgment
obligee.
5. The executing sheriff shall observe the
same procedure under Sec. 9(a), Rule 39
U.P. LAW BOC CIVIL PROCEDURE
with respect to delivery of payment to the
judgment obligee.
[Sec. 9(c), Rule 39]
iv. Execution of Judgments for
Specific Acts
Under Section 10, a party is directed to
execute conveyance of land or to deliver deeds
or other documents, or to perform any other
specific acts in connection therewith but
which acts can be performed by persons
other than said party. [1 Regalado 486, 2010
Ed.]
FOR CONVEYANCE OF REAL OF LAND OR
PERSONAL PROPERTY
Conditions
1. If a judgment directs a party to
a. Execute a conveyance of land or
personal property, or
b. Deliver deeds or other documents, or
c. Perform any other specific act in
connection therewith, and
2. The party fails to comply within the time
specified
[Sec. 10(a), Rule 39]
Procedure
1. The court may direct the act to be done at
the cost of the disobedient party by
some other person appointed by the court
and the act when so done shall have like
effect as if done by the party.
2. If real or personal property is situated within
the Philippines, the court may by an order
divest the title of any party and vest it in
others, which shall have the force and
effect of a conveyance executed in due
form of law.
[Sec. 10(a), Rule 39]
It is only when reconveyance is no longer
feasible (e.g. passed on to a buyer for value in
good faith, dissipated, etc.) that the judgment
obligor should pay the judgment obligee the fair
market value of the property. [Raymundo v.
Galen Realty and Mining Corp., G.R. No.
191594 (2013)]
Page 156 of 525
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FOR SALE OF REAL OR PERSONAL
PROPERTY
If the judgment be for the sale of real or
personal property, [an order for execution shall
be issued] to:
a. Sell such property, describing it, and
b. Apply the proceeds in conformity with the
judgment.
[ Sec. 10(b), Rule 39]
FOR DELIVERY OR RESTITUTION OF REAL
PROPERTY
1. The officer shall demand of the person
against whom the judgment for the delivery
or restitution of real property is rendered
and all persons claiming rights under him
to peaceably vacate the property within 3
working days, and restore possession
thereof to the judgment obligee.
2. Otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, of appropriate peace officers,
and employing such means as may be
reasonably necessary to retake
possession, and place the judgment
obligee in possession of such property.
3. Any costs, damages, rents or profits
awarded by the judgment shall be satisfied
in the same manner as a judgment for
money.
[Sec. 10(c), Rule 39]
REMOVAL OF IMPROVEMENTS ON
PROPERTY SUBJECT OF EXECUTION
When the property subject of the execution
contains improvements constructed or planted
by the judgment obligor or his agent, the
officer shall not destroy, demolish or
remove said improvements except:
1. Upon special order of the court, issued
upon motion of the judgment obligee after
due hearing and
2. After the former has failed to remove the
same within a reasonable time fixed by the
court.
[Sec. 10(d), Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
DELIVERY OF PERSONAL PROPERTY
In judgments for the delivery of personal
property, the officer shall:
a. Take possession of the same, and
b. Deliver it to the party entitled thereto and
satisfy any judgment for money as therein
provided. [Sec. 10(e), Rule 39]
v. Execution of Special Judgments
A special judgment under Section 12 requires
the performance of any act, other than the
payment of money or the sale or delivery or real
or personal property, which a party must
personally do because his personal
qualifications and circumstances have been
taken into consideration. [1 Regalado 486,
2010 Ed.]
When proper
A judgment requires performance of any other
act than those mentioned in Secs. 9 and 10
(payment of money or sale or delivery of
property). [Sec. 11, Rule 39]
Procedure
A certified copy of the judgment shall be
1. Attached to the writ of execution and
2. Served by the officer upon
a. The party against whom the same is
rendered, or
b. Any other person required thereby, or
by law, to obey the same, and
3. Such party or person may be punished for
contempt if he disobeys such judgment
[Sec. 11, Rule 39]
Examples:
a. A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital
[Vital-Gozon v. CA, G.R. No. 101428
(1992)]
b. A judgment directing the defendant to
remove a fence from a certain place is a
special judgment [Marquez v. Marquez,
G.R. No. 47792 (1941)]
vi. Effect of Levy on Third Person
The levy on execution shall create a lien in
favor of the judgment obligee over the right,
Page 157 of 525
REMEDIAL LAW
title and interest of the judgment obligor in such
property at the time of the levy, subject to
liens and encumbrances then existing.
[Sec. 12, Rule 39]
Note: The power of the court in executing
judgments extends only over properties
unquestionably belonging to the judgment
debtor. [Corpuz v. Pascua, A.M. No. P-11-
2972 (2011)]
A duly registered levy on attachment or
execution is preferred over a prior unregistered
sale. Under the Torrens system, the auction
sale of property retroacts to the date the levy
was registered; now, under Secs. 51 and 2 of
P.D. 1529, the act of registration is the
operative act to convey or affect the land
insofar as third persons are concerned. [Du v.
Stronghold Insurance Co. Inc., G.R. No.
156580 (2004)]
d. Properties Exempt from
Execution
General rule: The following property, and no
other, shall be exempt from execution:
a. The judgment obligor’s family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith
b. Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood
c. Three horses, or three cows, or three
carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation
d. His necessary clothing and articles for
ordinary personal use, excluding jewelry
e. Household furniture and utensils
necessary for house-keeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding PHP
100,000
f. Provisions for individual or family use
sufficient for four months
g. The professional libraries and
equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

surveyors, clergymen, teachers, and other

professionals, not exceeding PHP 300,000 e. Proceedings Were Property is
in value Claimed by Third Persons; in
h. One fishing boat and accessories not
Relation to Third Party Claim in
exceeding the total value of PHP 100,000
owned by a fisherman and by the lawful
Attachment and Replevin
use of which he earns his livelihood
i. So much of the salaries, wages, or
Sec. 16, Rule 39 and other provisions providing
a mode for recovering property alleged to have
earnings of the judgment obligor for his
been wrongfully taken by sheriff pursuant to a
personal services within the four
writ of execution or other process, refer to a
months preceding the levy as are
stranger to an action. [Tillson v. CA, G.R. No.
necessary for the support of his family
89870 (1991)]
j. Lettered gravestones
k. Monies, benefits, privileges, or annuities
Remedies of third-party claimant
accruing or in any manner growing out of
a. Summary hearing before the court which
any life insurance
authorized the execution
l. The right to receive legal support, or
b. “Terceria” or third-party claim filed with
money or property obtained as such
support, or any pension or gratuity from the the sheriff [Sec. 16, Rule 39]
c. Action for damages on the bond posted
Government
by the judgment creditor
m. Properties specially exempted by law
d. Independent Reinvindicatory action
[Sec. 13, Rule 39]
Note: Such are cumulative remedies and may
Examples of item (m) above
be resorted to by a third-party claimant
1. Property mortgaged to the DBP [Sec. 26,
independently of or separately from and
CA 458]
without need of availing of the others. [Sy v.
2. Savings of national prisoners deposited
Discaya, G.R. No. 86301 (1990)]
with the postal savings bank [Act. 2489]
3. Benefits from private retirement systems of
For a third-party claim to be sufficient
companies and establishments with
a. Must be filed by a person other than the
limitations [R.A. 4917]
defendant or his agent, at any time before
4. Laborer’s wages except for debts incurred
sale
for food, shelter, clothing and medical
b. Must be under oath or supported by
attendance [Art. 1708, CC]
affidavit stating the claimant’s title to, or
5. Benefit payments from SSS [Sec. 16, R.A.
1161, as amended] right of possession of, the property, and
grounds therefor
c. Must be served upon the officer making
Exception: No article or species of property
levy and a copy thereof upon the judgment
mentioned in Sec. 13, Rule 39 (enumerated
creditor
above) shall be exempt from execution issued
[Sec. 16, Rule 39]
upon a
a. Judgment recovered for its price or
On spouses
b. Judgment of foreclosure of a mortgage
thereon A spouse who was not a party to the suit but
whose conjugal property is being executed
[Sec. 13, Rule 39]
because the other spouse is the judgment
obligor is not considered a stranger to the suit
The exemptions must be claimed, otherwise
and cannot file a separate action to question
they are deemed waived. It is not the duty of
the sheriff to set off the exceptions on his own the execution since they could have easily
questioned the execution in the main case
initiative. [Herrera v. Mcmicking, G.R. No. L-
itself. [1 Regalado 501, 2010 Ed.]
5329 (1909)]

Page 158 of 525

U.P. LAW BOC CIVIL PROCEDURE
The institution of a separate action was allowed
when the property was the exclusive or
paraphernal property of a spouse who was
not a party to the case the judgment wherein
was sought to be executed. In such a situation,
the aggrieved spouse was deemed to be a
stranger to that main action. [Ching v. CA, G.R.
No. 118830 (2003)]
Effect of third-party claim
The officer shall not be bound to keep the
property, unless such judgment obligee, on
demand of the officer, files a bond approved by
the court to indemnify the third-party claimant
in a sum not less than the value of the property
levied on. [Sec. 16, Rule 39]
SUMMARY HEARING BEFORE COURT
AUTHORIZING EXECUTION
A third-person whose property was seized by a
sheriff to answer for an obligation of a judgment
debtor may invoke the supervisory power of the
court which authorized such execution. [Sy v.
Discaya, G.R. No. 86301 (1990)]
Procedure
a. Claimant files application
b. Court conducts summary hearing, and
c. The court may:
1. Command that the property be
released from the mistaken levy and
restored to rightful owner or possessor,
or
2. If the claimant's proofs do not
persuade, the claim will be denied by
the court.
The court determination is limited only to a
determination of whether the sheriff has acted
rightly or wrongly in performance of his duties.
The court does not and cannot pass upon the
question of title. [Sy v. Discaya, G.R. No. 86301
(1990)]
TERCERIA
When to file
Any time, as long as:
a. Sheriff has the possession of the property
levied upon, or
Page 159 of 525
REMEDIAL LAW
b. Before the property shall have been sold
under execution.
Procedure
Claimant serves on the officer making levy an
affidavit of his title and a copy thereof to
judgment creditor.
[Sec. 16, Rule 39]
Bond
To enforce a claim for damages against the
bond, the action must be filed within 120 days
from the filing of the bond.
The officer shall not be liable for damages
for the taking or keeping of the property, to any
third-party claimant if such bond is filed.
When bond not required
When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
not be required.
Note: If sheriff or levying officer is sued for
damages,
a. He shall be represented by the Solicitor
General, and
b. If held liable, the actual damages adjudged
by the court shall be paid by the National
Treasurer out of such funds as may be
appropriated for the purpose.
[Sec. 16, Rule 39]
The right of a third-party claimant to file a
terceria is founded on his title or right of
possession. Corollary thereto, before the court
can exercise its supervisory power to direct the
release of the property mistakenly levied and
the restoration thereof to its rightful owner, the
claimant must first unmistakably establish his
ownership or right of possession thereon.
[Villasi v. Garcia, G.R. No. 190106 (2014)]
REIVINDICATORY ACTION
Nothing contained in Sec. 16, Rule 39 shall
prevent such claimant or any third person from
vindicating his claim to the property in a
separate action, or prevent the judgment
obligee from claiming damages in the same or
a separate action against a third-party claimant
U.P. LAW BOC CIVIL PROCEDURE
who filed a frivolous or plainly spurious claim.
[Sec. 16, Rule 39]
Procedure
He must institute an action, distinct and
separate from that which the judgment is being
enforced, with the court of competent
jurisdiction
• In such ation, the validity and sufficiency of
title of the claimant will be resolved.
• A writ of preliminary injunction against the
sheriff may be issued.
Note: No need to file a claim in the court which
issued a writ. The latter is not a condition sine
qua non for the former.
[Sy v. Discaya, G.R. No. 86301 (1990)]
IN RE: THIRD PARTY CLAIMS IN
ATTACHMENT AND REPLEVIN
If the claim is filed under Sec. 16, Rule 39, it
must be filed in a separate action instituted for
the purpose. Intervention is no longer allowed
since judgment has already been rendered. [1
Regalado 500-501, 2010 Ed.]
If it is filed under Sec. 14, Rule 57
(Attachment) or under Sec. 7, Rule 60
(Replevin), the claim may be litigated in the
same action involved or in a separate suit.
Intervention is allowed. [1 Regalado 501, 2010
Ed.]
The reason for the difference is that the
judgment in the case subject of Sec. 16, Rule
39 is already final and executory, while Rules
57 and 60 involve actions still pending in
the trial court. [1 Regalado 501, 2010 Ed.]
f. Rules on Redemption
When available
Only for real property, since nothing in the
ROC provides for redemption of personal
property. [Sec. 27, Rule 39]
Who may redeem
a. Judgment obligor, or his successor in
interest in the whole or any part of the
property
Page 160 of 525
REMEDIAL LAW
b. A creditor (redemptioner) having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold.
[Sec. 27, Rule 39]
If the lien of the creditor is prior to the
judgment under which the property was sold:
a. He is not a redemptioner;
b. He cannot redeem since his interests in his
lien are fully protected. Any purchaser at a
public auction takes the same subject to
such prior lien which he has to satisfy.
[1 Regalado 512, 2010 Ed.]
Proof required of redemptioner
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and
serve with his notice to the officer
a. A copy of the judgment or final order under
which he claims the right to redeem,
certified by the clerk of the court wherein
the judgment or final order is entered; or,
b. If he redeems upon a mortgage or other
lien,
1. A memorandum of the record thereof,
certified by the registrar of deeds; or an
original or certified copy of any
assignment necessary to establish his
claim; and
2. An affidavit executed by him or his
agent, showing the amount then
actually due on the lien. [Sec. 30, Rule
39]
When redemption can be made
Who When
Within 1 year from the
By the judgment
date of registration of
obligor
the certificate of sale
Within 1 year from the
By first
date of registration of
redemptioner
the certificate of sale
By all subsequent Within 60 days from
redemptioners last redemption
[Sec. 28, Rule 39]
Note: There is no extension or interruption of
redemption period. [Sec. 28, Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
Redemption price
a. By the judgment debtor or first
redemptioner:
1. Purchase price,
2. 1% interest thereon up to time of
redemption,
3. Any amount of assessments or taxes
which purchaser may have paid after
purchase and interest on such last
named amount at the same rate, and
4. If the purchaser is also a creditor
having a prior lien to that of a
redemptioner, other than the judgment
under which such purchase was made,
the amount of such other lien, also with
interest.
b. By all subsequent redemptioners:
1. Amount paid on last redemption,
2. 2% interest thereon,
3. Any amount of assessments or taxes
which purchaser may have paid after
purchase as well as interest on such
last named amount at the same rate,
and
4. The amount of any liens held by said
last redemptioner prior to his own, also
with interest.
[Sec. 28, Rule 39]
If redemption is made by the judgment
obligor
a. No further redemption is allowed, and
b. He is restored to his estate.
[Sec. 29, Rule 39]
Note: When a judgment debtor redeems the
property, what is effected is the elimination of
the lien created by the levy on attachment or
judgment on the registration of mortgage
thereon. Note that he never lost ownership so
there is no recovery of ownership. [1 Regalado
513, 2010 Ed.]
Payment of redemption price may be made
to the:
a. Purchaser or redemptioner, or
b. For him to the officer who made the sale
[Sec. 29, Rule 39]
Page 161 of 525
REMEDIAL LAW
Duties upon redemption
The person to whom the redemption payment
is made must execute and deliver to him a
certificate of redemption.
a. Acknowledged before a notary public or
other officer authorized to take
acknowledgments of conveyances of real
property.
b. Filed and recorded in the registry of deeds
of the place in which the property is
situated, and
c. The registrar of deeds must note the record
thereof on the margin of the record of the
certificate of sale.
[Sec. 29, Rule 39]
RIGHTS PENDING REDEMPTION
Right of judgment obligee
Apply for injunction to restrain the commission
of waste on the property. [Sec. 31, Rule 39]
It is not waste for a person in possession of
the property at the time of the sale, or entitled
to possession afterwards, during the period
allowed for redemption, to
a. Continue to use it in the same manner in
which it was previously used
b. Use it in the ordinary course of husbandry,
or
c. Make the necessary repairs to buildings
thereon while he occupies the property
[Sec. 31, Rule 39]
Expiration of period to redeem
a. II no redemption be made within 1 year
from the date of the registration of the
certificate of sale, the purchaser is entitled
to a conveyance and possession of the
property; or,
b. If so redeemed whenever 60 days have
elapsed and no other redemption has
been made, and notice thereof given, and
the time for redemption has expired, the
last redemptioner is entitled to the
conveyance and possession.
General Rule: Under the expiration of the right
of redemption, the purchaser or redemptioner
shall be substituted to and acquire all the rights,
title, interest and claim of the judgment obligor
to the property as of the time of the levy -
U.P. LAW BOC CIVIL PROCEDURE
possession of the property shall be given to
the purchaser or last redemptioner by the
same officer
Exception: A third party is actually holding the
property adversely to the judgment obligor.
[Sec. 33, Rule 39]
Two documents which the sheriff executes
in case of real property
a. Certificate of sale
1. Upon a sale of real property, the officer
must give to the purchaser a certificate
of sale containing:
i. A particular description of the real
property sold;
ii. The price paid for each distinct lot
or parcel;
iii. The whole price paid by him; and
iv. A statement that the right of
redemption expires one year from
the date of the registration of the
certificate of sale
2. Must be registered in the registry of
deeds of the place where the property
is situated. [Sec. 25, Rule 39] - From
registration of said certificate, the 1
year redemption period starts [Sec. 28,
Rule 39]
3. Certificate of sale after execution sale
is merely a memorial of the fact of sale
and does not operate as conveyance [1
Regalado 508, 2010 Ed.]
b. Deed of Conveyance
1. Executed upon the expiration of the
period to redeem.
Note: The purchaser or redemptioner
shall be substituted to and acquire all
the rights, title, interest and claim of the
judgment obligor to the property as of
the time of the levy.
2. Executed by the officer making the
sale.
3. Under the expiration of the right of
redemption,
[Sec. 33, Rule 39]
Note: Hence, the certificate of sale of real
property does not confer any right to the
possession or ownership, of the real property
purchased. It is the deed of sale executed by
Page 162 of 525
REMEDIAL LAW
the sheriff at the expiration of the period of
redemption which entitles the purchaser to
possession of the property sold. [1 Regalado
508, 2010 Ed.]
Recovery of purchase price if sale not
effective
a. If the purchaser of real property sold on
execution, or his successor in interest,
• Fails to recover the possession thereof,
or
• Is evicted therefrom, in consequence of
irregularities in the proceedings
concerning the sale, or
b. Because the judgment has been reserved
or set aside, or
c. Because the property sold was exempt
from execution, or
d. Because a third person has vindicated his
claim, to the property,
The purchaser may, on motion in the same
action or in a separate action,
a. Recover from the judgment obligee the
price paid, with interest, or so much thereof
as has not been delivered to the judgment
obligor; or
b. Have the original judgment revived in his
name for the whole price with interest, or
so much thereof as has been delivered to
the judgment obligor.
Note: The judgment so revived shall
have the same force and effect as an
original judgment would have as of the
date of the revival and no more.
[Sec. 34, Rule 39]
Note: A purchaser’s right of possession is
recognized only as against the judgment
debtor and his successor-in-interest. It is not so
against persons whose right of possession is
adverse. When a third party is in possession
of the property purchased, the possession is
presumed to be based on just title - a
presumption which may be overcome by the
purchaser in a judicial proceeding for recovery
of the property. [Villanueva v. Cherdan
Lending Investors Corp., G.R. No. 177881
(2010)]
U.P. LAW BOC CIVIL PROCEDURE
g. Examination of Judgment
Obligor When Judgment is
Unsatisfied
When applicable
When the return of the writ issued against
property of a judgment obligor shows that
judgment remains unsatisfied. [Sec. 36, Rule
39]
Procedure
The judgment obligee, at any time after such
return is made, shall be entitled to an order
from the court which rendered the said
judgment
a. Requiring such judgment obligor to appear
and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a
specified time and place; and
b. Proceedings may thereupon be had for the
application of the property and income of
the judgment obligor towards the
satisfactions of the judgment.
When judgment obligor not required to
appear/ be examined
a. When he is required to appear before a
court or commissioner outside the province
or city in which such obligor resides or is
found. [Sec. 36, Rule 39]
b. After the lapse of the five years within
which a judgment may be enforced by
motion. [Umali v. Coquia, G.R. No. L-
46303 (1988)]
Order for payment in fixed monthly
installments
If upon investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are
more than necessary for the support of his
family, the court may order that:
a. He pay the judgment in fixed monthly
installments, and
b. Upon his failure to pay any such installment
when due without good excuse, may
punish him for indirect contempt.
[Sec. 40, Rule 39]
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REMEDIAL LAW
h. Examination of Obligor of
Judgment Obligor
When applicable
a. When the return of a writ of execution
against the property of a judgment obligor
shows that the judgment remains
unsatisfied, in whole or in part, and
b. Upon proof that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him.
[Sec. 37, Rule 39]
Procedure
The court may, by an order
a. Require such person, corporation, or other
juridical entity, or any officer or member
thereof, to appear before the court or a
commissioner appointed by it, at a time and
place within the province or city where such
debtor resides or is found, and
b. Be examined concerning the same.
Effect of order
The service of the order shall
a. Bind all credits due the judgment obligor
and all money and property of the judgment
obligor in the possession or in the control
of such person, corporation, or juridical
entity from the time of service, and
b. The court may also require notice of such
proceedings to be given to any party to the
action in such manner as it may deem
proper. [Sec. 37, Rule 39]
Note: This is not applicable if there is no issue
concerning the indebtedness of the bank and
there is no denial by the depositor of the
existence of the deposit with the bank which is
considered a credit in favor of the depositor
against the bank. [PCIB v. CA, G.R. No. 84526
(1991)]
When alleged obligor denies debt or claims
property
The court may
a. Authorize the judgment obligee to institute
an action against such person or
corporation for the recovery of such
interest or debt,
U.P. LAW BOC CIVIL PROCEDURE
b. Forbid a transfer or other disposition of
such interest or debt within 120 days from
notice of the order, and
c. May punish disobedience of such order as
for contempt.
[Sec. 43, Rule 39]
Impropriety of an action for damages as a
remedy
Where the writ of execution is unsatisfied,
the remedy to enforce it is Secs. 38-39, and not
a complaint for damages. [Phil. Transmarine
Carriers v. CA, G.R. No. 122346 (2000)]
OTHER REMEDIES
Order for application of property or income
The court may order any property of the
judgment obligor, or money due him, not
exempt from execution, in the hands of either
himself or another person, or of a corporation
or other juridical entity, to be applied to the
satisfaction of the judgment, subject to any
prior rights over such property. [Sec. 40, Rule
39]
After a writ of execution against property has
been issued, a person indebted to the
judgment obligor may pay to the sheriff
holding the writ of execution the amount of
his debt or so much thereof as may be
necessary to satisfy the judgment, in the
manner prescribed in Sec. 9, Rule 39 and the
sheriffs receipt shall be a sufficient discharge
for the amount so paid or directed to be
credited by the judgment obligee on the
execution [Sec. 39, Rule 39]
Appointment of receiver
The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of,
or any interference with, the property of the
judgment obligor not exempt from execution.
[Sec. 41, Rule 39]
If it appears that the judgment obligor has an
interest in real estate in the place in which
proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest
therein can be ascertained without
controversy, the receiver may be ordered to
Page 164 of 525
REMEDIAL LAW
sell and convey such real estate or the
interest of the obligor therein; and such sale
shall be conducted in all respects in the same
manner as is provided for the sale of real estate
upon execution, and the proceedings thereon
shall be approved by the court before the
execution of the deed. [Sec. 42, Rule 39]
i. Effect of Judgment or Final
Orders
Immutability of judgments
A judgment that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect, even
if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that rendered
it or by the Highest Court of the land. [PNB v.
Spouses Maranon, G.R. No. 189316 (2013)]
Rationale
a. To avoid delay in the administration of
justice, and procedurally to make orderly
the discharge of judicial business, and
b. To put an end to judicial controversies at
the risk of occasional errors.
[PCI Leasing and Finance, Inc. v. Milan, G.R.
No. 151215 (2010)]
RES JUDICATA
Dual aspect
a. Bar by former judgment
1. The judgment or final order is a bar to
the prosecution of a subsequent action
based on the same claim or cause of
action
2. Described by Sec. 47, pars. (a) and (b),
Rule 39
3. Also known as “Estoppel by Verdict”
b. Conclusiveness of judgment
1. The judgment or final order precludes
the relitigation of particular issues or
facts on a different demand or cause of
action
2. Described by Sec. 47, par. (c), Rule 39
3. Also known as the Rule of Auter Action
Pendant
[1 Riano 541, 2011 Ed.; 1 Regalado 529, 2010
Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Bar by former Conclusiveness of comply with these rules or any order of the
judgment judgment court, the action may be dismissed upon
There is only identity motion of the defendant or upon the court's
Requires identity of of parties and subject own motion. This dismissal shall have the
parties, subject matter effect of an adjudication upon the merits,
unless otherwise provided by court
matter, and causes
[Development Bank v. CA, G.R. No. 110203
of action Causes of action are
(2001)]
different
Absolute Bar to: Res judicata in judgments in rem
(a) all matters Conclusive as to Judgments or final
directly adjudged; matters directly Conclusive as to
order
and adjudged and Against a specific
(b) those that might actually litigated Title of the thing
thing
have been adjudged Probate of a will or
Claim Preclusion Issue Preclusion administration of the The will or
[1 Riano 683-684, 2011 Ed.] estate of a deceased administration
person
The rule of res judicata applies to final In respect to the
decisions of quasi-judicial agencies and to
personal, political, or
judgments rendered in probate proceedings [1
legal condition or Condition, status or
Regalado 534, 2010 Ed.]
status of a particular relationship of the
BAR BY FORMER JUDGMENT person or his person
The judgment or decree of a court of competent relationship to
jurisdiction on the merits concludes the parties another.
and their privies to the litigation and constitutes [1 Riano 542, 2011 Ed.]
a bar to a new action or suit involving the same
cause of action either before the same or any Res judicata in judgments in personam
other tribunal. [Machoca v. Cariaga, G.R. No. In other cases, the judgment or final order is,
75109-10 (1989)] with respect to the matter directly adjudged or
as to any other matter that could have been
Requisites missed in relation thereto, conclusive
a. A final judgment or order between
b. Jurisdiction over the subject matter and the a. The parties and
parties by the court rendering judgment b. Their successors in interest, by title
c. Judgment upon merits subsequent to the commencement of the
d. Between the two cases, there is identity of: action or special proceeding, litigating for
1. Parties the same thing and under the same title
2. Subject matter and in the same capacity
3. Cause of action [Sec. 47(b), Rule 39]
[1 Riano 430, 2011 Ed.]
CONCLUSIVENESS OF JUDGMENT
General rule: For res judicata to apply, trial Any right, fact or matter in issue directly
must be made on the merits of the case [1 adjudicated or necessarily involved in the
Regalado 530, 2010 Ed.] determination of an action before a competent
court in which a judgment or decree is rendered
Exception: Sec. 3, Rule 17: Dismissal upon on the merits is conclusively settled by the
fault of plaintiff - If plaintiff fails to appear at judgment therein and cannot again be
the time of the trial, or to prosecute his action litigated between the parties and their privies
for an unreasonable length of time, or to whether or not the claim or demand, purpose

Page 165 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

or subject matter of the two suits is the same. (1971); case need the same
[Machoca v. Cariaga, G.R. No. 75109-10 Vergara v. not be legal issue is
(1989)] Roque, G.R. followed as a raised.
No. L-32984 precedent in [CDCP
Requisites (1977)] subsequent Mining Corp.
a. A final judgment or order
litigation v. CIR, G.R.
b. Jurisdiction over the subject matter and the
between No. 122213
parties by the court rendering it
c. Judgment upon merits other parties. (2005)]
d. Between the two cases, there is identity of: [1 Riano 544,
1. Parties, and 2011 Ed]
2. Issues.
[1 Regalado 529-531, 2010 Ed.] 1. Enforcement and Effect of Foreign
Judgments or Final Orders
Res judicata, law of the case, and stare
decisis A valid judgment rendered by a foreign
a. Stare decisis - When the SC has laid down tribunal may be recognized insofar as the
a principle of law applicable to a certain immediate parties the underlying cause of
state of facts, it will adhere to that principle action are concerned so long as it is
and apply it to all future cases where the convincingly shown that:
facts are substantially the same. [1 Riano a. There has been an opportunity for a fair
533, 2011 Ed.] hearing before a court of competent
b. Law of the case - Whatever is once jurisdiction,
irrevocably established as the controlling b. Trial upon registered proceedings has
legal rule or decision between the same been conducted, and
parties in the case continues to be the law c. There is nothing to indicate either a
of the case whether correct on general prejudice in court and in the system of laws
principles or not, so long as the facts on under which it is sitting or fraud in procuring
which such decision was predicated the judgment.
continue to be the facts of the case before [Philippine Aluminum v. Fasgi Enterprises,
the court. [1 Riano 544, 2011 Ed.] G.R. No. 137378 (2000)]

Res Law of the Stare Purpose

judicata case decisis a. To avoid repetitive litigation on claims and
The parties Operates Once a point issues,
and the only in the of law has b. Prevent harassment of the parties, and
causes of particular been c. Avoid undue imposition on the courts.
action in both and single established [1 Regalado 536, 2010 Ed.]
actions are case where by the court,
Basis
identical or the ruling that point of
This policy of preclusion rests on principles of
substantially arises and is law will,
comity, utility and convenience of nations. [1
the same. not carried generally, be Regalado 536, 2010 Ed., see also Raytheon
[1 Regalado into other followed by International, Inc. v. Rouzie, Jr., G.R. No.
530, 2010 cases as a the same 162894 (2008)]
Ed., citing precedent. court and by
Yusingco all courts of As a generally accepted principle of
v.Ong Hing The ruling lower rank in international law, it is part of the law of the
Lian, G.R. adhered to in subsequent Philippines by virtue of the Incorporation
No. L-26523 the particular cases where Clause. [Sec. 2, Art. II, 1987 Constitution, 1

Page 166 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Regalado 536, 2010 Ed. citing Raytheon v. Before our courts can give the effect of res
Rouzie, G.R. No. 162894 (2008)] judicata to a foreign judgment, it must be
shown that the parties opposed to the
Nature judgment had been given ample opportunity to
The civil action for enforcement of a foreign do so on grounds under Section 48 of Rule 39
judgment is one incapable of pecuniary of the ROC. [Roehr v. Rodriguez, G.R. No.
estimation. 142480 (2003)]
• Although the foreign judgment may result
in recovery of money or property, the
cause of action and subject matter of
D. PROVISIONAL
the civil action is the foreign judgment REMEDIES
itself (and not, as in an ordinary action for
monetary relief, the violation of a right
through an act or omission). The matter left 1. NATURE AND PURPOSE
for proof is the foreign judgment itself, not
the facts from which it prescinds. [1 Nature of provisional remedies
Regalado 536, 2010 Ed.] They are temporary, auxiliary, and ancillary
remedies available to a litigant for the
Effect of foreign judgments [Sec. 48, Rule protection and preservation of his rights while
39] the main action is pending. They are writs and
Nature Effect processes which are not main actions and are
dependent for their application on the
In judgments Judgment is
existence of a principal action. [1 Regalado
against a specific conclusive upon the
684, 2010 Ed.]
thing (in rem) title to the thing
Judgment is Orders granting or denying provisional
presumptive remedies are merely interlocutory and cannot
In judgments evidence of a right as be the subject of an appeal. They may however
against a person (in between parties and be challenged before a superior court through
personam) their successors-in- a petition for certiorari under Rule 65. [Pahila-
interest by a Garrido v. Tortogo, et. al., G.R. No. 156358
subsequent title (2002)]

In both cases, judgment may be repelled by Purpose of provisional remedies

evidence of
a. Want of jurisdiction,
b. Want of notice,
c. Collusion,
d. Fraud, or
e. Clear mistake of law or fact. [Sec. 48, Rule
39]
A foreign judgment is presumed to be valid
and binding in the country from which it
comes, until a contrary showing, on the basis
of a presumption of regularity of proceedings
and the giving of due notice in the foreign
forum. [Asiavest Merchant Bankers v CA, G.R.
No 110263 (2001)]
a. To preserve or protect litigants’ rights or
interests during the pendency of the
principal action;
b. To secure the judgment;
c. To preserve the status quo of the the things
subject to the action or the relation
between the parties; and
d. To preserve the subject matter of the
action. [2 Riano 2, 2016 Bantam Ed.]
Kinds of provisional remedies
a. Preliminary attachment [Rule 57]
b. Preliminary injunction [Rule 58]
c. Receivership [Rule 59]
d. Replevin [Rule 60]
e. Support pendente lite [Rule 61]

Page 167 of 525

U.P. LAW BOC CIVIL PROCEDURE
Note: The enumeration above is not exclusive.
The court may invoke its equity jurisdiction and
order the appropriate reliefs during the
pendency of an action. [Reyes v. Lim, G.R. No.
134241 (2003)]
2. JURISDICTION OVER
PROVISIONAL REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction
over the main action. [1 Regalado 685, 2010
Ed.] Thus, where the main case is pending in a
specific RTC, it is the same court, not any other
court, which may grant the provisional remedy
applied for. [2 Riano 5, 2016 Bantam Ed.]
The authority to grant provisional remedies is
not the sole prerogative of superior courts.
Inferior courts may also grant all appropriate
provisional remedies in an action pending with
it and is within its jurisdiction. In fact, the
jurisdiction of the MTC includes the “grant of
provisional remedies in the proper cases.”
[Sec. 33 (1), B.P. 129]
3. PRELIMINARY ATTACHMENT
Definition
Attachment is defined as a provisional remedy
by which the property of an adverse party is
taken into legal custody, either at the
commencement of an action or at any time
thereafter, as a security for the satisfaction of
any judgment that can be recovered by the
plaintiff or any proper party. [Northern Islands
v. Garcia, GR No. 203240 (2015)]
Purposes
1. To seize the property of the debtor in
advance of final judgment and to hold it for
purposes of satisfying said judgment, as in
the grounds stated in Sec. 1(a) to (e), Rule
57, or
2. To acquire jurisdiction over the action
by actual or constructive seizure of the
property in those instances where personal
or substituted service of summons on the
defendant cannot be effected, as in Sec.
Page 168 of 525
REMEDIAL LAW
1(f), Rule 57 [PCIB v. Alejandro, G.R. No.
175587 (2007)]
Note: Being a mere ancillary to a principal
proceeding, the attachment must fail if the
principal suit itself cannot be maintained.
Another consequence is that where the main
action is appealed, the attachment is also
considered appealed and is removed from the
jurisdiction of the lower court. [2 Riano 12, 2016
Bantam Ed.]
a. Grounds for Issuance of Writ of
Attachment
When Preliminary Attachment may be
Applied For
An order for preliminary attachment may be
applied for
a. At the commencement of the action, or
b. At any time before entry of judgement.
[Sec. 1, Rule 57]
Who may apply
It may be applied for by
a. The plaintiff, or
b. Any proper party. [Sec. 1, Rule 57]
• Any proper party includes a defendant
who filed a counterclaim, cross-claim,
or a third party complaint [Sec. 1, Rule
3]
Grant of Preliminary Attachment is
Discretionary
The grant of the remedy of preliminary
attachment is addressed to judicial
discretion. There is nothing in Rule 57 which
indicates that the grant of such writ is a matter
of right on the part of the applicant. [2 Riano 13,
2016 Bantam Ed.]
Strict Construction
Since preliminary attachment opens up the
debtor to humiliation and annoyance, it may
only be granted when necessary and as a last
resort on concrete and specific grounds. [2
Riano 14, 2016 Bantam Ed.]
Grounds for Issuance
Under Sec. 1, Rule 57, the grounds for a
preliminary attachment are, to wit:
U.P. LAW BOC CIVIL PROCEDURE
a. 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.
• It is not sufficient to show that the party
against whom the writ is sought to be
issued is about to depart from the
country. It must be shown that such
departure was with “intent to defraud
his creditors”. [2 Riano 20, 2016
Bantam Ed.]
b. 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.
• A fiduciary duty is one “founded in trust
and confidence”. [2 Riano 21, 2016
Bantam Ed.]
c. 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. Against a party who has been guilty of
fraud in contracting the debt or incurring
the obligation upon which the action is
brought, or in the performance thereof.
e. Against a party who has removed or
disposed of his property, or is about to
do so, with intent to defraud his creditors.
f. Against a party who does not reside and
is not found in the Philippines, or on
whom summons may be served by
publication.
• Under the Amended Rules, summons
can be served via publication only in
the following cases:
Page 169 of 525
REMEDIAL LAW
1. Service to defendants where his
identity or whereabouts are
unknown. [Sec. 16, Rule 14]
2. Service when the defendant does
not reside and is not found in the
Philippines, and the action
o Affects the personal status of
the plaintiff or
o Relates to, or the subject of
which is, property within the
Philippines, in which the
defendant has or claims a lien
or interest, actual or
contingent, or
o In which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
o The property of the defendant
has been attached within the
Philippines. [Sec. 17, Rule 14]
3. Service to juridical entities not
registered or have no resident
agent but have transacted or are
doing business in the Philippines
[Sec. 14, Rule 14]
Note: The aforementioned grounds are
exclusive in nature. No other ground can
serve as the basis of a preliminary attachment.
[PCIB v. Alejandro, G.R. No. 175587 (2007)]
Three stages in the grant of preliminary
attachment
a. Court issues the order granting the
application,
b. Writ of attachment issues pursuant to the
order granting the writ, and
c. The writ is implemented. [1 Regalado 692,
2010 Ed.]
• In this stage, the court must have
already acquired jurisdiction over the
person of the defendant because the
court has no power over the property of
the defendant without such jurisdiction.
Hence, the rule on
prior/contemporaneous service of
summons (to be discussed below). [2
Riano 33, 2016 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. Requisites for Issuance of b. The case is one of those mentioned in Rule

Order of Preliminary 57, Sec. 1
c. There is no other sufficient security for the
Attachment
claim sought to be enforced by the action,
and
In order for the court to issue an order of
• Therefore, if a mortgage exists to
preliminary attachment, the applicant must file
secure the obligation, a writ of
a motion with notice and hearing by the court
preliminary attachment cannot be
in which the action is pending.
granted. [2 Riano 30, 2016 Bantam
Ed.]
However, the court may nonetheless issue an
d. the amount due to the applicant, or the
order of attachment ex parte. [Sec. 2, Rule 57]
value of the property the possession of
which he is entitled to recover, is as much
Requisites
as the sum for which the order is granted
Regardless of whether the order was granted
above all legal counterclaims. [Sec. 3, Rule
through motion or ex parte, the following are
57]
the requisites for the issuance of an order of
preliminary attachment, to wit:
Second requisite of an order of attachment
a. The applicant, or some other who
- Bond
personally knows the facts, must file an
The party applying for the order of attachment
affidavit.
must likewise give a bond executed to the
b. Applicant must post a bond executed to
adverse party. The amount of such bond is the
the adverse party in the amount fixed by
amount fixed by the court in the order of
the court in its order granting the issuance
attachment. [Sec. 4, Rule 57]
of the writ. [Secs. 3-4, Rule 57]
Conditions of applicant’s bond
c. Issuance and Contents of Order The party applying for the order will pay all the
of Attachment; Affidavit and costs which may be adjudged to the adverse
Bond party and all damages which he may sustain
by reason of the attachment, if the court shall
Contents of the order of attachment finally adjudge that the applicant was not
It must: entitled thereto. [Sec. 4, Rule 57]
a. Require the sheriff of the court to attach Note: The bond shall only be applied to all
so much of the property in the Philippines damages and costs sustained due to the
of the party against whom it is issued, not attachment. [Excellent Quality Apparel v.
exempt from execution, as may be Visayan Surety & Insurance Corp., G.R. No.
sufficient to satisfy the applicant’s demand 21205 (2015)]
b. Fix the amount of deposit or bond, which
may be the d. Rule on Prior or
1. Amount sufficient to satisfy the Contemporaneous Service of
applicant’s demand or
Summons
2. Value of the property to be attached as
stated by the applicant, exclusive of
General rule: The sheriff is not allowed to
costs. [Sec. 2, Rule 57]
make a levy on attachment if such levy is not
First requisite of an order of attachment -
made with prior or contemporaneous
Affidavit
service of the following:
An order of attachment shall be granted only
a. Service of summons
when the affidavit of the applicant, or of some
b. Copy of the complaint
other person who personally knows the facts,
c. Application for attachment
alleges that:
d. Applicant’s affidavit and bond, and
a. A sufficient cause of action exists,

Page 170 of 525

U.P. LAW BOC CIVIL PROCEDURE
e. Order for writ of attachment. [Sec. 5, Rule
57]
Exceptions: Levy on attachment would be
justified even without prior or
contemporaneous summons under the
following circumstances:
a. Summons could not be served personally
or by substituted service despite diligent
efforts, or
b. Defendant is a resident of the Philippines
temporarily absent therefrom, or
c. Defendant is a non-resident of the
Philippines, or
d. The action is in rem or quasi in rem. [Sec.
5, Rule 57]
e. Manner of Attaching Real and
Personal Property; When
Property Attached is Claimed
by Third Person
General rule: The sheriff enforcing the writ
shall without delay and with all reasonable
diligence attach, to await judgment and
execution in the action, only so much of the
property in the Philippines of the party against
whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant’s demand.
• The sheriff is precluded from attaching
any property exempt from execution,
such as those enumerated in Sec. 13,
Rule 39. [2 Riano 35, 2016 Bantam Ed.]
Exception: The sheriff shall not enforce the
writ if the adverse party makes a deposit with
the court from which the writ is issued, or gives
a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court
in the order of attachment or to the value of the
property to be attached, exclusive of costs.
[Sec. 5, Rule 57]
Sheriff’s return
After enforcing the writ, the sheriff must without
delay, make a return to the court issuing the
writ, with:
a. A full statement of his proceedings,
Page 171 of 525
REMEDIAL LAW
b. A complete inventory of the property
attached, ang
c. Any counter-bond given by the party
against whom attachment is issued. [Sec.
6, Rule 57]
ATTACHMENT OF SPECIFIC KINDS OF
PROPERTY
a. Real property, or growing crops
thereon, or any interest therein, standing
upon the record of the registry of deeds of
the province in the name of the party
against whom attachment is issued, or not
appearing at all upon such records, or
belonging to the party against whom
attachment is issued and held by any other
person, or standing on the records of the
registry of deeds in the name of any other
person,
1. By filing with the registry of deeds a
copy of the order, together with a
description of the property attached,
and a notice that it is attached, or that
such real property and any interest
therein held by or standing in the name
of such other person are attached, and
by leaving a copy of such order,
description, and notice with the
occupant of the property, if any, or with
such other person or his agent if found
within the province
• Where the property has been
brought under the operation of
either the Land Registration Act or
the Property Registration Decree,
the notice shall contain a reference
to the number of the certificate of
title, the volume and page in the
registration book where the
certificate is registered, and the
registered owner or owners
thereof.
2. The registrar of deeds must index
attachments filed under this section in
the names of the applicant, the adverse
party, or the person by whom the
property is held or in whose name it
stands in the records. If the attachment
is not claimed on the entire area of the
land covered by the certificate of title, a
description sufficiently accurate for the
U.P. LAW BOC CIVIL PROCEDURE
identification of the land or interest to
be affected shall be included in the
registration of such attachment
b. Personal property capable of manual
delivery,
• By taking and safely keeping it in his
custody, after issuing the corresponding
receipt therefor
c. Stocks or shares, or an interest in
stocks or shares, of any corporation or
company,
• By leaving with the president or
managing agent thereof, a copy of the
writ, and a notice stating that the stock
or interest of the party against whom the
attachment is issued is attached in
pursuance of such writ,
d. Debts and credits, including bank
deposits, financial interest, royalties,
commissions and other personal property
not capable of manual delivery,
• By leaving with the person owing such
debts, or having in his possession or
under his control, such credits or other
personal property, or with his agent, a
copy of the writ, and notice that the
debts owing by him to the party against
whom attachment is issued, and the
credits and other personal property in
his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ
e. The interest of the party against whom
attachment is issued in property
belonging to the estate of the decedent,
whether as heir, legatee, or devisee,
1. By serving the executor or
administrator or other personal
representative of the decedent with a
copy of the writ and notice that said
interest is attached.
2. A copy of said writ of attachment and of
said notice shall also be filed in the
office of the clerk of the court in
which said estate is being settled and
served upon the heir, legatee or
devisee concerned.
[Sec. 7, Rule 57]
Note: The attachment of the interest of an
heir, legatee, or devisee in the property
Page 172 of 525
REMEDIAL LAW
belonging to the estate of a decedent shall
not impair the powers of the executor,
administrator, or other personal
representative of the decedent over such
property for the purposes of administration.
[Sec. 9, Rule 57]
Attachment of property in custodia legis
a. A copy of the writ of attachment shall be
filed with the proper court or quasi-judicial
agency, and
b. Notice of the attachment served upon the
custodian of such property. [Sec. 7, Rule
57]
A previously attached property may also be
subsequently attached. What will arise in this
event will be a priority in the liens, where the
first attachment shall have priority over
subsequent attachments. [2 Riano 38, 2016
Bantam Ed.]
Examination of party whose property
whose property is attached or of persons
indebted to him
The Rules of Court empower the court to
examine under oath the party whose property
is attached for the purpose of giving
information respecting his property. Also, all
other persons in possession of property or
credit belonging to the person whose property
is attached may also be required to appear and
be examined under oath. [Sec. 10, Rule 57]
When property attached is being claimed by
third persons (Terceria, et al.)
A third person who has a claim to the property
attached may avail of the following remedies:
a. File terceria or third-party claim
1. By making an affidavit of his title
thereto, or right to the possession
thereof, stating the grounds of such
right or title, and
2. Serving such affidavit upon the
sheriff while the latter has possession
of the attached property, and a copy
thereof upon the attaching party. [Sec.
14, Rule 57]
b. File an independent action to recover
property. [Imani v. Metropolitan Bank &
U.P. LAW BOC CIVIL PROCEDURE
Trust Company, G.R. No.187023 (2010)];
or
c. File motion for intervention (available only
before judgment is rendered) [Sec. 1, Rule
19]
Note: The last method was allowed in the
case of Gopiao v. Metropolitan Bank &
Trust Co. [G.R. No. 188931 (2014)]
f. Discharge of Attachment and
the Counter-bond
Discharge of attachment and Counter-bond
After a writ of attachment has been enforced,
the party whose property has been attached, or
the person appearing on his behalf, may move
for the discharge of the attachment wholly or in
part on the security given. [Sec. 12, Rule 57]
Ways of discharging attachment
a. Counter-bond [Sec. 12, Rule 57]
b. Motion for discharge [Sec. 13, Rule 57]
Grounds for discharge
a. Debtor has posted a counter-bond or has
made the requisite cash deposit. [Sec. 12,
Rule 57]
• The mere posting of a counter-bond
does not automatically discharge the
writ of attachment. It is only after due
notice and hearing and after the judge
orders the discharge of the attachment
that the same is properly discharged. [2
Riano 42, 2016 Bantam Ed.]
b. Attachment was improperly or irregularly
issued [Sec. 13, Rule 57]
1. As where there was no ground for
attachment, or
2. The affidavit and/or bond filed are
defective or insufficient.
c. Judgment is rendered against attaching
creditor. [Sec. 19, Rule 57]
d. Attachment is excessive; but the discharge
shall be limited to the excess. [Sec. 13,
Rule 57]
e. Property attached is exempt from
execution.
[1 Regalado 709, 2010 Ed.]
Page 173 of 525
REMEDIAL LAW
Bond for issuance vs bond for lifting
a. Bond for issuance of writ [Sec. 4, Rule
57] – This is for damages by reason of the
issuance of the writ.
b. Bond for lifting of writ [Secs. 5 and 12,
Rule 57] – This is to secure the payment of
the judgment to be recovered.
[1 Regalado 709, 2010 Ed.]
Only the defendant or party whose property is
attached may move for its lifting. If the
attachment is proper, the discharge should be
by counter-bond under Sec. 12. [KO Glass v.
Valenzuela, G.R. No. L-48756 (1982)]
Effect of discharge of the attachment
Upon the discharge of the attachment, the
property attached shall be delivered to the
party making the deposit or giving the
counterbond or the person appearing on his
behalf. [2 Riano 44, 2016 Bantam Ed.]
Obviously, such is also the effect when the
discharge was made through a motion alleging
the grounds in Sec. 13, Rule 57.
Effect of dissolution of preliminary
attachment on plaintiff’s attachment bond
a. Dissolution of preliminary attachment upon
security given, or a showing if its irregular
issuance, does not operate to discharge
the sureties on the attachment bond
[Davao Light and Power Co. v. CA, G.R.
No. 93262 (1991)]
• The bond is conditioned that the
applicant will pay all the costs which
may be adjudged to the adverse party
and all damages which he may sustain
by reason of the attachment, if the court
shall finally adjudge that applicant was
not entitled thereto. [Sec. 4, Rule 57]
• Until that determination is made, as to
applicant’s entitlement to attachment,
his bond must stand and cannot be
withdrawn. [Mindanao Savings &
Loan Association Inc v. CA, G.R. No.
84481 (1989)]
Claim for damages on account of improper,
irregular, or excessive attachment
a. When to be filed
1. Before trial, or
U.P. LAW BOC CIVIL PROCEDURE
2. Before appeal is perfected, or
3. Before the judgment becomes
executory
b. Requirements for damages to be awarded
1. Due notice to the attaching party and
his surety or sureties,
2. Setting forth the facts showing the right
of the party to damages and the
amount thereof.
Note: Damages may be awarded only
after the proper hearing, and shall be
included in the judgment on the main
case.
[Sec. 20, Rule 57]
g. Satisfaction of Judgment Out of
Property Attached
If judgment be in favor of the attaching
party
General rule: If judgment be recovered by the
attaching party and execution issue thereon,
the sheriff may cause the judgment to be
satisfied out of the property attached, if it be
sufficient for that purpose, in the following
manner:
a. By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, or so much as shall be necessary
to satisfy the judgment
b. If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff’s hands, or in those of the clerk of
the court
c. By collecting from all persons having in
their possession credits belonging to the
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such credits
and debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over
to the judgment obligee.
The sheriff shall forthwith make a return in
writing to the court of his proceedings under
this section and furnish the parties with copies
thereof. [Sec. 15, Rule 57]
Page 174 of 525
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Exception: Even before judgement is
entered in favor of the attaching party, the
court may order such property to be sold at
public auction in such manner as the court may
direct, and the proceeds of such sale to be
deposited in court to abide the judgment in the
action whenever it shall be made to appear to
the court in which the action is pending, upon
hearing with notice to both parties, that the:
a. Property attached is perishable, or
b. Interests of all the parties to the action will
be subserved by the sale thereof.
[Sec. 11, Rule 57]
If judgement be against the attaching party
All the proceeds of sales and money collected
by the sheriff under the order of attachment,
and all property attached remaining in any such
sheriff’s hands, shall be delivered to the party
against whom attachment was issued. [Sec.
19, Rule 57]
If proceeds from realization of all property
attached are not enough to satisfy
judgement
If such a scenario happens, the Rules of Court
instruct that any balance shall be collected
by the sheriff as upon ordinary execution.
Whenever the judgement shall have been paid,
the sheriff must return to the judgement debtor
any attached property remaining in his hands.
[Sec. 16, Rule 57]
Duration of an attachment lien
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. The lien continues until:
a. The debt is paid, or
b. The sale is had under execution issued on
the judgment, or
c. Until the judgment is satisfied, or
d. The attachment discharged or vacated in
the same manner provided by law. [Lim v.
Sps. Lazaro, G.R. No. 185734 (2013)]
h. Compared with Garnishment
and Levy on Execution
U.P. LAW BOC CIVIL PROCEDURE
Kinds of attachment as to availability and
effects
1. Preliminary attachment - one issued at
the commencement of the action or at any
time before entry of the judgment as
security for the satisfaction of any judgment
that may be recovered in the cases
provided for by the rules; [Sec. 1, Rule 57]
2. Levy on execution - writ issued by the
court after judgment by which the property
of the judgment obligor is taken into
custody of the court before the sale of the
property on execution before the
satisfaction of a final judgment. [Sec. 8,
Rule 39] [1 Regalado 691, 2010 Ed.]
Kinds of attachment as to form and
procedure of attachment:
1. Regular form of attachment – attachment
which refers to attachment of corporeal
property in possession of the party
involved. [1 Regalado 691, 2010 Ed.]
2. Garnishment - A kind of attachment in
which the plaintiff seeks to subject either
the property of the defendant in the hands
of a third person called garnishee, to his
claim or the money which said third person
owes the defendant; [Virata v. Aquino, G.R.
L-35027 (1973)].
4. PRELIMINARY INJUNCTION
a. Definitions and Differences:
Preliminary Injunction,
Temporary Restraining Order,
And Status Quo Ante Order
Preliminary Injunction
Two Kinds:
1. Preliminary Prohibitory Injunction -
commands one to refrain from performing
a particular act or acts.
2. Preliminary Mandatory Injunction -
commands the performance of some
positive act to correct a wrong made in the
past. [Dela Rosa v. Heirs of Valdez, 654
SCRA 467 (2015)]
In both cases, such orders are granted at any
stage of an action prior to the judgement or
final order of the court. [Sec. 1, Rule 58]
Page 175 of 525
REMEDIAL LAW
Purpose
A writ of preliminary injunction is issued by the
court to prevent threatened or continuous
irreparable injury to parties before their
claims can be thoroughly studied and
adjudicated and during the pendency of an
action. [Manila International v. Rivera, 471
SCRA 358 (2005)]
Nature
A preliminary injunction is an equitable
remedy, and one who comes to claim for
equity must do so with clean hands. It is to be
resorted to by a litigant to prevent or preserve
a right where there is a pressing necessity to
avoid injurious consequences which cannot be
remedied under any standard of
compensation. [Sps. Nisce v. Equitable, G.R.
No. 170038 (2012)]
Moreover, an injunctive writ is not a judgement
on the merits of the case. A writ of preliminary
injunction is generally based solely on initial
and incomplete evidence. Thus, the issuance
of a writ of preliminary injunction is
interlocutory in nature. [Recto v. Escaler, 634
SCRA 180 (2010)]
Lastly, the grant or denial of a writ of
preliminary injunction is discretionary
because the assessment and evaluation of
evidence involve findings of fact left to the
court’s discretion. Hence, the exercise of
judicial discretion in injunctive matters must not
be interfered with except when there is
manifest abuse. [2 Riano 53-54, 2016 Bantam
Ed.]
Temporary Restraining Order (TRO)
An order issued to preserve the status quo
until the hearing of the application for a writ
of preliminary injunction because the
injunction cannot be issued ex parte. [Bacolod
Water v. Labayen, 446 SCRA 110 (2004)] By
its nature, it could be considered as a
“provisional remedy within a provisional
remedy” because it is issued to preserve the
status quo for a limited period until the court
decides to issue a writ of preliminary injunction.
[2 Riano 67, 2016 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE
Status Quo Ante Order (SQAO)
Unlike a TRO or a preliminary injunction, a
SQAO is more in the nature of a cease and
desist order, since it neither directs the
undoing or doing of acts as in the case of
prohibitory or mandatory injunctive relief. A
SQAO seeks to only maintain the last, actual,
peaceable, and uncontested state of things
which immediately preceded the controversy.
[Oca v. Custodio, G.R. No. 174996 (2014)]
b. Requisites
Formal requisite for issuance of a writ of
preliminary injunction or a TRO
A preliminary injunction or temporary
restraining order may be granted only
a. Upon verified application, showing facts
entitling the applicant to the relief
demanded, and
b. Unless exempted by the court, the
applicant files with the court where the
action or proceeding is pending, a bond
executed to the party or person enjoined, in
an amount to be fixed by the court, to the
effect that the applicant will pay to such
party or person all damages which he may
sustain by reason of the injunction or
temporary restraining order if the court
should finally decide that the applicant was
not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary
injunction shall be issued.
• If the person enjoined takes exception
to the sufficiency of the bond, and there
is a showing that the applicant’s bond
is insufficient in amount, the injunction
shall be dissolved. [2 Riano 65, 2016
Bantam Ed.]
c. When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint
or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled only
after notice to and in the presence of the
adverse party or the person to be enjoined.
In any event, such notice shall be
preceded, or contemporaneously
accompanied by service of summons,
together with a copy of the complaint or
Page 176 of 525
REMEDIAL LAW
initiatory pleading and the applicant’s
affidavit and bond, upon the adverse party
in the Philippines. However, where the
summons could not be served personally
or by substituted service despite diligent
efforts, or the adverse party is a resident of
the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contem­poraneous
service of summons shall not apply.
d. The application for a temporary
restraining order shall thereafter be acted
upon only after all parties are heard in a
summary hearing which shall be
conducted within twenty-four (24) hours
after the sheriff’s return of service and/or
the records are received by the branch
selected by raffle and to which the records
shall be transmitted immediately. [Sec. 4,
Rule 58]
e. As to a writ of preliminary injunction, the
court must conduct a hearing. A writ of
preliminary injunction cannot be issued
without a prior notice and hearing. [Sec. 5,
Rule 58]
• Note: On the other hand, a TRO can be
issued ex parte pursuant to Sec. 5,
Rule 58. [2 Riano 65, 2016 Bantam
Ed.]
The applicant must establish:
a. The existence of a clear and unmistakable
right that must be protected; that is, right in
esse
b. This right in esse is directly threatened by
an act sought to be enjoined
c. A material and substantial invasion of such
right; and
d. An urgent and paramount necessity for the
writ to prevent serious damage.
[Dulnuan v. Metrobank, G.R. No. 196864
(2015)]
Right in esse
The applicant's right must be clear or
unmistakable, that is, that the right is actual,
clear and positive especially calling for judicial
protection. An injunction will not issue to
protect a right not in esse and which may never
arise or to restrain an act which does not give
U.P. LAW BOC CIVIL PROCEDURE
rise to a cause of action. [Marquez v. Sanchez,
G.R. No. 141849 (2007)]
Irreparable injury
Does not have reference to the amount of
damages that may be caused but rather to the
difficulty of measuring the damages
inflicted. This includes:
a. That degree of wrong of a repeated and
continuing kind which produces hurt,
inconvenience, or damage that can be
estimated only by conjecture, and not by
any accurate standard of measurement.
b. Damage where there is no standard by
which their amount can be measured with
reasonable accuracy
c. A serious charge of, or is destructive to, the
property it affects, either physically or in the
character in which it has been held and
enjoined, or when the property has some
peculiar quality or use, so that its pecuniary
value will not fairly recompense the owner
of the loss thereof.
If full compensation can be obtained, by way of
damages, equity will not favor the remedy of
injunction. [Social Security Commission v.
Bayona, G.R. No. L-13555 (1962)]
c. Kinds of Injunctions; Kinds of
Temporary Restraining Orders
Kinds of Preliminary injunctions
a. Preliminary injunction – an order granted
at any stage of an action or proceeding
prior to the judgment or final order,
requiring a party or a court, agency or a
person to refrain from a particular act or
acts.
b. Preliminary mandatory injunction –
requires the performance of a particular act
or acts [Sec. 1, Rule 58]
A preliminary mandatory injunction may also
issue in cases where the relative
inconvenience bears strongly in the requesting
party’s favor, and where the effect of the
mandatory injunction is to re-establish and
maintain a pre-existing continuing relation
between the parties, which was recently and
arbitrarily interrupted by another party, rather
than to establish a new relationship between
Page 177 of 525
REMEDIAL LAW
and among the parties. [WT Construction, Inc.
v. DPWH, G.R. No. 163352 (2007)]
Kinds of Temporary Restraining Orders
1. 20-day TRO
If it appears from the facts that great or
irreparable injury would result to the applicant
before the matter can be heard, the court in
which the application for preliminary injunction
was made may issue ex parte for a period not
exceeding 20 days from service to the party
sought to be enjoined. [2 Riano 67, 2016
Bantam Ed.]
2. 72-hour TRO
If the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury, the executive judge of a
multi-sala court or the presiding judge of a
single-sala court may issue ex parte a TRO
effective for only 72 hours from issuance, not
from service (the latter being the reckoning
point for the 20-day TRO).
Within this period, a summary hearing to
determine whether to extend the TRO to 20
days must be conducted. The 72-hour period
shall be included in the maximum 20-day
period set by the Rules. [2 Riano 68, 2016
Bantam Ed.]
d. When Writ May Be Issued,
When Writ May Not Be Issued
When: At any stage of an action or proceeding
prior to the judgment or final order. [Sec. 1,
Rule 58]
By whom: By the court where the action or
proceeding is pending. If the action or
proceeding is pending in the CA or in the SC, it
may be issued by said court or any member
thereof. [Sec. 2, Rule 58]
Note: Being preliminary, an order granting a
preliminary injunction need not clearly and
distinctly state the findings of fact and
conclusions of law on which it is based. [UCPB
v. United Alloy Phils. Corp., G.R. No. 152238
(2005)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

When not allowed of during the litigation would probably work

1. Under RA 8975 (An Act to Ensure the injustice to the applicant, or
Expeditious Implementation and c. A party, court, agency or a person is doing,
Completion of Government Infrastructure threatening, or is attempting to do, or is
Projects); procuring or suffering to be done, some act
or acts probably in violation of the rights of
Rationale: Injunctions and restraining the applicant respecting the subject of the
orders tend to derail the implementation action or proceeding, and tending to render
and completion of government the judgment ineffectual. [Sec. 3, Rule 58]
infrastructure projects. [2 Riano 72-73,
2016 Bantam Ed.] f. Grounds for Objection To, or for
the Dissolution of Injunction or
2. Under the Rule of Procedure in Restraining Order
Environmental Cases, no court can issue
a TRO or a preliminary injunction against
a. Upon a showing of its insufficiency
lawful actions of government agencies that
• An application for injunction may be
enforce environmental laws. [Sec. 10, Rule
considered insufficient if it is not
2, Part II, AM No. 09-6-8-SC]
verified and supported by any of the
3. No TRO or injunction in any case
grounds for its issuance under Sec. 3
involving or growing out of a labor
of Rule 58 OR if it is not supported by
dispute shall be issued by any court
the required bond under Sec. 4 of Rule
except as otherwise provided in Arts. 218
58. [2 Riano 82, 2016 Bantam Ed.]
and 264 of the Labor Code. It is the NLRC
b. Other grounds upon affidavits of the
which may grant injunctive relief. [Ravago
party or person enjoined, which may be
v. Esso, 453 SCRA 381 (2005)]
opposed by the applicant also by affidavits
4. No court shall have the authority to grant
c. If it appears after hearing that although the
injunction to restrain the collection of any
applicant is entitled to the injunction or
national internal revenue tax except
restraining order, the issuance or
when special circumstances warrant.
continuance thereof, as the case may
[Sarasola v. Trinidad, 40 Phil. 252 (1919)]
be, would cause irreparable damage to
5. An injunction cannot be issued against
the party or person enjoined while the
consummated acts. The established
applicant can be fully compensated for
principle is that when the events sought to
such damages as he may suffer, and the
be prevented have already happened,
former files a bond in an amount fixed by
nothing more could be enjoined. [Ramos
the court conditioned that he will pay all
Sr. v. CA, 173 SCRA 550 (1989)]
damages which the applicant may suffer by
the denial or the dissolution of the
e. Grounds for Issuance of injunction or restraining order.
Preliminary Injunction • If the bond of the adverse party is found
to be insufficient, the injunction shall be
A preliminary injunction may be granted when granted or restored. [2 Riano 65, 2016
it is established that: Bantam Ed.]
a. The applicant is entitled to the relief
demanded, and the whole or part of such Note: If it appears that the extent of the
relief consists in restraining the preliminary injunction or restraining order
commission or continuance of the act or granted is too great, it may be modified.
acts complained of, or in requiring the [Sec. 6, Rule 58]
performance of an act or acts, either for a
limited period or perpetually
b. The commission, continuance or non-
performance of the act or acts complained

Page 178 of 525

U.P. LAW BOC CIVIL PROCEDURE
g. Duration of Temporary
Restraining Orders
Rule on non-extendibility
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the TRO is
deemed automatically vacated.
The effectivity of a TRO is not extendible
without need of any judicial declaration to that
effect, and no court shall have authority to
extend or renew the same on the same ground
for which it was issued. [Sec. 5, Rule 58]
Duration differs as per court issuing the
TRO
1. If issued by the RTC - The rule against
non-extendibility of the 20-day
effectiveness of a TRO is absolute. [2
Riano 68, 2016 Bantam Ed.]
2. If issued by the CA - A TRO may be
issued by the CA or any member thereof. If
so issued, it shall be effective for 60 days
from service on the party or person sought
to be enjoined. A TRO issued by the CA
has a non-extendible lifetime of 60 days
and automatically expires on the 60th day
without need of judicial declaration. [2
Riano 70, 2016 Bantam Ed.]
3. If issued by the SC - A TRO issued by the
SC shall be effective until further orders.
[2 Riano 71, 2016 Bantam Ed.]
When main case to be decided
The trial court, the CA, the Sandiganbayan, or
the CTA that issued the preliminary injunction
against a lower court, board, officer, or quasi-
judicial agency shall decide the main case or
petition within 6 months from the issuance
of the writ. [Sec. 5, Rule 58]
h. Rule on Prior or
Contemporaneous Service of
Summons in Relation to
Attachment
General rule: When an application for a writ
of preliminary injunction or a temporary
restraining order is included in a complaint or
Page 179 of 525
REMEDIAL LAW
any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after
notice to and in the presence of the adverse
party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied by
service of summons, together with a copy of
the complaint or initiatory pleading and the
applicant’s affidavit and bond, upon the
adverse party in the Philippines.
Exceptions: The requirement of prior or
contemporaneous service of summons
shall not apply:
a. The summons could not be served
personally or by substituted service despite
diligent efforts, or
b. The adverse party is a resident of the
Philippines temporarily absent therefrom or
is a nonresident thereof
[Sec. 4, Rule 58]
Grant of final injunction
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined, the court
shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or
acts or confirming the preliminary mandatory
injunction. [Sec. 9, Rule 58]
5. RECEIVERSHIP
Receiver
A person appointed by the court on behalf of
all the parties to the action for the purpose of
preserving and conserving the property in
litigation and preventing its possible
destruction or dissipation if it were left in the
possession of any of the parties. [Normandy v.
Duque, G.R. No. L-25407 (1969)]
A receiver is not an agent of any party to the
action. He is an officer of the court exercising
his functions in the interest of neither plaintiff
nor defendant but for the common benefit of all
the parties in interest. [2 Riano 87-88, 2016
Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE
Purpose
Receivership, like injunction, may be the
principal action itself or just an ancillary
remedy. [1 Regalado 745, 2010 Ed.]
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights
of the parties during the pendency of the main
action, during the pendency of an appeal, or as
an aid in the execution of a judgment when the
writ of execution has been returned unsatisfied.
[Ysasi v. Fernandez, G.R. L-28593 (1968); 2
Riano 129, 2012 Ed.]
Unlike the other provisional remedies which
can be availed of only before final judgment,
receivership may be resorted to even after
the judgment has become final and
executory, under Sec. 1(c), Rule 59 in relation
to Sec. 41, Rule 39. [1 Regalado 747, 2010
Ed.]
The receivership under Rule 59 is directed to
the property which is the subject of the
action and does not refer to the receivership
authorized under banking laws and other rules
or laws. Rule 59 presupposes that there is an
action and that the property subject of the
action requires its preservation. [2 Riano 128,
2012 Ed.]
The guiding principle is the prevention of
imminent danger to the property. If an action
by its nature does not require such protection
or preservation, said remedy cannot be applied
for and granted. [Commodities Storage v. CA,
G.R. No. 125008 (1997)]
a. Cases When Receiver May Be
Appointed
a. When it appears from the verified
application, and such other proof as the
court may require, that the party applying
for the appointment of a receiver has an
interest in the property or fund which is the
subject of the action or proceeding, and
that such property or fund is in danger of
being lost, removed, or materially
injured unless a receiver be appointed to
administer and preserve it;
Page 180 of 525
REMEDIAL LAW
b. When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
being wasted or dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage debt,
or that the parties have so stipulated in the
contract of mortgage;
c. After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judg­ment, or
to aid execution when the execution has
been returned unsatisfied or the judgment
obligor refuses to apply his property in
satisfaction of the judgment, or otherwise
to carry the judgment into effect;
d. Whenever in other cases it appears that
the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing
of the property in litigation.
[Sec. 1, Rule 59]
Specific cases
a. If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership [Art. 101, FC]
b. The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of,
or any interference with, the property of the
judgment obligor not exempt from
execution [Sec. 41, Rule 39]
c. After the trial court loses jurisdiction over
the case (in appeals by notice of appeal) or
only over the subject matter (in appeals by
record on appeal), and prior to the
transmittal of the original record or the
record on appeal, the court may issue
orders for the protection and preservation
of the rights of the parties [Sec. 9, Rule 41],
including necessarily the authority to
appoint a receiver who has the power to
take and keep possession of the property
in controversy [Acuña v. Calauag, G.R. No.
L-10736 (1957)]
d. After final judgment, a receiver may be
appointed as an aid to the execution of
U.P. LAW BOC CIVIL PROCEDURE
judgment [Philippine Trust Company v.
Santamaria, G.R. 31951 (1929)]
e. Appointment of a receiver over the property
in custodia legis may be allowed when it is
justified by special circumstances, as when
it is reasonably necessary to secure and
protect the rights of the real owner [Dolar v.
Sundiam, G.R. No. 27361 (1971)]
Who appoints a receiver
a. Court where the action is pending
b. CA
c. SC
d. During the pendency of an appeal, the
appellate court may allow an application for
the appointment of a receiver to be filed in
and decided by the court of origin
[Sec. 1, Rule 59]
b. Requisites
Requisites for appointment of a receiver
a. Verified application filed by the party
requesting for the appointment of the
receiver [Sec. 1, Rule 59]
b. The grounds stated in Sec. 1, Rule 59
enumerated in Part D.1 of this (Provisional
Remedies) reviewer.
c. Application must be with notice and must
be set for hearing;
d. Before appointing a receiver, the court
shall require the applicant to post a bond
executed to the party against whom the
application is presented, in an amount to
be fixed by the court. [Sec. 2, Rule 59]
e. Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully and shall file a bond,
executed to such person and in such sum
as the court may direct [Sec. 4, Rule 59]
c. Requirements Before Issuance
of an Order
Oath and bond of receiver
Before entering his duties, the receiver shall
be sworn to perform them faithfully, and
shall file a bond, executed to such person and
in such sum as the court may direct, to the
effect that he will faithfully discharge his duties.
Page 181 of 525
REMEDIAL LAW
d. General Powers of a Receiver
Powers of a receiver
Subject to the control of the court in which the
action or proceeding is pending, a receiver
shall have the power to
a. Bring and defend, in such capacity, actions
in his own name
b. Take and keep possession of the property
in controversy
c. Receive rents
d. Collect debts due to himself as receiver or
to the fund, property, estate, person, or
corporation of which he is the receiver
e. Compound for and compromise the same
f. Make transfers
g. Pay outstanding debts
h. Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
i. Generally to do such acts respecting the
property as the court may authorize
j. Invest funds in his hands, only by order of
the court upon the written consent of all the
parties
[Sec. 6, Rule 59]
Liability for refusal or neglect to deliver
property to receiver
a. May be punished for contempt, and
b. Shall be liable to the receiver for the money
or the value of the property and other things
so refused or neglected to be surrendered,
together with all damages that may have
been sustained by the party or parties
entitled thereto as a consequence of such
refusal or neglect
[Sec. 7, Rule 59]
Remedies against the receiver
An aggrieved party may:
1. Take the matter into the court which
appointed the receiver and ask either for an
accounting or take some other proceeding,
and ask for consequent judgment on the
acts complained of; or
2. Ask for leave of court to bring him an action
directly
U.P. LAW BOC CIVIL PROCEDURE
Note: Any action filed against a receiver
without the required judicial authority may
be dismissed through the allegation of
failure to comply with a condition precedent
as an affirmative defense to the action. [2
Riano 92, 2016 Bantam Ed.]
[De la Riva v. Molina Salvador, G.R. L-10106
(1915)]
e. Two Kinds of Bonds
a. Applicant’s bond
1. Executed to the party against whom
the application is presented
2. In an amount to be fixed by the court
3. To the effect that the applicant will pay
such party all damages he may sustain
by reason of the appointment in case
the applicant shall have procured such
without sufficient cause the court may,
in its discretion, at any time after the
appointment, require an additional
bond as further security for such
damages. [Sec. 2, Rule 59]
b. Receiver’s bond
1. Before entering upon his duties
2. Executed to such person and
3. In such sum as the court may direct
4. To the effect that he will faithfully
discharge his duties in the action or
proceeding and obey the orders of the
court. [Sec. 4, Rule 59]
Counterbond on opposition for
appointment of a receiver
The party against whom the application for
appointment of a receiver may oppose the
application or ask for the discharge of a
receiver already appointed. To make a
successful opposition, such party should file a
bond:
a. Executed to the applicant,
b. In an amount to be fixed by the court,
c. To the effect that such party will pay the
applicant all damages he may suffer by
reason of acts, omissions, or other matters
specified in the application as ground for
such appointment. [Sec. 3, Rule 59]
Page 182 of 525
REMEDIAL LAW
f. Termination of Receivership
Ground
The necessity for a receiver no longer exists.
[Sec. 8, Rule 59]
Procedure
1. The court shall determine that the
necessity for a receiver no longer exists
a. Motu proprio or
b. On motion of either party
2. Due notice should be given to all interested
parties
3. Hearing shall be conducted
4. After due notice and hearing, the court
shall
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and
other property in his possession to the
person adjudged to be entitled to
receive them, and
c. Order the discharge of the receiver
from further duty as such
d. Allow the receiver such reasonable
compensation as the circumstances of
the case warrant, to be taxed as costs
against the defeated party, or
apportioned, as justice requires.
[Sec. 8, Rule 59]
6. REPLEVIN
Replevin is the provisional remedy seeking for
the possession of the property prior to the
determination of the main action for
replevin. [BA Finance Corp. v. CA, G.R. No.
102998 (1996)]
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully detained
by a person. In this sense, it is a suit in itself.
[BA Finance Corp. v. CA, G.R. No. 102998
(1996)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Preliminary judgment [Sec. 1, Rule

Replevin
attachment 57]
The purpose is to The purpose is to have Bond is double
recover personal the property put in the the value of the Bond is fixed by the
property capable custody of the court to property [Sec. court [Sec. 4, Rule 57]
of manual secure the satisfaction 2(d), Rule 60]
delivery from the of the judgment that
defendant [1 may be rendered in a. When May Writ Be Issued
Regalado 753, favor of the plaintiff
2010 Ed.] [Sec. 1, Rule 57] A party praying for the recovery of possession
The property of personal property may, at the
either belongs to commencement of the action or at any time
The property does not before answer, apply for an order for the
the plaintiff or one
belong to the plaintiff delivery of such property to him. [Sec. 1, Rule
over which the
but to the defendant [1 60]
plaintiff has a
Regalado 753, 2010
right of Scope of Title of Applicant
Ed.]
possession [Sec. An applicant need not be the holder of legal
2, Rule 60] title to the property in question. It is in the
May be sought nature of a possessory action. It is sufficient
only when the Available even if that at the time he applied for a writ of replevin
principal action is recovery of property is he is found to be entitled to a possession
for the recovery only incidental to the thereof. [Chiao Liong v. CA, G.R. No. 106251
of personal relief sought [1 (1993)]
property [1 Regalado 753, 2010
General rule: Primarily, the action of replevin
Regalado 753, Ed.]
determines nothing more than the right of
2010 Ed.]
possession.
Can be sought
only when the Exception: When the title to the property is
defendant is in May be resorted to even distinctly put in issue by the defendant's plea,
actual or if property is in the question of ownership may be resolved in
constructive possession of a third the same proceeding. [Chiao Liong v. CA, G.R.
possession of the person [1 Regalado No. 106251 (1993)]
property [1 753, 2010 Ed.]
Regalado 753, Where replevin writ was improperly
2010 Ed.] implemented
Cannot be The proper remedy to an improperly
implemented writ of replevin is to file a motion
availed of when
to quash. [Siy v. Tomlin, G.R. No. 205998
property is in
Can be availed of when (2017)]
custodia legis
property is in custodia
[Montesa v. But failure of a party to file a motion to quash
legis [Sec. 7, Rule 57]
Manila Cordage. does not prevent a party from assailing the
G.R. L-44537 improper service via a petition for certiorari.
(1978)] The trial court is deemed to have acted without
Available before or in excess of its jurisdiction if improperly
Available from served. It must restore the parties to their
defendant
commencement but former positions by returning the seized
answers [Sec. 1,
before entry of
Rule 60]

Page 183 of 525

U.P. LAW BOC CIVIL PROCEDURE
property and by discharging the replevin bond.
[Rivera v. Vargas, G.R. No. 165895 (2009)]
b. Requisites
a. The applicant must show by his own
affidavit or that of some other person who
personally knows the facts the items stated
in Part F.3 (Affidavit and bond; redelivery
bond)
b. The applicant must also give a bond,
called a replevin bond.
[Sec. 2, Rule 60]
Upon the filing of such affidavit and approval of
the bond, the court shall issue an order and the
corresponding writ of replevin describing the
personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to
take such property into his custody [Sec. 3,
Rule 60]
c. Affidavit and Bond; Redelivery
Bond
Contents of the affidavit:
The affidavit shall show
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;
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.
[Sec. 2, Rule 60]
Applicant’s bond (Replevin Bond)
a. Executed to the adverse party
b. Double the value of the property as stated
in the affidavit
c. Conditions:
Page 184 of 525
REMEDIAL LAW
1. The return to of property to adverse
party if such return be adjudged, and
2. The payment to adverse party of such
sum as he may recover from the
applicant in the action.
[Sec. 2, Rule 60]
Return of property
If the adverse party objects to the sufficiency
of the
a. Applicant’s bond, or
b. Surety or sureties thereon,
he cannot immediately require the return of the
property, but he may, at any time before the
delivery of the property to the applicant, require
the return thereof. [Sec. 5, Rule 60]
How return of property may be required;
Redelivery bond
File a bond with the court where the action is
pending. Such shall be:
a. Executed to the applicant,
b. In double the value of the property as
stated in the applicant’s affidavit
c. Conditions
1. The delivery thereof to the applicant, if
such delivery be adjudged, and
2. The payment of such sum to him as
may be recovered against the adverse
party, and by serving a copy of such
bond on the applicant.
[Sec. 5, Rule 60]
d. Sheriff’s Duty in The
Implementation of The Writ;
When Property Is Claimed by
Third Party
i. Sheriff’s Duty in Implementation
1. Upon receiving the order, the sheriff must
a. Serve a copy thereof on the adverse
party, together with a copy of the
application, affidavit and bond, and
b. Forthwith take the property, if it be in
the possession of the adverse party, or
his agent, and retain it in his custody.
2. If the property or any part thereof be
concealed in a building or enclosure, the
sheriff must
U.P. LAW BOC CIVIL PROCEDURE
a. Demand its delivery, and
b. If it be not delivered, he must cause the
building or enclosure to be broken
open and take the property into his
possession.
3. After the sheriff has taken possession of
the property, he must
a. Keep it in a secure place and
b. Shall be responsible for its delivery to
the party entitled thereto upon
receiving his fees and necessary
expenses for taking and keeping the
same.
[Sec. 4, Rule 60]
Delivery of the property
The property shall be delivered to the
applicant,
1. If within 5 days after the taking of the
property by the sheriff, the adverse party
does not object to the sufficiency of
a. the bond, or
b. of the surety or sureties thereon; or
2. If the adverse party so objects and the
court affirms its approval of the applicant’s
bond or approves a new bond, or
3. If the adverse party requires the return of
the property but his bond (redelivery bond)
is objected to and found insufficient and he
does not forthwith file an approved bond,
If for any reason the property is not delivered
to the applicant, the sheriff must return it to the
adverse party. [Sec. 6, Rule 60]
ii. When Property Claimed by Third
Party
If the property taken is claimed by any person
other than the party against whom the writ of
replevin had been issued or his agent, the
sheriff shall not be bound to keep the
property under replevin or deliver it to the
applicant if:
1. The third party makes an affidavit of his
title or right to the possession
2. Stating the grounds therefor, and
3. Serves such affidavit upon the sheriff while
he has possession of the property and a
copy thereof upon the applicant.
Page 185 of 525
REMEDIAL LAW
Unless the applicant or his agent, on demand
of said sheriff, shall file a bond approved by
the court to indemnify the third-party claimant
in a sum not less than the value of the property
under replevin as provided in Sec. 2, Rule 60.
• No claim for damages for the taking or
keeping of the property may be
enforced against the bond unless the
action therefor is filed within 120 days
from the date of the filing of the bond.
Note: In case of disagreement as to such value,
the court shall determine the same.
[Sec. 7, Rule 60]
Judgment
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall render
judgment for the delivery of:
a. The property itself to the party entitled to
the same, or
b. Its value in case delivery cannot be made,
and
c. For such damages as either party may
prove, with costs.
[Sec 9, Rule 60]
Recovering damages on an applicant’s
bond
Requirements
a. The defendant­ claimant has secured a
favorable judgment the main action,
meaning that the plaintiff has no cause of
action and was not entitled to the
replevin;
b. The application for damages, showing
claimant’s right thereto and the amount
thereof, be filed in the same action before
trial or before appeal is perfected or before
the judgment becomes executory;
c. Due notice be given to the other party and
his surety or sureties, notice to the principal
not being sufficient;
d. A proper hearing and the award for
damages should be included in the final
judgment.
[DBP v. Carpio, G.R. No. 195450 (2017)]
Note: DBP v. Carpio states that the same
requirements apply when recovering
U.P. LAW BOC CIVIL PROCEDURE
damages under other provisional remedies,
as provided in Sec. 20, Rule 57; Sec. 8, Rule
58 and Sec. 9, Rule 59.
Even where the judgment is that the defendant
is entitled to the property, but no order was
made requiring the plaintiff to return it or
assessing damages in default of return, there
could be no liability on the part of the sureties
until judgment was entered that the property
should be restored. [Sapugay et. al. v. CA, G.R.
No. 86792 (1990)]
7. PROVISIONAL REMEDIES
AND INTERIM RELIEFS
UNDER SPECIAL LAWS AND
RULES
a. Provisional Remedies of the
Family Courts
1.
R.A. 8369 provides for certain provisional
remedies described in the law as special
provisional remedies. [2 Riano 111, 2016
Bantam Ed.]
Restraining order
In case of violence among the immediate
members of the family living in the same
domicile, the Family Court may issue a
restraining order against the accused or
defendant if the complainant or victim files a
verified application for relief from abuse. [Sec.
7, RA 8369]
Temporary custody
In all civil actions for the custody of children,
the court may order the temporary custody of
the children. [Sec. 7, R.A. 8369]
Support pendente lite
In all civil actions for support, the court may
also order support pendente lite, deduction
from the salary, and use of the conjugal home.
[Sec. 7, R.A. 8369]
Page 186 of 525
REMEDIAL LAW
b. Human Security Act
Seizure of assets
A seizure and sequestration of assets of
certain persons are authorized including those
of a person “suspected” of terrorism as defined
in the law. [Sec. 39]
Travel restriction
The right to travel of the person charged may
be subjected to restrictions even before
judgement under certain conditions. [Sec. 26]
Examination of bank deposits
The bank deposits, accounts, and records,
among others, of a person charged or
suspected of a crime defined under the HSA
may be examined under certain conditions, the
provisions of the Secrecy of Bank Deposits
Law notwithstanding. [Sec. 27]
Anti-violence Against Women and Children
Act
Certain interim reliefs may be availed of under
R.A. 9262 even before or in the absence of a
decree of legal separation, annulment or
declaration of absolute nullity of marriage and
for the protection of women and their children.
[2 Riano 114-115, 2016 Bantam Ed.]
Protection order
A protection order is an order issued for the
purpose of preventing further acts of violence
against a woman or her child as specified in the
law and granting the necessary relief.
The protection orders under R.A. 9262 are of
two kinds, namely:
1. Temporary Protection Order - issued by
the court on the date of filing of the
application after ex parte determination
that such order should be issued. A court
may grant in a TPO any, some, or all of the
reliefs mentioned in the Act and shall be
effective for 30 days.
2. Barangay Protection Order - issued by
the Punong Barangay or any available
Barangay Kagawad ordering the
perpetrator to desist from committing acts
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

described in the law. When issued, they Lifting of PHDO

shall be effective for 15 days.
[2 Riano 115-116, 2016 Bantam Ed.]
c. Anti-Money Laundering Act
Freezing of monetary instrument or
property
The CA, upon application ex parte by the Anti-
Money Laundering Council (AMLC) and after
determination that probable cause exists that
any monetary instrument or property is in any
way related to money laundering, may issue a
freeze order effective immediately. [Sec. 10]
Authority to inquire into bank deposits
The AMLC may inquire into or examine any
particular deposit or investment with any
banking institution or non-bank financial
institution upon order of any competent court in
cases of violation of this Act, when it has been
established that there is probable cause that
the deposits or investments are related to
unlawful activities as defined in this law. [Sec.
11]
d. Financial Rehabilitation and
Insolvency Act
In order to have the PHDO temporarily lifted,
the respondent may:
a. File a verified motion
b. Based on meritorious grounds:
1. There is doubt that probable cause
exists in issuing the PHDO, or
2. It is shown that he is not a flight risk
c. Post a bond. [Sec. 7]
E. SPECIAL CIVIL
ACTIONS
1. NATURE OF SPECIAL CIVIL
ACTIONS
Special civil actions are generally brought or
filed for the same purpose as a civil action, that
is, for a party to sue another for the
enforcement of a right, or the prevention or
redress of a wrong. [1 Riano 495, 2007 Ed.]
A special civil action is governed by the rules
for ordinary civil actions, subject to the special
rules prescribed for a special civil action. [Sec.
3(a), Rule 1]

Upon the issuance of a Commencement Order,

such shall include a Stay or Suspension
2. DISTINGUISH: ORDINARY
Order which shall: CIVIL ACTIONS AND
1. Suspend all actions or proceedings, in SPECIAL CIVIL ACTIONS
court or otherwise, for the enforcement of
claims against the debtor; Ordinary civil
2. Suspend all actions to enforce any Special civil action
action
judgment, attachment or other provisional
A party sues A party also files the
remedies against the debtor;
another for the action for the
3. Prohibit the debtor from selling,
encumbering, transferring or disposing in enforcement or enforcement or
any manner any of its properties except in protection of a right protection of a right or
the ordinary course of business; and or prevention or prevention or redress
4. Prohibit the debtor from making any redress of a wrong. of a wrong. [1 Riano
payment of its liabilities outstanding as of [Sec. 3(a), Rule 1] 495, 2007 Ed.]
the commencement date except as may be Also governed by
provided herein. [Sec. 16(q)] Governed by the ordinary rules but
ordinary rules. subject to specific
e. Precautionary Hold Departure [Sec. 3, Rule 1] rules prescribed. [Sec.
Orders 3, Rule 1]

Page 187 of 525

U.P. LAW BOC CIVIL PROCEDURE
Must be based on a Some special civil
cause of action actions do not have to
which means that be based on a cause
there must have of action (e.g.
been a violation of interpleader). [1
plaintiff’s rights. Regalado 771, 2010
[Sec. 1, Rule 2] Ed.]
Venue is
determined by Venue is generally
either the governed by the
residence of the general rules on
parties when action venue, except as
is personal or by otherwise indicated by
the location of the special rules. [1
property when the Regalado 771, 2016
action is real. Ed.]
[Secs. 1-2, Rule 4]
Initiated by complaint
Initiated by
or petition. [1
complaint. [Sec. 5,
Regalado 770, 2010
Rule 1]
Ed.]
Some special civil
actions can only be
filed in the MTC (e.g.
forcible entry and
It may be filed unlawful detainer)
initially either in the while there are some
MTC or the RTC. which can NOT be
commenced in the
MTC (e.g. certiorari).
[1 Regalado 771,
2010 Ed.]
3. JURISDICTION AND VENUE
Jurisdiction over special civil actions is
determined by the Constitution [e.g. Sec. 5, Art.
VIII, for the Supreme Court] and statutes (e.g.
B.P. 129).
Venue is a procedural matter and generally set
by the Rules of Court. Hence, the venue of civil
actions is determined by the general rules on
venue, unless otherwise subject to special
Page 188 of 525
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rules for special civil actions (e.g. quo
warranto). [1 Regalado 771, 2010 Ed.]
4. INTERPLEADER
Definition
An interpleader is a special civil action filed by
a person against whom two conflicting claims
are made upon the same subject matter and
over which he claims no interest whatsoever,
or if he has an interest, it is one which, in whole
or in part, is not disputed by the claimants.
[Sec. 1, Rule 62]
Purpose of the remedy
1. To compel the conflicting claimants to
interplead and litigate their several claims
among themselves. [Sec. 1, Rule 62]
2. Not to protect a person against double
liability but to protect him from double
vexation in respect of one liability. [Beltran
v. PHHC, G.R. No. L-25138 (1969)
Interpleader vs. Intervention
Interpleader Intervention
Ancillary action, i.e.
Original action there is a pending
action
Intervenor claims an
interest that is
Plaintiff either has
adverse to at least
1. No interest or;
one of the existing
2. An interest in the
parties, or will be
subject matter
adversely affected
undisputed by
by judgment in favor
the other parties
of either of the
existing parties
Defendants to a
complaint-in-
Defendants are sued
intervention are
to be impleaded
parties to a pending
suit
[1 Regalado 321, 2010 Ed.]
a. Requisites for Interpleader
a. There must be 2 or more claimants with
adverse or conflicting interest;
U.P. LAW BOC CIVIL PROCEDURE
b. The conflicting claims involves the same
subject matter;
c. The conflicting claims are made against
the same person; and
d. The plaintiff has no claim upon the subject
matter of the adverse claims or if he has
an interest at all, such interest is not
disputed by the claimants. [Sec. 1, Rule
62]
b. When to File
General rule: An action for Interpleader should
be filed within a reasonable time after a
dispute has arisen without waiting to be sued
by either of the contending parties. Otherwise,
it may be barred by laches. [Wack Wack Golf &
Country Club v. Lee Won, G.R. No. L-23851
(1976)]
Exception: Where the stakeholder acts with
reasonable diligence in view of environmental
circumstances, the remedy is not barred.
[Wack Wack Golf & Country Club v. Lee Won,
G.R. No. L-23851 (1976)]
Who may file
The person against whom the conflicting
claims are made and claims no interest in the
subject matter. [Sec. 1, Rule 62]
Procedure
Filing of an action against the conflicting
claimants to compel them to interplead and
litigate their several claims among
themselves [Sec. 1, Rule 62]
↓ Rule 1 as well, the grounds for an allowable
Court order upon the filing of the complaint
requiring the conflicting claimants to
interplead with one another. If the interests
of justice so require, the court may direct in
such order that the subject matter be paid or
delivered to the court [Sec. 2, Rule 62]
↓ Determination of the claimants’ respective
Summons served upon the conflicting
claimants, together with a copy of the
complaint and order [Sec. 3, Rule 62]
↓
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Answer of each claimant setting forth his
claim within 15 days from service of the
summons upon him, serving a copy thereof
upon each of the other conflicting claimants
who may file their reply thereto as provided
by the ROC.
Counterclaims, cross-claims, third-party
complaints and responsive pleadings
thereto, as provided by the ROC, may be
filed by the parties in an interpleader action.
[Sec. 5, Rule 62]
OR
Motion to dismiss filed by each claimant
within the time for filing an answer on the
ground of impropriety of the interpleader
action or on other appropriate grounds
specified in Rule 16. The period to file the
answer shall be tolled and if the motion is
denied, the movant may file his answer
within the remaining period, but which shall
not be less than 5 days in any event,
reckoned from notice of denial [Sec. 4, Rule
62]
Note: Even if a motion to dismiss is now a
prohibited pleading under the Amended
Rules, it is submitted that a motion to
dismiss can still be filed on the basis of
the impropriety of an interpleader, even if
such ground is not among those listed for an
allowable motion to dismiss under Sec. 12,
Rule 15. This is because the rules of
ordinary civil actions are subject to the
special rules prescribed for a special civil
action. [Sec. 3(c), Rule 1] In light of Sec. 3(c),
motion to dismiss should likewise be allowed
as proper grounds for a motion to dismiss an
interpleader. [see Sec. 12(a)(1-3), Rule 15]
↓
Pre-trial [Sec. 6, Rule 62]
↓
rights and adjudicate their several claims
[Sec. 6, Rule 62]
U.P. LAW BOC CIVIL PROCEDURE
Effect of failure to answer
If any claimant fails to plead within the time
herein fixed, the court may, on motion,
a. Declare him in default and
b. Render judgment barring him from any
claim in respect to the subject matter.
[Sec. 5, Rule 62]
c. Dismissal
Proper Grounds to Dismiss an Interpleader
As mentioned above, the following are
submitted to be the allowable grounds for a
motion to dismiss an interpleader under the
Amended Rules, to wit:
1. Impropriety of Interpleader [Sec. 4, Rule
62]
2. Allowable grounds for a motion to dismiss,
namely:
a. Lack of jurisdiction over the subject
matter
b. Litis pendentia
c. Res judicata
d. Prescription [Sec. 12(a), Rule 15]
5. DECLARATORY RELIEFS
AND SIMILAR REMEDIES
Two types of actions under Rule 63
1. Petition for declaratory relief, and
2. Similar remedies
a. Action for reformation of an instrument;
b. Action to quiet title or remove clouds
therefrom, and
c. Action to consolidate ownership under
Art. 1607, CC
[Sec. 1, Rule 63]
Definition
Declaratory relief is an action by any person
interested in a deed, will, contract or other
written instrument, executive order or
resolution, to determine any question of
construction or validity arising from the
instrument, executive order or regulation, or
statute, and for a declaration of his rights and
duties thereunder. [Sec. 1, Rule 63; Jumamil v.
Cafe, G.R. No. 144570 (2005)]
Page 190 of 525
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The only issue that can be raised in such a
petition is the question of construction or
validity of provisions in an instrument or
statute. Corollary is the general rule that such
an action must be justified, as no other
adequate relief is available. [2 Riano 142,
2016 Bantam Ed.]
Purpose
To secure an authoritative statement of the
rights and obligations of the parties under a
statute, deed, contract, etc. for their guidance
in its enforcement or compliance and not to
settle issues arising from its alleged breach.
[Tambunting v. Sumabat and Baello, G.R. No.
144101 (2005)]
Subject matter of Petition for Declaratory
Relief
The subject matter in a petition for declaratory
relief is any of the following:
1. Deed
2. Will
3. Contract or other written instrument
4. Statute
5. Executive order or regulation
6. Ordinance, or
7. Any other government regulation.
[Sec. 1, Rule 63]
Note: The enumeration is exclusive. Hence,
an action not based on any of those
enumerated cannot be the proper subject of
declaratory relief. [Mangahas v. Paredes, G.R.
No. 157866 (2007)]
Where to File Declaratory Relief
Jurisdiction
General Rule: Exclusive and original
jurisdiction is with the RTC since the subject in
a petition for declaratory relief is incapable of
pecuniary estimation. [Sec. 19, B.P.129, as
amended by R.A. 7691].
The SC has no original jurisdiction over these
petitions, only appellate jurisdiction [Liga ng
mga Barangay National v. City Mayor of
Manila, G.R. No. 154599 (2004)]
U.P. LAW BOC CIVIL PROCEDURE
Exception: Where the action is a proceeding
similar to declaratory relief (e.g. quieting of title
to real property), jurisdiction will depend on the
assessed value of the property. [Malana v.
Tappa, G.R. No. 181303 (2009)]
Venue: General rule on venue applies, see
Rule 4.
a. Who May File Action
Any person:
a. Interested under a deed, will, contract or
other written instrument,
b. Whose rights are affected by a statute,
executive order or regulation, ordinance, or
any other governmental regulation, and
c. Who files before the breach or violation
thereof.
[Sec. 1, Rule 63]
Parties to the action
a. All persons who have or claim any
interest which would be affected by the
declaration [Sec. 2, Rule 63]
b. In any action which involves the validity of
a statute, executive order or regulation, or
any other governmental regulation, the
Solicitor General shall be notified by the
party assailing the same and shall be
entitled to be heard upon such question
[Sec. 3, Rule 63]
c. In any action involving the validity of a local
government ordinance, the
corresponding prosecutor or attorney
of the local governmental unit involved
shall be similarly notified and entitled to be
heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall
also be notified and entitled to be heard
[Sec. 4, Rule 63]
Note: Non-joinder of interested persons is not
a jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules. [Baguio
Citizens Action v. City Council of Baguio, G.R.
No. L-27247 (1983)]
Page 191 of 525
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b. Requisites
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.
[Republic v. Roque, G.R. No. 204603 (2013)]
A justiciable controversy refers to an existing
case or controversy appropriate or ripe for
judicial determination, not one that is
conjectural or merely anticipatory [Velarde v.
Social Justice Society, G.R. No. 159357
(2004)]
c. When Court May Refuse To
Make Judicial Declaration
General Rule: The court, motu proprio or upon
motion, may refuse to exercise the power to
declare rights and to construe instruments in
any case where a decision would not
terminate the uncertainty or controversy
which gave rise to the action, or in any case
where the declaration or construction is not
necessary and proper under the
circumstances.
Exception: Actions falling under the 2nd par of
Sec. 1, Rule 63
a. An action for the reformation of an
instrument, recognized under Articles
1359 to 1369 of the Civil Code;
b. An action to quiet title, authorized by
Articles 476 to 481 of the Civil Code; and
U.P. LAW BOC CIVIL PROCEDURE
c. An action to consolidate ownership
required by Article 1607 of the Civil Code in
a sale with a right to repurchase.
[Sec. 5, Rule 63]
d. Conversion to Ordinary Action
The action may be converted into an ordinary
action if:
a. Before the final termination of the case,
b. A breach or violation of an instrument or a
statute, executive order, regulation,
ordinance, or any other governmental
regulation should take place.
Note: The parties shall be allowed to file such
pleadings as may be necessary or proper.
[Sec. 6, Rule 63]
A petition for declaratory relief is filed before
the occurrence of any breach or violation of the
deed, contract, statute, ordinance or executive
order or regulation. It will not prosper when
brought after a contract or a statute has already
been breached or violated. If there has
already been a breach, the appropriate
ordinary civil action and not declaratory relief
should be filed [City of Lapu-Lapu v. PEZA,
G.R. No. 184203 (2014)]
e. Proceedings Considered as
Similar Remedies
These remedies are considered similar to
declaratory relief because they also result in
the adjudication of legal rights of the litigants,
often without the need of execution to carry the
judgment into effect:
a. An action for the reformation of an
instrument, recognized under Articles
1359 to 1369 of the Civil Code;
b. An action to quiet title, authorized by
Articles 476 to 481 of the Civil Code; and
c. An action to consolidate ownership
required by Article 1607 of the Civil Code in
a sale with a right to repurchase.
[Malana v. Tappa, G.R. No. 181303 (2009)]
However, a distinction must be made between
these proceedings and an action for
Page 192 of 525
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declaratory relief because of Sec. 5, Rule 63 on
when the court’s action on such a petition is
discretionary.
i. Reformation of an Instrument
Definition
Reformation is a remedy in equity, whereby a
written instrument is made or construed so as
to express or conform to the real intention of
the parties, where some error or mistake has
been committed. [Multi-Ventures Capital v.
Stalwart Management Services Corp., G.R.
No. 157439 (2007)]
What are the requisites for reformation?
1. There must have been a meeting of the
minds of the parties to the contract;
2. The instrument does not express the true
intention of the parties; and
3. Failure of the instrument to express the true
intention of the parties is due to mistake,
fraud, inequitable conduct or accident.
[Multi-Ventures Capital v. Stalwart
Management Services Corp., G.R. No. 157439
(2007)]
Burden of proof
The onus probandi is upon the party who
insists that the contract should be reformed.
[Multi-Ventures Capital v. Stalwart
Management Services Corp, G.R. No. 157439
(2007)]
Prescriptive period
In an action for reformation, the plaintiff has 10
years within which to bring it from the time the
right of action accrued. [Veluz v. Veluz, G.R.
No. L-23261 (1968)]
CIVIL CODE PROVISIONS ON THE
REFORMATION OF AN INSTRUMENT
When the remedy is reformation of the
instrument
When, there having been a meeting of the
minds of the parties to a contract, their true
intention is not expressed in the instrument
purporting to embody the agreement, by
reason of mistake, fraud, inequitable conduct
or accident, one of the parties may ask for the
reformation of the instrument to the end that
U.P. LAW BOC CIVIL PROCEDURE
such true intention may be expressed. [Art.
1359, CC]
When a mutual mistake of the parties causes
the failure of the instrument to disclose their
real agreement, the said instrument may be
reformed [Art. 1361, CC]
If one party was mistaken and the other acted
fraudulently or inequitably in such a way that
the instrument does not show their true
intention, the former may ask for the
reformation of the instrument [Art. 1362, CC]
When one party was mistaken and the other
knew or believed that the instrument did not
state their real agreement, but concealed that
fact from the former, the instrument may be
reformed [Art. 1363, CC]
When through the ignorance, lack of skill,
negligence or bad faith on the part of the
person drafting the instrument or of the clerk or
typist, the instrument does not express the true
intention of the parties, the courts may order
that the instrument be reformed [Art. 1364, CC]
If two parties agree upon the mortgage or
pledge of real or personal property, but the
instrument states that the property is sold
absolutely or with a right of repurchase,
reformation of the instrument is proper [Art.
1365, CC]
Reformation may be ordered at the instance of
either party or his successors in interest, if the
mistake was mutual; otherwise, upon petition
of the injured party, or his heirs and assigns
[Art. 1368, CC]
When the remedy is for annulment of the
contract
If mistake, fraud, inequitable conduct, or
accident has prevented a meeting of the minds
of the parties, the proper remedy is not
reformation of the instrument but annulment
of the contract. [Art. 1359, CC]
The principles of general law on reformation of
instruments are adopted insofar as they are not
Page 193 of 525
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in conflict with the provisions of the Civil Code.
[Art. 1360, CC]
There shall be no reformation in the following
cases:
1. Simple donations inter vivos wherein no
condition is imposed,
2. Wills, or
3. When the real agreement is void.
[Art. 1366, CC]
When one of the parties has brought an action
to enforce the instrument, he cannot
subsequently ask for its reformation [Art. 1367,
CC]
ii. Consolidation of Ownership
In case of real property, the consolidation of
ownership in the vendee by virtue of the failure
of the vendor to comply with the provisions of
Art. 1616 shall not be recorded in the Registry
of Property without a judicial order, after the
vendor has been duly heard. [Art. 1607, CC]
The vendor cannot avail himself of the right of
repurchase without returning to the vendee the
price of the sale, and in addition:
1. The expenses of the contract, and any
other legitimate payments made by reason
of the sale;
2. The necessary and useful expenses made
on the thing sold.
[Art. 1616, CC]
Purpose
The action brought to consolidate ownership is
not for the purpose of consolidating the
ownership of the property in the person of the
vendee or buyer but for the registration of the
property. The lapse of the redemption period
without the seller a retro exercising his right of
redemption consolidates ownership or title
upon the person of the vendee by operation of
law. [Rosario v. Rosario, G.R. No. L-13018
(1960)]
iii. Quieting of Title to Real Property
Whenever there is a cloud on title to real
property or any interest therein, by reason of
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

any instrument, record, claim, encumbrance or Reglementary period

proceeding which is apparently valid or
effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and
may be prejudicial to said title, an action may
be brought to remove such cloud or to quiet
the title.
An action may also be brought to prevent a
cloud from being cast upon title to real
property or any interest therein.
[Art. 476, CC]
The petition shall be filed within 30 days from
notice of the judgment or final order or
resolution sought to be reviewed [Sec. 3, Rule
64].
The 30-day period refers to a petition directed
against a final order or judgement of the
commission concerned. As such, if a petition
for certiorari is directed against an interlocutory
order, the 60-day period in Rule 65 should
apply. [2 Riano 178, 2016 Bantam Ed.]

The plaintiff must have legal or equitable title Interruption of the 30-day period
to, or interest in the real property which is the The filing of a motion for new trial or
subject-matter of the action. He need not be in reconsideration of said judgment or final
possession of said property. [Art. 477, CC] order or resolution, if allowed under the
procedural rules of the Commission
Requisites concerned, shall interrupt the period herein
1. The plaintiff or complainant has a legal or fixed.
an equitable title to or interest in the real • If the motion is denied, the aggrieved
property subject of the action, and party may file the petition within the
2. The deed, claim, encumbrance, or remaining period, but which shall not
proceeding claimed to be casting cloud on be less than 5 days in any event,
his title must be shown to be in fact invalid reckoned from notice of denial [Sec. 3,
or inoperative despite its prima facie Rule 64]
appearance of validity or legal efficacy.
[Mananquil v. Moico, G.R. No. 180076 (2012)] a. Distinctions in the Application
of Rule 65 to Judgments of the
6. REVIEW OF JUDGMENTS COMELEC and COA and the
AND FINAL ORDERS OR Application of Rule 65 to Other
RESOLUTION OF THE Tribunals, Persons, and
COMMISSION ON Officers
ELECTIONS AND THE Rule 64 Rule 65
COMMISSION ON AUDIT Directed to any
Directed to
tribunal, board, or
Scope judgments, final
officer exercising
Review of judgments and final orders or orders or resolutions
judicial or quasi-
resolutions of the COMELEC and the COA. of COMELEC and
judicial functions.
[Sec. 1, Rule 64] COA. [Sec. 1]
[Sec. 1]
Filed within 30 days Filed within 60 days
A judgment or final order or resolution of the
from notice of the from notice of the
COMELEC and the COA may be brought by
the aggrieved party to the SC on certiorari judgment. [Sec. 3] judgment. [Sec. 4]
under Rule 65, except as hereinafter provided The denial of a prior The denial of the
[Sec. 2, Rule 64], not on appeal by certiorari motion for motion for
under Rule 45. reconsideration or reconsideration or
new trial gives the new trial gives the
filing part time to file filing party a fresh

Page 194 of 525

U.P. LAW BOC CIVIL PROCEDURE
within the remainder period of 60 days for
of the 30-day period, the filing of a Rule
but never less than 5 65 petition for
days reckoned from certiorari. [Sec. 4]
the notice of denial.
[Sec. 3]
7. CERTIORARI, PROHIBITION,
AND MANDAMUS
a. Definitions and Distinctions
Certiorari is a writ emanating from the proper
court directed against any tribunal, board or
officer exercising judicial or quasi-judicial
functions, the purpose of which is to correct
errors of jurisdiction - i.e. without or in excess
of jurisdiction, or with grave abuse of discretion
amounting to the same. [Sec. 1, Rule 65]
Prohibition is a writ issued by the proper court
and directed against any tribunal, corporation,
board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions,
commanding the respondent to desist from
further proceedings in the action or matter
specified therein [Sec. 2, Rule 65]
Mandamus is a writ to compel a tribunal,
corporation, board, officer or person to do the
act required to be done to protect the rights of
the petitioner when the respondent unlawfully
neglects the performance of an act which the
law specifically enjoins as a duty resulting from
an office, trust, or station, or excludes another
from the use and enjoyment of a right or office
to which such other is entitled, and there is no
other plain, speedy and adequate remedy in
the ordinary course of law.
[Sec. 3, Rule 65]
b. Requisites
Certiorari
a. Respondent is exercising judicial or quasi-
judicial function;
b. Respondent acted without or in excess of
its jurisdiction or acted with grave abuse of
Page 195 of 525
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discretion amounting to lack of jurisdiction;
and
c. There must be no appeal or no other plain,
speedy, and adequate remedy.
[Sec. 1, Rule 65; Barbers v. COMELEC, G.R.
No. 165691 (2005)]
Notes on certiorari:
a. A respondent is said to be exercising
judicial functions where he has the power
to determine what the law is and what the
legal rights of parties are.
b. Quasi-judicial function is a term which
applies to the action of administrative
officers or bodies to investigate facts and
draw conclusions. [2 Riano 195, 2016
Bantam Ed.]
c. The acts that may be the object of the
petition are:
1. Acts without jurisdiction - denotes
that the tribunal, board, or officers
acted with absolute lack of authority
2. Excess of jurisdiction - when the
respondent exceeds its power or acts
without any statutory authority
3. Grave abuse of discretion - connotes
capricious and whimsical exercise of
judgement as to be equivalent to lack
or excess of jurisdiction.
[2 Riano 205, 2016 Bantam Ed.]
Prohibition
a. Respondent is exercising judicial or quasi-
judicial function;
b. Respondent acted without or in excess of
its jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction;
and
c. There must be no appeal or no other plain,
speedy, and adequate remedy.
[Sec. 2, Rule 65; Barbers v. COMELEC, G.R.
No. 165691 (2005)]
Mandamus
a. Respondent unlawfully
1. Neglects the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust, or
station, or
U.P. LAW BOC CIVIL PROCEDURE
2. Excludes another from the use and
enjoyment of a right or office to which
such other is entitled, and
b. There is no other plain, speedy and
adequate remedy in the ordinary course of
law.
[Sec. 3, Rule 65]
Discretionary vs. Ministerial act
Discretionary act Ministerial act
One which an officer
or tribunal performs
in a given state of
facts, in a prescribed
The law imposes a manner, in
duty upon a public obedience to the
officer and gives him mandate of a legal
the right to decide authority, without
how or when the duty regard to or the
shall be performed. exercise of his own
judgment upon the
propriety or
impropriety of the act
done.
[Roble Arrastre, Inc. v. Villaflor, G.R. No.
128509 (2006)]
Note: The common requisite among certiorari,
prohibition, and mandamus is that there is no
other plain, speedy, or adequate remedy in
the ordinary course of law. [Secs. 1, 2, 3,
Rule 65]
c. When Petition for Certiorari,
Prohibition, and Mandamus is
Proper
Certiorari is a corrective remedy used to
correct errors of jurisdiction, not errors of
judgment.
Note: Errors of judgement are those errors
arising from erroneous conclusions of law.
They are reviewable by appeal, not by
certiorari. [Heirs of Valientes v. Ramas, 638
SCRA 444]
Questions of fact cannot be raised in an original
action for certiorari. Only established or
Page 196 of 525
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admitted facts may be considered. [Suarez v.
NLRC, G.R. No. 124723 (1998)]
General rule: Where an appeal is available,
certiorari will not lie [Jose v. Zulueta, G.R. No.
L-16598 (1961)]
Exceptions:
a. Where appeal does not constitute a speedy
and adequate remedy;
b. Where orders were also issued either in
excess of or without jurisdiction;
c. For certain special considerations, as
public welfare or public policy;
d. Where, in criminal actions, the court rejects
the rebuttal evidence for the prosecution
as, in the case of acquittal, there could be
no remedy;
e. Where the order is a patent nullity; and
f. Where the decision in the certiorari case
will avoid future litigations.
[Villarica Pawnshop v. Gernale, G.R. No.
163344 (2009)]
Prohibition
Prohibition is a preventive remedy. However,
to prevent the respondent from performing the
act sought to be prevented during the
pendency of the proceedings for the writ, the
petitioner should obtain a restraining order
and/or a writ of preliminary injunction. [1
Regalado 801, 2010 Ed.]
The office of prohibition is not to correct errors
of judgment but to prevent or restrain
usurpation by inferior tribunals and to compel
them to observe the limitation of their
jurisdictions. [3 Herrera 321, 2006 Ed.]
General rule: Prohibition, as a rule, does NOT
lie to restrain an act which is already fait
accompli (one that has already been done)
[Cabañero and Mangornong v. Torres, G.R.
No. L-43352 (1935)]
Exception: A writ of prohibition will lie to
prevent the unlawful creation of a new province
by those in the corridors of power who could
avoid judicial intervention and review by merely
speedily and stealthily completing the
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

commission of such illegality. [Tan v. d. Injunctive Relief

COMELEC, G.R. No. 73155 (1986)]
General rule
Mandamus The petition shall not interrupt the course of
There must be a well-defined, clear legal right the principal case
or duty. [Valmonte v. Belmonte, G.R. No. • The public respondent shall proceed with
74930 (1989)] The duty must be enjoined by the principal case within 10 days from filing
law; hence, a contractual duty cannot be of the petition for certiorari with the higher
enforced by mandamus [Province of court, absent a TRO or preliminary
Pangasinan v. Reparations Commission, G.R. injunction, or upon its expiration.
No. L-27448 (1977)] • Failure of the public respondent to proceed
with the principal case may be a ground for
The respondent must be exercising a an administrative charge.
ministerial duty. [Roble Arrastre, Inc. v. [Sec. 7, Rule 65, as amended by A.M. No. 07-
Villaflor, G.R. No. 128509 (2006)] As such, 7-12-SC]
mandamus “will lie to compel discharge of the
discretionary duty itself but not to control the Exceptions:
discretion to be exercised. In other words, a a. When a TRO or a writ of preliminary
mandamus can be issued to require action, but injunction has been issued, enjoining the
not specific action.” [Association of Small public respondent from further proceeding
Landowners in the Philippines, Inc. v. Sec. of with the case. [Sec. 7, Rule 65, as
Agrarian Reform, G.R. No. 78742 (1989)] amended by A.M. No. 07-7-12-SC]
b. The doctrine of judicial courtesy: Even if
However, in extreme situations generally in there is no injunction issued, the lower
criminal cases, mandamus lies to compel the court should defer to the higher court
performance by the fiscal of discretionary where there is a strong probability that the
functions where his actuations are tantamount issues before the higher court would be
to a willful refusal to perform a required duty. [1 rendered moot and moribund as a result of
Regalado 804, 2010 Ed.] the continuation of proceedings in the court
of origin. [Republic v. Sandiganbayan, G.R.
Grounds: No. 166859 (2006)]
When any tribunal, corporation, board, officer
or person unlawfully e. Distinguish: Certiorari, Appeal
a. NEGLECTS the performance of an act
which the law specifically enjoins as a duty
by Certiorari, and Article VIII,
resulting from an office, trust, or station, or Section 1 of the Constitution
b. EXCLUDES another from the use and
enjoyment of a right or office to which such Certiorari as a Certiorari as a
other is entitled. mode of appeal special civil action
[Sec. 3, Rule 65] [Rule 45] [Rule 65]
A continuation of
Mandamus is the proper remedy when the the appellate An original action and
respondent unlawfully excludes the petitioner process over the not a mode of appeal
from a public office, position or franchise to original case
which the latter is entitled without usurping, May be directed
intruding into or unlawfully holding the office.
against an
However, if the respondent claims any right to Seeks to review
interlocutory order of
the office and usurps, intrudes into or final judgment or
unlawfully holds it against the petitioner, quo the court or where no
final orders
warranto is the proper remedy [Sec. 1, Rule 66] appeal or plain or
speedy remedy is

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

available in the If the order is

ordinary course of law sufficient in form and
Raises questions of substance, the RTC
jurisdiction, i.e. shall:
Review by the SC is
whether a tribunal, 1. order respondents
discretionary and
board or officer to comment, then
will be granted only
exercising judicial or 2. (a) hear the case or
when there are
quasi-judicial (b) require the parties
Raises only special or important
functions has acted to file memoranda.
questions of law reasons [Sec. 6,
without jurisdiction or
Rule 45]
in excess of But the SC/CA may
jurisdiction or with require a comment
grave abuse of before giving the
discretion amounting petition due course.
to lack of jurisdiction [1 Regalado 612, 2010 Ed.]
Filed within 15 days
from notice of Note: The remedies of appeal and certiorari
judgment or final Filed not later than 60 are mutually exclusive and not alternative or
order appealed days from notice of successive. Thus, a petitioner must show valid
reasons why the issues raised in his petition for
from, or of the judgment, order, or
certiorari could not have been raised on
denial of resolution sought to
appeal. [Villamar-Sandoval v. Cailipan, G.R.
petitioner’s motion be assailed. No. 200727 (2013)]
for reconsideration
or new trial. Expanded Scope of Certiorari
Extension of 30 Extension granted While Rule 65 specifically requires that the
days may be only under respondent be a tribunal, board, or officer
granted for exceptional cases exercising judicial or quasi-judicial functions,
justifiable reasons. (infra). recent pronouncements of the Court have
Motion for extended the reach of the petition to
Does not require a
reconsideration is a functions that are neither judicial or quasi-
prior motion for
condition precedent, judicial. [Araullo v. Aquino, G.R. No. 209287
reconsideration
subject to exceptions (2014)]
Does not stay the
judgment or order f. Distinguish: Prohibition,
Stays the judgment
subject of the petition, Mandamus, and Injunction
appealed from
unless enjoined or
restrained Injunction Prohibition
Parties are the Ordinary civil
original parties with Special civil action
action
the appealing party The tribunal, board, or Directed only to
as the petitioner officer, exercising Directed to the court
the party litigants,
and the adverse judicial or quasi- itself, commanding it to
without in any
party as the judicial functions is cease from the exercise
manner
respondent, without impleaded as of a jurisdiction to which
interfering with
impleading the respondent it has no legal claim
the court
lower court or its
judge

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

It is based on the
ground that the court Where to file
Does not involve Subject to the doctrine
against whom the writ is
the jurisdiction of of hierarchy of courts
sought had acted
the court and only when
without or in excess of
jurisdiction compelling reasons
Main action or Supreme Court exist for not filing the
provisional Main action same with the lower
remedy courts [Uy v.
[2 Riano 58, 2016 Bantam Ed.] Contreras, G.R. No.
111416-17 (1994)]
Injunction Mandamus If the petition relates to
Ordinary civil action Special civil action an act or an omission of
Directed against a an MTC, corporation,
Directed against a tribunal, RTC board, officer or person
litigant corporation, board, [Sec. 4, Rule 65, as
or officer amended by A.M. No.
Purpose is for the 07-7-12-SC]
Purpose is to either If the petition involves
tribunal,
refrain the defendant an act or an omission of
corporation, board,
from performing an a quasi-judicial agency,
or officer, to
act or to perform not Court of Appeals unless otherwise
perform a
necessarily a legal only provided by law or
ministerial and legal
and ministerial duty rules [Sec. 4, Rule 65,
duty
[2 Riano 59, 2016 Bantam Ed.] as amended by A.M.
No. 07-7-12-SC]
g. When and Where to File Petition Whether or not in aid of
Court of Appeals
appellate jurisdiction
or the
Petition and contents [Sec. 4, A.M. No. 07-7-
Sandiganbayan
A verified petition is 12-SC]
a. Filed in the proper court In election cases
1. Alleging the facts with certainty involving an act or an
2. Praying for the proper judgment; and Commission on
omission of an MTC or
b. Accompanied by: Elections
RTC [Sec. 4, A.M. No.
1. A certified true copy of the judgment, 07-7-12-SC]
order, resolution subject thereof
2. Copies of all pleadings and relevant
Rule on extension of time for filing
and pertinent documents
General rule: The 60-day period within which
3. A sworn certification of non-forum to file a petition for certiorari under Rule 65 is
shopping
non-extendible.
[Secs. 1-3, Rule 65]
Exception: Under the following exceptional
When to file circumstances, the Court may extend the
Not later than 60 days from notice of judgment, period according to its sound discretion:
order, or resolution. If a motion for a. Most persuasive and weighty reasons;
reconsideration or new trial is filed, the 60-day b. To relieve a litigant from an injustice not
period shall be counted from notice of denial of commensurate with his failure to comply
motion. [Sec. 4, Rule 65] with the prescribed procedure;

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U.P. LAW BOC CIVIL PROCEDURE
c. Good faith of the defaulting party by
immediately paying within a reasonable
time from the time of the default;
d. The existence of special or compelling
circumstances;
e. The merits of the case;
f. A cause not entirely attributable to the fault
or negligence of the party favored by the
suspension of the rules;
g. A lack of any showing that the review
sought is merely frivolous and dilatory;
h. The other party will not be unjustly
prejudiced thereby;
i. Fraud, accident, mistake or excusable
negligence without appellant’s fault;
j. Peculiar legal and equitable circumstances
attendant to each case;
k. In the name of substantial justice and fair
play;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge
guided by all the attendant circumstances.
[Thenamaris Philippines, Inc. v. CA, G.R. No.
191215 (2014)]
h. Exceptions to Filing of Motion
for Reconsideration Before
Filing Petition
General rule: A motion for reconsideration
is an essential precondition for the filing of a
petition for certiorari, prohibition, or
mandamus. It is a plain, speedy, and adequate
remedy.
• This is to enable the lower court, in the
first instance, to pass upon and correct
its mistakes without the intervention of
the higher court. [Teng v. Pahagac,
G.R. No. 169704 (2010)]
Exceptions:
An MR may be dispensed with in some cases,
such as:
a. Where the order is a patent nullity;
b. Where questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon in
the lower court;
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REMEDIAL LAW
c. Where there is urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
Government;
d. Where under the circumstances, an MR
would be useless, as where the court had
already indicated that it would deny any
MR of its questioned order;
e. Where the petitioner was deprived of due
process and there is extreme urgency for
relief;
f. Where, in a criminal case, relief from an
order of arrest is urgent and granting such
relief by trial court is improbable;
g. Where the proceedings in the lower court
are a nullity for lack of due process;
h. Where the proceeding was ex-parte or in
which the petitioner had no opportunity to
object;
i. Where the issue raised is one purely of law
or where public interest is involved;
j. Where the subject matter of the action is
perishable.
[Ombudsman v. Laja, G.R. No. 169241 (2006)]
i. Reliefs Petitioner is Entitled to
Reliefs
Court may:
a. Issue orders expediting the proceedings,
and it may also grant a temporary
restraining order or a writ of preliminary
injunction for the preservation of the rights
of the parties. [Sec. 7, Rule 65]
b. Incidental reliefs as law and justice may
require. [Secs. 1-2, Rule 65]
c. Other reliefs prayed to which the petitioner
is entitled. [Sec. 8, Rule 65]
d. Disciplinary sanctions for erring lawyers
for patently dilatory and unmeritorious
petitions for certiorari. [Sec. 8, Rule 65]
Prayers
Certiorari
a. That the judgment be rendered annulling or
modifying the proceedings of such tribunal,
board or officer; and
b. Granting such incidental reliefs as law and
justice may require [Sec. 1, Rule 65]
U.P. LAW BOC CIVIL PROCEDURE
Prohibition
a. That the judgment be rendered
commanding the respondent to desist from
further proceedings in the action or matter
specified; or
b. Otherwise granting such incidental reliefs
as law and justice may require [Sec. 2,
Rule 65]
Mandamus
a. That the judgment be rendered
commanding the respondent, immediately
or at some other time to be specified by the
court, to do the act required to be done to
protect the rights of the petitioner; and
b. To pay the damages sustained by the
petitioner by reason of the wrongful acts of
the respondent [Sec. 3, Rule 65]
j. Acts or Omissions of First-
Level/Regional Trial Courts in
Election Cases
In election cases involving an act or omission
of a municipal or RTC, the petition [for
certiorari, prohibition, or mandamus] shall be
filed exclusively with the COMELEC, in aid of
its appellate jurisdiction. [Sec. 4, par. 3, Rule
65 as amended by A.M. No. 07-7-12- SC
(2007)]
k. Effects of Filing of an
Unmeritorious Petition
The court may dismiss the petition if:
a. It finds the same patently without merit or
prosecuted manifestly for delay, or
b. If the questions raised therein are too
insubstantial to require consideration.
Effect of dismissal
The court may award in favor of the respondent
treble costs solidarily against the petitioner and
counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and
139-B.
• The Court may impose motu proprio,
based on res ipsa loquitur, other
disciplinary measures on erring
Page 201 of 525
REMEDIAL LAW
lawyers for patently dilatory and
unmeritorious petitioner for certiorari.
[Sec. 8, Rule 65]
8. QUO WARRANTO
A quo warranto proceeding is the proper
legal remedy to determine the right or title to
the contested public office and to oust the
holder from its enjoyment. [Defensor-Santiago
v. Guingona, Jr., G.R. No. 134577 (1998)]
Literally means “by what authority”, it is a
prerogative writ by which the court can call
upon any person to show by what warrant he
holds a public office or exercises a public
franchise. [Tecson v. COMELEC, G.R. No.
161434 (2004)]
Subject matter
An action for the usurpation of a public office,
position or franchise. [Sec. 1, Rule 66]
Against whom may the action be brought
1. A PERSON who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position, or franchise
• Note: Sec. 2, Article XI of the
Constitution allows the institution of a
quo warranto action against an
impeachable officer. After all, a quo
warranto petition is predicated on
grounds distinct from those of
impeachment. The former questions
the validity of a public officer’s
appointment while the latter indicts him
for so-called impeachable offenses
without questioning his title to the office
he holds [Republic v. Sereno, G.R. No.
237428 (2018)]
2. A PUBLIC OFFICER who does or suffers
an act, which, by the provision of law,
constitutes a ground for forfeiture of office;
or
3. An ASSOCIATION which acts as a
corporation within the Philippines without
being legally incorporated or without lawful
authority so to act. [Sec. 1, Rule 66]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

When not proper a. Distinguish: Quo Warranto

1. Against persons who usurp an office in a Under the Rules of Court and
private corporation [Calleja v. Panday, Quo Warranto Under the
G.R. No. 168696 (2006)]
2. If the dispute is as to the counting of votes
Omnibus Election Code
or on matters connected with the conduct
of the election, a quo warranto is not the Quo warranto in
proper remedy but an election protest. electoral
Quo warranto
[Cesar v. Garrido, G.R. No. 30705 (1929)] proceedings [Sec.
under Rule 66
3. Acts or omissions, even if it relates to the 253, Omnibus
qualification of integrity, being a continuing Election Code]
requirement but nonetheless committed Filed by whom
during the incumbency of a validly The OSG, either
appointed and/or validly elected official, mandatory or
cannot be the subject of a quo warranto discretionary, as
proceeding. [Republic v. Sereno, G.R. No. discussed below.
237428 (2018)]

Jurisdiction OR
1. Original jurisdiction to issue the writ of quo
warranto is vested in the SC, CA, and A person claiming to Any voter
RTC. [Sec. 5(1), Art. VIII, Constitution; be entitled to a public
Secs. 9 and 21, B.P. 129] office or position
2. Quo warranto actions against corporations usurped or
with regard to franchises and rights granted unlawfully held or
to them, as well as the dissolution of exercised by another
corporations now fall under the jurisdiction in his own name.
of the RTC. [Sec. 5.2, RA No. 8799 in [Sec. 5, Rule 66]
relation to P.D. 902-A; Unilongo v. CA, Where filed
G.R. No. 123910 (1999)]
When Commenced
3. The usurpation of an office in a private
corporation falls under the jurisdiction of by Solicitor If against the
the RTC under Sec. 5.2, R.A. 8799 in General: election of a Member
relation to P.D. 902-A; Calleja v. Panday, RTC Manila, CA, or of Congress,
G.R. No. 168696 (2006)] SC regional, provincial
or city officer, file in
Otherwise: the COMELEC
RTC with jurisdiction
over the territorial If against a
area where municipal or
respondent or any of barangay officer, file
the respondents in the appropriate
resides, CA, or SC RTC or MTC,
[Sec. 7, Rule 66] respectively.

Period for filing

Within one year after
Within 10 days after
the cause of such
proclamation of
ouster, or the right of
results
the petitioner to hold

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

such office or b. When Government Commences

position, arose [Sec. an Action Against Individuals
11, Rule 66] or Associations
Issue
Issue is legality of the The Solicitor General or a public prosecutor,
occupancy of the Issue is eligibility of a. Must bring the action (MANDATORY)
office by virtue of a the person elected. either
legal appointment. i. When directed by the President, or
Grounds ii. Upon complaint, where the OSG has
(against occupants of public offices) good reason to believe that any of the
a. A person who cases in Sec. 1, Rule 66 exist. [Sec. 2,
usurps, intrudes Rule 66]
into, or
b. May bring the action
unlawfully holds
or exercises a (DISCRETIONARY)
public office, i. At the request of another person, and
position or ii. With the permission of the court
franchise; or a. Ineligibility, or [Sec. 3, Rule 66]
b. A public officer b. Disloyalty to the
who does or Republic of the c. When Individual May
suffers an act Philippines
Commence an Action
which, by the
provision of law,
constitutes a An individual may commence the action if he
ground for the claims to be entitled to the office or position
forfeiture of his usurped or unlawfully held or exercised by
office another. [Sec. 5, Rule 66]
[Sec. 1, Rule 66] • He must aver and be able to show that
he is entitled to the office in dispute,
Effect
otherwise the action may be dismissed
When the at any stage. [General v. Urro, G.R. No.
respondent is found 191560 (2011)]
The occupant who
guilty of usurping,
was declared
intruding into, or A public utility may bring a quo warranto
ineligible or disloyal
unlawfully holding or action against another public utility which has
will be unseated but
exercising a public usurped the rights of the former granted under
the petitioner may be
office, position or a franchise. [Cui v. Cui, G.R. No. 39773 (1934)]
declared the rightful
franchise, judgment
occupant of the Contents of quo warranto petition
shall be rendered
office if the The petition shall set forth
that such respondent
respondent is a. The name of the person who claims to be
be ousted and
disqualified and the entitled thereto, if any,
altogether excluded
petitioner received b. With an averment of his right to the same
therefrom, and that
the second number and that the respondent is unlawfully in
the petitioner or
of votes. [Maquiling possession thereof.
relator, as the case [Sec. 6, Rule 66]
v. COMELEC, G.R.
may be, recover his
No. 195649 (2013)]
costs. When quo warranto filed
[Sec. 9, Rule 66] General rule: An action for quo warranto must
be commenced within 1 year after the cause

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U.P. LAW BOC CIVIL PROCEDURE
of such ouster, or the right of the petitioner to
hold such office or position, arose. [Sec. 11,
Rule 66]
- The failure to institute the action within the
reglementary period constitutes more than
a sufficient basis for its dismissal [Alejo v.
Marquez, G.R. No. L-29053 (1971)], since
it is not proper that the title to a public
office be subjected to continued
uncertainty [Villegas v. De la Cruz, G.R.
No. L-23752 (1965)]
Exception: The prescriptive period does not
apply if the failure to file the action can be
attributed to acts of a responsible government
officer and not of the dismissed employee.
[Romualdez-Yap v. CSC, et. al., G.R. No.
104226 (1993)]
The pendency of administrative remedies does
not operate to suspend the period of 1 year
within which a petition for quo warranto should
be filed. [Torres v. Quintos, G.R. No. L-3304
(1951)]
Reduction of period
The court may reduce the period provided by
the ROC for filing pleadings and for all other
proceedings in the action in order to secure the
most expeditious determination of the matters
involved therein consistent with the rights of the
parties. Such action may be given precedence
over any other civil matter pending in the court.
[Sec. 8, Rule 66]
d. Judgment in Quo Warranto
Action
When respondent is found guilty of usurping
into, intruding into, or unlawfully holding or
exercising a public office, position, or franchise,
judgment shall be rendered that:
a. Such respondent is ousted and altogether
excluded therefrom; and
b. Petitioner, as the case may be, recovers
his costs.
Note: Further judgment may be rendered
determining the respective rights in and to
the public office, position, or franchise of all
parties to the action as justice requires.
Page 204 of 525
REMEDIAL LAW
[Sec. 9, Rule 66]
e. Rights of A Person Adjudged
Entitled to Public Office
When judgment is rendered in favor of a person
averred in the complaint to be entitled to the
public office, such person may take upon
himself:
a. The execution of the office after taking
the oath of office and executing any official
bond required by the law;
b. Demand of the respondent all the books
and papers in the respondent’s custody or
control appertaining to the office to which
judgment relates.
- If the respondent refuses or neglects to
deliver any book or paper pursuant to
such demand, he may be punished for
contempt as having disobeyed a lawful
order of the court. [Sec. 10, Rule 66]
f. Limitations
Nothing contained in Rule 66 shall be
construed:
a. To authorize an action against a public
officer or employee for his ouster from
office unless the same be commenced
within 1 year after the cause of such ouster,
or the right of the petitioner to hold office
arose, nor
b. To allow the person entitled to the office to
file for damages unless the action is
commenced within 1 year after the entry of
judgement establishing the petitioner’s
right to the office in question. [Sec. 11, Rule
66]
9. EXPROPRIATION
The power of eminent domain is an inherent
and indispensable power of the State. Also
called the power of expropriation, it is
described as the highest and most exact idea
of property that may be acquired for some
public purpose through a method in the nature
U.P. LAW BOC CIVIL PROCEDURE
of a compulsory sale to the State [Manapat v.
CA, G.R. No. 110478 (2007)]
Requisites
1. The property taken must be private
property;
2. There must be genuine necessity to take
the private property;
3. The taking must be for public use;
4. There must be payment of just
compensation; and
5. The taking must comply with due process
of law.
[Manapat v. CA, G.R. No. 110478 (2007)]
There is taking when the expropriator enters
private property not only for a momentary
period but for a more permanent duration for
the purpose of devoting the property to a public
use in such a manner as to oust the owner and
deprive him of all the beneficial enjoyment
thereof. [Republic v. Sarabia, G.R. No. 157847
(2005)]
Public use means public usefulness, utility, or
advantage, or what is productive of the general
benefit, so that any appropriation of private
property by the State under its right of eminent
domain, for purposes of great advantage to the
community, is a taking for public use. [Reyes v.
National Housing Authority, G.R. No.147511
(2003)]
Just compensation is the full and fair
equivalent of the property taken from its owner
by the expropriator. It is considered to be a sum
equivalent to the market value of the property,
which is defined as the price fixed by the seller
in the open market in the usual and ordinary
course of legal action and competition. [2
Riano 284-285, 2016 Bantam Ed.]
When market value should be fixed:
a. If plaintiff takes possession before the
institution of proceedings: value is fixed as
of time of taking; or
b. If taking coincides with or is subsequent to
the commencement of proceedings: value
is fixed as of date of filing of the
complaint.
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REMEDIAL LAW
[Republic v. Philippine National Bank, G.R. No.
L-14158 (1961)]
Where to file
File the complaint for expropriation in the RTC
where property is located. The MTC has no
jurisdiction since an action for expropriation is
incapable of pecuniary estimation. [Barangay
San Roque v. Heirs of Pastor, G.R. No. 138816
(2000)]
a. Matters to Allege in Complaint
for Expropriation
The verified complaint shall
a. State with certainty the right and purpose
of expropriation,
b. Describe the real or personal property
sought to be expropriated, and
c. Join as defendants all persons owning or
claiming to own, or occupying, any part
thereof or interest therein, showing, so far
as practicable, the separate interest of
each defendant.
Note: If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals, or if the title is otherwise obscure or
doubtful so that the plaintiff cannot with
accuracy or certainty specify who are the real
owners, averment to that effect shall be made
in the complaint. [Sec. 1, Rule 67]
b. Two Stages in Every Action for
Expropriation
The first phase determines the propriety of the
action. The second phase determines the
compensation to be paid to the landowner.
[National Power Corporation v. Posada, G.R.
No. 191945 (2015)]
First stage: Propriety of expropriation
a. This stage involves the determination of
the authority of the plaintiff to exercise
the power of eminent domain and the
propriety of its exercise in the context of the
facts involved in the suit
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. Ends with an order of dismissal or order c. When Plaintiff Can Immediately

of condemnation declaring that the Enter Into Possession of Real
plaintiff has a lawful right to take the Property
property sought to be condemned, for the
public use or purpose described in the
The plaintiff shall have the right to take or
complaint, upon the payment of just
enter upon possession of the real property
compensation to be determined as of the
upon:
date of the filing of the complaint.
a. Filing of complaint or at any time thereafter,
1. An order of dismissal, would be a final
b. After due notice to defendant, and
one, since it finally disposes of the
c. Making a preliminary deposit [Sec. 2, Rule
action and leaves nothing more to be
67]
done by the court on the merits.
2. So, too, would an order of
Preliminary deposit
condemnation be a final one, for
If real property:
thereafter, as the ROC expressly
states, in the proceedings before the An amount equivalent to the
Trial Court, "no objection to the assessed value of the property
exercise of the right of condemnation for purposes of taxation.
(or the propriety thereof) shall be filed Value
or heard.” [National Power Corporation If personal property:
v. Posada, G.R. No. 191945 (2015)] Its value shall be provisionally
ascertained and the amount to
Note: A final order sustaining the right to be deposited shall be promptly
expropriate the property may be appealed by fixed by the court.
any party aggrieved thereby. Such appeal, With the authorized government
however, shall not prevent the court from Where
depository to be held by such
determining the just compensation to be paid. to
bank subject to the orders of the
[Sec. 4, Rule 67] deposit
court.
Second Stage: Just compensation General rule: In money.
a. This stage involves the determination by
the Court of "the just compensation for the Exception: In lieu of money, the
property sought to be taken” with the court authorizes the deposit of a
assistance of not more than three (3) Form of certificate of deposit of a
commissioners. deposit government bank of the
b. The order fixing the just compensation on Republic of the Philippines
the basis of the evidence before, and payable on demand to the
findings of, the commissioners would be authorized government
final, too. It would finally dispose of the
depository.
second stage of the suit, and leave nothing
more to be done by the Court regarding the The court shall order the sheriff
issue. [National Power Corporation v. or other proper officer to
Posada, G.R. No. 191945 (2015)] After forthwith place the plaintiff in
deposit possession of the property
is made involved and promptly submit a
report thereof to the court with
service of copies to the parties.
[Sec. 2, Rule 67]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

d. New System of Immediate 67 continues to apply. In such a case, the

Payment of Initial Just government is required only to make an initial
Compensation deposit with an authorized government
depository. [2 Riano 297-298, 2016 Bantam
Ed.]
R.A. 10752 (For national government
infrastructure projects)
Republic Act 10752, also known as “The Right e. Defenses and Objections
of Way Act” ensures that owners of real
property acquired for national government With
infrastructure projects are promptly paid just No objection to taking objection to
compensation for the expeditious acquisition of taking
the required right-of-way for the projects. What to file and serve
Notice of appearance and Answer
Upon the filing of the complaint or at any time a manifestation
thereafter, and after due notice to the Period to file
defendant, the implementing agency shall
Within the time stated in the summons
immediately deposit to the court in favor of
the owner the amount equivalent to the sum of Contents
a. 100% of the value of the land based on the a. Specifically
current relevant zonal valuation of the BIR designate
issued not more than 3 years prior to the or identify
filing of the expropriation complaint the
b. The replacement cost at current market property in
value of the improvements and structures which he
as determined by claims to
1. The implementing agency have an
2. A government financial institution with a. Manifestation to the interest,
adequate experience in property effect that he has no b. State the
appraisal, and objection or defense nature and
3. An independent property appraiser b. Specifically extent of
accredited by the BSP. designating/identifying the interest
c. The current market value of crops and the property in which claimed,
trees located within the property as he claims to be and
determined by a government financial interested c. Adduce all
institution or an independent property his
appraiser to be selected as indicated in objections
Sec. 5(a) and
defenses
Upon compliance with the guidelines above to the
mentioned, the court shall immediately issue taking of
to the implementing agency an order to take his
possession of the property and start the property
implementation of the project. Prohibited
[Sec. 6, R.A. 10752] Counterclaim,
cross- claim or
For non-government infrastructure projects third-party
If expropriation is engaged in by the national complaint in
government for purposes other than national the answer or
infrastructure projects, the assessed value any
standard and deposit mode prescribed in Rule

Page 207 of 525

U.P. LAW BOC CIVIL PROCEDURE
subsequent
pleading
[Sec. 3, Rule 67]
Effect of failure to file answer
The failure to file an answer does not produce
all the disastrous consequences of default in
ordinary civil actions, because the defendant
may still present evidence as to just
compensation. [Robern Development Corp. v.
Quitain, G.R. No. 135042 (1999)]
f. Order of Expropriation
When issued
a. If the objections to and the defenses
against the right of the plaintiff to
expropriate the property are overruled, or
b. When no party appears to defend as
required by this Rule.
[Sec. 3, Rule 67]
Contents of order
The court may issue an order of expropriation
declaring that:
a. The plaintiff has a lawful right to take the
property sought to be expropriated,
b. For the public use or purpose described in
the complaint,
c. Upon the payment of just compensation to
be determined as of the date of the taking
of the property or the filing of the complaint,
whichever came first. [Sec. 4, Rule 67]
Remedy of defendant
A final order sustaining the right to expropriate
the property may be appealed by any party
aggrieved thereby.
• The order of condemnation is final. Hence,
it is appealable. [Heirs of Alberto v. City of
Mandaluyong, G.R. No. 135087 (2000)]
Note: Such appeal, however, shall not prevent
the court from determining the just
compensation to be paid.
[Sec. 4, Rule 67]
Page 208 of 525
REMEDIAL LAW
g. Ascertainment of Just
Compensation
Upon the rendition of the order of expropriation,
the court shall appoint not more than 3
competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken. [Sec. 5, Rule 67]
Order of appointment
The order of appointment shall:
a. Designate the time and place of the first
session of the hearing to be held by the
commissioners,
b. Specify the time within which the
commissioners' report shall be submitted
to the court,
c. Be served on the parties. [Sec. 5, Rule 67]
h. Appointment of
Commissioners;
Commissioner’s Report; Court
Action Upon Commissioner's
Report
Qualifications
a. Competent; and
b. Disinterested. [Sec. 5, Rule 67]
Objection to the appointment
Objections to the appointment of any of the
commissioners shall be:
a. Filed with the court within 10 days from
service, and
b. Resolved within 30 days after all the
commissioners shall have received copies
of the objections. [Sec. 5, Rule 67]
Duties of commissioners
The commissioners shall:
a. After due notice to the parties to attend,
view and examine the property sought to
be expropriated and its surroundings, and
may measure the same, after which either
party may, by himself or counsel, argue the
case.
• Unless the parties consent to the
contrary.
U.P. LAW BOC CIVIL PROCEDURE
b. Assess the consequential damages to
the property not taken and deduct from
such consequential damages the
consequential benefits to be derived by the
owner from the public use or purpose of the
property taken, the operation of its
franchise by the corporation or the carrying
on of the business of the corporation or
person taking the property.
• In no case shall the consequential
benefits assessed exceed the
consequential damages assessed, or
the owner be deprived of the actual
value of his property so taken.
[Sec. 6, Rule 67]
Action by the court
The court may:
1. Order the commissioners to report when
any particular portion of the real estate
shall have been passed upon by them,
and
2. Render judgment upon such partial report,
and
3. Direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and
may from time to time so deal with such
property. [Sec. 7, Rule 67]
Commissioners’ report
The commissioners shall make a full and
accurate report to the court of all their
proceedings.
• Except as otherwise expressly ordered by
the court, such reports shall be filed within
60 days from the date the commissioners
were notified of their appointment.
• Time for submission of the report may be
extended at the discretion of the court.
• Upon the filing the report, the COC shall
serve copies on all interested parties, with
notice that they are allowed 10 days within
which to file objections to the findings of the
report, if they so desire.
Note: The commissioners’ proceedings shall
not be effectual until the court shall have
accepted their report and rendered judgment in
accordance with their recommendations. [Sec.
7, Rule 67]
Page 209 of 525
REMEDIAL LAW
Action upon commissioner’s report
a. Upon the expiration of the period of 10 days
for the filing of objections to the
commissioner’s report, or
b. Before the expiration of such period but
after all the interested parties have filed
their objections to the report or their
statement of agreement,
The court may:
1. After hearing, accept the report and render
judgment in accordance therewith, or
2. For cause shown, recommit the same to
the commissioners for further report of
facts, or
3. Set aside the report and appoint new
commissioners, or
4. Accept the report in part and reject it in part.
The court may make such order or render such
judgment as shall secure to the
1. Plaintiff - the property essential to the
exercise of his right of expropriation, and to
the
2. Defendant - just compensation for the
property so taken.
[Sec. 8, Rule 67]
The appointment of commissioners to
ascertain just compensation for the property
sought to be taken is a mandatory
requirement in expropriation cases. [2 Riano
301, 2016 Bantam Ed.]
i. Rights of Plaintiff Upon
Judgment and Payment
The plaintiff shall have the right to:
a. Enter upon the property expropriated and
to appropriate it for the public use or
purpose defined in the judgment, or
b. Retain it should he have taken immediate
possession thereof under the provisions of
Sec. 2, Rule 67.
[Sec. 10, Rule 67]
Note: Such rights of the plaintiff are not delayed
by an appeal from the judgment. [Sec. 11, Rule
67]
U.P. LAW BOC CIVIL PROCEDURE
When the rights arise
a. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from
the taking of the possession of the
property, or
b. After tender to him of the amount so fixed
and payment of the costs. [Sec. 10, Rule
67]
When payment is to the court
If the ownership as to the property is
uncertain or there are conflicting claims, the
court may order that the payment be made to
the court for the benefit of the person adjudged
to be entitled thereto. This is to enable the
plaintiff to enter the property or retain it. [Sec.
9, Rule 67]
If the defendant and his counsel absent
themselves from the court, or decline to
receive the amount tendered, the same shall
be ordered to be deposited in court and such
deposit shall have the same effect as actual
payment thereof to the defendant or the person
ultimately adjudged entitled thereto. [Sec. 10,
Rule 67]
Effect of non-payment of just compensation
Non-payment of just compensation does not
entitle the private landowner to recover
possession of the expropriated lots. However,
in cases where the government failed to pay
just compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall have
the right to recover possession of their
property. [Yujuico v. Atienza, G.R. No. 164282
(2005)]
j. Effect of Recording Judgment
Contents of the judgment
The judgment rendered shall state definitely:
a. By an adequate description, the particular
property or interest therein expropriated,
and
b. The nature of the public use or purpose for
which it is expropriated.
[Sec. 13, Rule 67]
Page 210 of 525
REMEDIAL LAW
When title to property vests
a. Personal property - upon payment of just
compensation. [Sec. 10, Rule 67]
b. Real property - Upon
1. Payment of just compensation; and
2. Registration of property (by recording
of the judgment in the registry of deeds
where the property is situated)
[Sec. 13, Rule 67]
10. FORECLOSURE OF REAL
ESTATE MORTGAGE
Foreclosure of mortgage is the process by
which a mortgagee acquires an absolute title to
the property of which he had previously been
only the conditional owner, or upon which he
had previously a mere lien or encumbrance.
[Benedicto v. Yulo, G.R. No. L-8106 (1913)]
Foreclosure is the necessary consequence of
non-payment of mortgage indebtedness. The
mortgage can be foreclosed only when:
1. The debt remains unpaid at the time it is
due [Producers Bank v. CA, G.R. No.
111584 (2001)], or
2. In case of default in the payment of
obligation [PNB v. CA, G.R. No. 126908
(2003)]
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
therein. [1 Regalado 852, 2010 Ed.]
a. Kinds of Foreclosure
i. Judicial Foreclosure
Judicial foreclosure is a mode of foreclosure
that is done pursuant to Rule 68 of the Rules of
Court. [2 Riano 313, 2016 Bantam Ed.]
ii. Extrajudicial Foreclosure
Extrajudicial foreclosure is a mode of
foreclosure that is done pursuant to Act 3135,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

as amended by Act 4118. [2 Riano 313, 2016 whichever is earlier.

Bantam Ed.] [Sec. 47, R.A. 8791]

Judicial foreclosure vs. Extrajudicial b. Need for Special Power of

foreclosure Attorney
Judicial Extrajudicial
foreclosure foreclosure Extrajudicial foreclosure is the mode to be used
Requires court No court intervention if there is a special power inserted in the real
intervention necessary estate mortgage contract allowing an
Right of redemption extrajudicial foreclosure sale. Where there is
exists; mortgagor has no such special power, the foreclosure shall be
There is only an a right to redeem the done judicially following Rule 68. [2 Riano 313,
equity of property within one 2016 Bantam Ed.]
redemption. [Huerta year from registration
Alba Resort, Inc. v. of the deed of sale. c. Authority to Foreclose
CA, G.R. No. [Huerta Alba Resort, Judicially
128567 (2000)] Inc. v. CA, G.R. No.
128567 (2000), citing Nature of the action
Act 3135] An action to foreclose a real estate mortgage
Governed by Rule Governed by Act may be rightly considered as an action
68 3135 involving interest in real property, hence a real
No deficiency action. [2 Riano 312-313, 2016 Bantam Ed.]
judgment because
There could be a there is no judicial Jurisdiction
deficiency proceeding in the Under BP 129, where the action is one
judgment. [Sec. 6, foreclosure of the involving title to, or possession of, real
Rule 68] mortgage itself. [1 property, the determination of jurisdiction shall
Regalado 859, 2010 be made by inquiring into the assessed value
Ed.] of the property. From this point of view,
Deficiency judgment Recovery of exclusive original jurisdiction would fall
shall be rendered, deficiency is through either in the MTC or the RTC depending on
on motion. [1 an independent the assessed value. [2 Riano 312-313, 2016
Regalado 859, 2010 action. [1 Regalado Bantam Ed.]
Ed.] 859, 2010 Ed.]
Exception: Juridical d. Procedure
Exception: persons shall have
Mortgagor may the right to redeem Form
exercise right of until, but not after, the The complaint shall set forth:
redemption within registration of the a. The date and due execution of the
one year after the certificate of mortgage;
sale, when the loan foreclosure sale with b. Its assignments, if any;
or credit the Register of Deeds c. The names and residences of the
accommodation is which in no case shall
mortgagor and the mortgagee;
granted by a bank be more than 3
d. A description of the mortgaged property;
[Sec. 47, R.A. 8791] months after
foreclosure,

Page 211 of 525

U.P. LAW BOC CIVIL PROCEDURE
e. A statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage;
f. The amount claimed to be unpaid; and
g. The names and residences of all persons
having or claiming an interest in the
property subordinate in right to the holder
of the mortgage.
• Such persons shall be made
defendants in the action.
[Sec. 1, Rule 68]
i. Where to File
Venue
A foreclosure action must be brought in the
RTC of the province where the land or any
part thereof is situated. If a mortgage
contract covers several distinct parcels of land
situated in different provinces, the action may
be brought in the RTC of any of the provinces
and the judgment will be enforceable against
any of the parcels of land involved. [Monte de
Piedad v. Rodrigo, G.R. No. L-42928 (1936)]
ii. Where to Sell
In Judicial Foreclosure
When the defendant fails to pay the amount of
the judgement ascertaining the amount due to
the plaintiff upon the mortgage debt, the court,
upon motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
[Sec. 3, Rule 68]
Under Rule 39, the notice of sale shall specify
the place, date, and exact time of the sale. The
place of the sale may be agreed upon by the
parties.
In the absence of such agreement, the sale of
real property shall be held in the office of the
clerk of court in the RTC or MTC which
issued the writ, or which was designated by
the appellate court. [Sec. 15, Rule 39]
Page 212 of 525
REMEDIAL LAW
In Extrajudicial Foreclosure
Said sale cannot be made legally outside of the
province in which the property sold is situated;
and in case the place within said province in
which the sale is to be made is subject to
stipulation, such sale shall be made in said
place or in the municipal building of the
municipality in which the property or part
thereof is situated. [Sec. 2, Act 3135]
iii. Posting Requirement
Judicial Foreclosure Requirement
Before the sale of real property, it is required
that there be posting for 20 days in 3 public
places, preferably in conspicuous areas of the
municipal or city hall, post office, and public
market in the municipality or city where the sale
is to take place. Such notice must particularly
describe the property and state where the
property is to be sold. [Sec 15(c), Rule 39]
Extrajudicial Foreclosure Requirement
Notice shall be given by posting notices of the
sale for not less than 20 days in at least 3
public places of the municipality or city where
the property is situated. [Sec. 3, Act 3135]
Effect of failure to Post Notice
The failure to post a notice is not per se a
ground for invalidating the sale provided that
the notice thereof is duly published in a
newspaper of general circulation. [DBP v.
Aguirre, G.R. No. 144877 (2001)]
iv. Publication Requirement
1. Sufficiency of Newspaper
Publication
Judicial Foreclosure
If the assessed value of the property exceeds
P50,000, one must also publish a copy of the
notice once a week for 2 consecutive weeks in
one newspaper having general circulation in
the province or city. [Sec. 15(c), Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
Extrajudicial Foreclosure
If such property is worth more than P400, such
notice shall also be published once a week for
at least three consecutive weeks in a
newspaper of general circulation in the
municipality or city. [Sec. 3, Act 3135]
2. Need for Republication in Case
of Postponement
During extrajudicial foreclosure proceedings
under Act 3135, republication as well as
reposting of the notice of sale is required if the
foreclosure does not proceed on the date
originally intended. The lack of republication of
the notice of the foreclosure sale renders it
void. [Metrobank v. Nikko, G.R. No. 178479,
(2009)]
3. Personal Notice to The
Mortgagor When and When Not
Needed
Judicial foreclosure
The mortgagor is notified through the service of
summons.
[Sec. 1, Rule 68]
Extrajudicial foreclosure
General Rule: Personal notice to the
mortgagor in extrajudicial foreclosure
proceedings is not necessary, and posting
and publication will suffice.
Exception: When the parties stipulate that
personal notice is additionally required to be
given the mortgagor. Failure to abide by the
general rule, or its exception, renders the
foreclosure proceedings null and void.
[Paradigm v. BPI, G.R. No. 191174 (2017)]
Page 213 of 525
REMEDIAL LAW
e. Possession by Purchaser of
Foreclosed Property
Judicial Foreclosure
General Rule: Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption, the purchaser at the
auction sale or last redemptioner, if any, shall
be entitled to the possession of the property.
• Order of confirmation; After the
foreclosure sale, the mortgagee should file
a motion for the confirmation of the sale.
Such requires notice and hearing. During
the hearing, the mortgagor will be allowed
to show why the sale should not be
confirmed. If, after such, the court finds
ground to confirm, it shall issue the order of
confirmation. [2 Riano 318-319, 2016
Bantam Ed.]
• Such order removes from the parties the
right to the property, and grants such right
to the purchaser, subject to redemption. [2
Riano 319, 2016 Bantam Ed.]
• Such order of confirmation is appealable.
[2 Riano 320, 2016 Bantam Ed.]
Exception: When a third party is actually
holding the same adversely to the judgement
obligor. In such a case, the purchaser or the
last redemptioner may secure a writ of
possession, upon motion, from the court.
[Sec. 3, Rule 68]
Extrajudicial Foreclosure
The purchaser may petition the RTC of the
province or place where the property or any
part thereof is situated, to give him
possession thereof during the redemption
period, furnishing bond in an amount
equivalent to the use of the property for a
period of twelve months, to indemnify the
debtor in case it be shown that the sale was
made without violating the mortgage or without
complying with the requirements of this Act.
[Sec. 7, Act 3135]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

f. Remedy of Debtor if
Foreclosure is Not Proper Equity of redemption vs. Right of
redemption
Judicial Foreclosure Right of
Equity of redemption
The debtor-mortgagor is allowed the redemption
opportunity to show why the sale should not be Right of defendant
confirmed during the hearing on the motion mortgagor to
Right of the debtor,
of confirmation of the sale. [2 Riano 318, extinguish the
his successor in
2016 Bantam Ed.] mortgage and retain
interest, or any
ownership of the
judicial creditor of
A failure to give notice of the hearing for motion property by paying the
said debtor or any
of confirmation is good cause for setting aside secured debt within the
person having a
the sale. [Grimalt v. Velasquez, 36 Phil 936 90 to 120-day period
lien on the property
(1917)] after entry of judgment
subsequent to the
or even after the
mortgage.
Extrajudicial Foreclosure foreclosure sale but
The debtor may, in the proceedings in which prior to its confirmation
possession was requested, but not later than Governed by Secs.
Governed by Rule 68
30 days after the purchaser was given 29-31, Rule 39
possession, petition that the sale be set aside
and the writ of possession cancelled, Note: What Secs. 2-3, Rule 68 provide for is
specifying the damages suffered by him, the mortgagor’s equity of redemption. This may
because the mortgage was not violated or the be exercised by him even beyond the period to
pay the judgment obligation (i.e. 90-120 days)
sale was not made in accordance with the
and even after the foreclosure sale itself,
provisions hereof. [Sec. 8, Act 3135]
provided it be before the order of the
confirmation of sale. [Rosales v. Alfonso, G.R.
g. Redemption No. 137792 (2003)]

There is no right of redemption in a judicial i. Who May Redeem

foreclosure under Rule 68. This right exists
only in extrajudicial foreclosure where there
is always a right of redemption within one year
from the date of sale, but interpreted by the
court to mean one year from the registration of
the sale.
Judicial Foreclosure
The equity of redemption is the mortgagor’s
equity to be able to extinguish the mortgage
and retain ownership of the property. [2 Riano
316, 2016 edition]

In judicial foreclosure, there is only an equity Extrajudicial Foreclosure

of redemption which can be exercised prior to
the order of confirmation of the foreclosure
sale. This means that after the foreclosure sale
but before its confirmation, the mortgagor may
exercise his right to pay the proceeds of the
sale and prevent the confirmation of the sale.
• Exception: There is a right of redemption
in a judicial foreclosure if the foreclosure is
in favor of banks, as provided for in the
General Banking Law. [Sec. 47]
The debtor, his successors in interest or any
judicial creditor or judgment creditor of said
debtor, or any person having a lien on the
property subsequent to the mortgage or deed
of trust under which the property is sold, may
redeem the same. [Sec. 6, Act 3135]
Note: The period for redemption in extrajudicial
foreclosure is shortened when the mortgagor is
a juridical person. The period of redemption is

Page 214 of 525

U.P. LAW BOC CIVIL PROCEDURE
“until but not after” the registration of certificate
of sale with the Register of Deeds, “which in no
case shall be more than 3 months after
foreclosure, whichever is earlier.” [2 Riano 317,
2016 Bantam Ed.]
ii. Amount of Redemption Price
In equity of redemption, the price that needs
to be paid in order to retain ownership of the
property and extinguish the mortgage would be
the debt amount. [2 Riano 317, 2016 Bantam
Ed.]
With respect to the right of redemption, the
amount of the purchase price differs depending
on whether the entity redeeming is a bank or
not.
1. Bank redemptioner - The redemption
price shall be:
a. The amount due under the mortgage
deed,
b. Interest rate specified in the mortgage,
and
c. Expenses incurred by the bank from
the sale of the property.
2. Non-bank redemptioner - The
redemption price shall be
a. Full amount paid by the purchaser,
b. 1% interest per month on the
purchase price, up to the time of
redemption,
c. Taxes assessed that purchaser paid,
and
d. Interest of 1% on the taxes assessed.
[De Leon 557, Comments and Cases on Credit
Transactions, 2016 Ed.]
iii. Period for Redemption
Right of
Equity of redemption
redemption
Period is 1 year
Period is 90-120 days
from date
after entry of judgment
registration
or even after
certificate of sale.
Page 215 of 525
REMEDIAL LAW
foreclosure sale but
prior to confirmation.
iv. Effect of Pendency of Action for
Annulment of Sale
The pendency of a suit for annulment of the
foreclosure proceedings does not defeat the
right of the purchaser to a writ of possession to
which the purchaser becomes entitled to as a
matter of right.
Note: An injunction to prohibit the enforcement
of the writ is entirely out of place. [Carpo v.
Chua, 471 SCRA 471 (2005)]
h. Writ of Possession
The writ of possession is a means of
recognizing and enforcing the rights of the
purchaser, since the confirmation of the
foreclosure sale operates to divest all parties to
the action of their rights in the property and
vests them in the purchaser. [2 Riano 320,
2016 Bantam Ed.]
i. Ministerial Duty of the Court
The purchaser shall be entitled to a writ of
possession upon:
a. Finality of the order of confirmation, or
b. Expiration of the period for redemption.
Such writ shall be issued upon motion. Hence
the purchaser or last redemptioner must file a
motion for the issuance of a writ of possession.
[2 Riano 320, 2016 Bantam Ed.]
ii. Enforcement Against Third Parties
The obligation of a court to issue a writ of
possession ceases to be ministerial when a
third-party in possession of the property claims
a right that is adverse to that of the debtor-
of mortgagor.
of
U.P. LAW BOC CIVIL PROCEDURE
Remedy
Where such third party claim and possession
exist, the trial court should conduct a hearing to
determine the nature of the adverse
possession. [Barican v. IAC, G.R. No. 79906,
(1988)] Such is the case because a third party
cannot be dispossessed on the strength of a
mere possessory writ. [De Leon 589,
Comments and Cases on Credit Transactions,
2016 Ed.]
iii. Pendency of action for annulment
of sale
A pending suit for annulment of the mortgage
or annulment of the foreclosure proceedings
does not defeat the right of the purchaser to
a writ of possession to which the purchaser
is entitled to as a matter of right. An injunction
to prohibit the issuance or enforcement of the
writ is entirely out of place. [Carpo v. Chua,
G.R. No. 150773, (2005)]
i. Annulment of Sale
See discussion on 6. Remedy of debtor if
foreclosure not proper.
11. PARTITION
Definition
Partition is the separation, division and
assignment of a thing held in common among
those to whom it may belong. Every act which
is intended to put an end to indivision among
co-heirs and legatees or devisees is deemed to
be a partition. [Marcos v. Heirs of Isidro Bangi,
G.R. No. 185745 (2014)]
Partition may be:
1. Judicial – Procedure is Rule 69
2. Extrajudicial – No court intervention is
required
Nothing in Rule 69 contained shall be
construed so as to restrict or prevent persons
holding real estate jointly or in common from
making an amicable partition thereof by
Page 216 of 525
REMEDIAL LAW
agreement and suitable instruments of
conveyance without recourse to an action.
[Sec. 12, Rule 69]
Nature
An action for partition and accounting under
Rule 69 is in the nature of an action quasi in
rem. Such action is essentially for the purpose
of affecting the defendant’s interest in a
specific property and not to render a judgment
against him. [Valmonte v. CA, G.R. No. 108538
(1996)]
When partition can be done
General rule: Prescription does not run in
favor of a co-owner or co-heirs as long as there
is a recognition of the co-ownership, expressly
or impliedly. [2 Riano 416, 2012 Bantam Ed.]
Exception: If a co-owner asserts adverse title
to the property, in which case, the prescription
period runs from such time of assertion of the
adverse title. [De Castro v. Echarri, G.R. No.
5609 (1911)]
a. Who May File Complaint; Who
Should Be Made Defendants
Who may file
A person having the right to compel the
partition of real estate. [Sec. 1, Rule 69]
Who should be made defendants
All other persons interested in the property.
[Sec. 1, Rule 69]
Jurisdiction
The courts with jurisdiction over the action for
partition are the MTC or the RTC depending on
the value of the property.
If the value of the property is below such
threshold, then the MTC has jurisdiction. If the
value is greater, then the RTC has jurisdiction.
b. Matters to Allege in the
Complaint for Partition
a. The nature and extent of his title;
b. Adequate description of the real estate of
which partition is demanded; and
U.P. LAW BOC CIVIL PROCEDURE
c. Join as defendants all other persons
interested in the property.
[Sec. 1, Rule 69]
d. Demand for accounting of the rents, profits,
and other income from the property to
which he may be entitled to as his share
[Sec. 8, Rule 69] Since these cannot be
demanded in another action (because they
are part of the cause of action for partition),
they are barred if not set up. [2 Riano 420,
2012 Bantam Ed.]
c. Two Stages in Every Action for
Partition
First stage - Determination of the propriety
of partition
This involves a determination of whether the
subject property is owned in common and
whether all the co-owners are made parties in
the case. [Lacbayan v. Samoy, G.R. No.
165427 (2011)]
The order may also require an accounting of
rents and profits recovered by the defendant.
[Miranda v. CA, G.R. No. L-33007 (1976)]
Remedy
A final order decreeing partition and accounting
may be appealed by any party aggrieved
thereby. [Sec. 2, Rule 69]
If not appealed, then the parties may partition
the common property in the way they want. If
they cannot agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be executed.
[De Mesa v. CA, G.R. No.109387 (1994)]
Second stage - Actual partitioning of the
subject property
There can be no partition again because there
is no more common property. [Noceda v. CA,
G.R. No. 119730 (1999)]
The action for partition is subject to multiple
appeals and would require a record on
appeal. [Roman Catholic Archbishop of Manila
v. CA, G.R. No. 77425 (1991)]
Page 217 of 525
REMEDIAL LAW
d. Order of Partition and Partition
by Agreement
Order of partition
If after the trial the court finds that the plaintiff
has the right thereto, it shall order the partition
of the real estate among all the parties in
interest. [Sec. 2, Rule 69]
Partition by agreement
a. The parties may, if they are able to agree,
make the partition among themselves by
proper instruments of conveyance,
b. The court shall confirm the partition so
agreed upon by all the parties, and
c. Such partition, together with the order of
the court confirming the same, shall be
recorded in the registry of deeds of the
place in which the property is situated.
[Sec. 2, Rule 69]
e. Partition by Commissioners;
Appointment of
Commissioners,
Commissioner’s Report; Court
Action Upon Commissioner’s
Report
When proper
When the parties are unable to agree upon the
partition. [Sec. 3, Rule 69]
Action of the court
a. The court shall appoint not more than 3
competent and disinterested persons as
commissioners to make the partition,
b. Commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court shall
direct. [Sec. 3, Rule 69]
Oath of commissioners
Before making such a partition, the
commissioners shall take and subscribe an
oath that they will faithfully perform their duties
as commissioners, which oath shall be filed in
court with the other proceedings in the case.
[Sec. 4, Rule 69]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Duties of commissioners Note: No proceeding had before or conducted

a. View and examine the real estate, after due by the commissioners shall pass the title to the
notice to the parties to attend at such view property or bind the parties until the court shall
and examination, have accepted the report of the commissioners
b. Hear the parties as to their preference in and rendered judgment thereon.
the portion of the property to be set apart to [Sec. 6, Rule 69]
them and the comparative value thereof,
and Hearing on the report
c. Set apart the same to the parties in lots or a. Upon the expiration of the period of 10 days
parcels as will be most advantageous and to file objections, or
equitable, having due regard to the b. Even before the expiration of such period
improvements, situation and quality of the but after the interested parties have filed
different parts thereof. their objections to the report or their
[Sec. 4, Rule 69] statement of agreement therewith, the
court may
Note: The provision authorizes the 1. Upon hearing, accept the report and
commissioners merely to make or effect the render judgment in accordance
partition. It does not grant them the authority to therewith, or,
adjudicate on questions of title or ownership. [1 2. For cause shown, recommit the same
Riano 424, 2012 Bantam Ed.] to the commissioners for further report
of facts, or
Assignment of real estate to one party 3. Set aside the report and appoint new
General rule: When it is made to appear to the commissioners, or
commissioners that the real estate, or a portion 4. Accept the report in part and reject it in
thereof, cannot be divided without prejudice to part.
the interests of the parties, the court may order The court may make such order and render
it assigned to one of the parties willing to take such judgment as shall effectuate a fair and just
the same, provided he pays to the other parties partition of the real estate, or of its value, if
such amounts as the commissioners deem assigned or sold as above provided, between
equitable. the several owners thereof.
[Sec. 7, Rule 69]
Exception: If one of the interested parties asks
that the property be sold instead of being so f. Judgment and Its Effects
assigned, in which case the court shall order
the commissioners to sell the real estate at Contents of
public sale under such conditions and within Effects of judgment
judgment
such time as the court may determine.
If actual partition is properly made
[Sec. 5, Rule 69]
Judgment shall state
Commissioner’s report definitely, by metes
Judgment shall vest
a. The commissioners shall make a full and and bounds and
in each party to the
accurate report to the court of all their adequate
action in severalty
proceedings as to the partition, or the description, the
the portion of the real
assignment of real estate to one of the particular portion of
estate assigned to
parties, or the sale of the same. the real estate
b. Upon the filing of such a report, the COC him
assigned to each
shall serve copies thereof on all the party
interested parties with notice that they are If the whole property is assigned to one of
allowed 10 days within which to file the parties after payment
objections to the findings of the report, if
they so desire.

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Judgment shall vest Note: If a co-owner repudiates the co-

Judgment shall state ownership and makes known such repudiation
in the party making
the fact of such to the other co- owners, then partition is no
the payment the
payment and of the longer a proper remedy of the aggrieved co-
whole of the real
assignment of the owner. He must file an accion reivindicatoria,
estate free from any
real estate to the which is prescriptible. [Roque v. IAC, G.R. No.
interest on the part of
party making the 75886 (1988)]
the other parties to
payment
the action
i. When Partition is Not Allowed
If the property is sold and the sale
confirmed by the court
The following instances are cases when a co-
Judgment shall vest
Judgment shall state owner cannot demand partition, to wit:
the real estate in the
the name of the a. There is an agreement among the co-
purchaser or
purchaser or owners to keep the property undivided for
purchasers making
purchasers and a a certain period of time not exceeding 10
the payment or
definite description years. The term may however be extended
payments, free from
of the parcels of real by a new agreement. [Art. 494, Civil Code]
the claims of any of
estate sold to each b. When partition is prohibited by the donor or
the parties to the
purchaser testator for a period not exceeding 20
action
[Sec. 11, Rule 69] years. [Art. 494, Civil Code]
c. When a partition is prohibited by law. [Art
A certified copy of the judgment shall in either 494, Civil Code]
case be recorded in the registry of deeds of d. When the property is not subject to a
the place in which the real estate is situated,
physical division and to do so would render
and the expenses of such recording shall be
it unserviceable for the use for which it is
taxed as part of the costs of the action. [Sec.
11, Rule 69] intended. [Art. 495, Civil Code]
e. When the condition imposed upon
g. Partition of Personal Property voluntary heirs before they can demand
partition has not yet been fulfilled. [Art.
The provisions of Rule 69 shall apply to 1084, Civil Code]
partitions of estates composed of personal
property, or of both real and personal property,
in so far as the same may be applicable [Sec. 12. FORCIBLE ENTRY AND
13, Rule 69] UNLAWFUL DETAINER
h. Prescription of Action Ejectment cases are summary proceedings
intended to provide an expeditious means of
General rule: protecting actual possession of property.
The right of action to demand partition does [Tubiano v. Razo, G.R. No. 132598 (2000)]
not prescribe. [De Castro v. Echarri, G.R. No.
5609 (1911)] The actions for forcible entry and unlawful
detainer belong to the class of actions known
Exception: by the generic name accion interdictal
Where one of the interested parties openly and (ejectment) where the issue is the right of
adversely occupies the property without physical or material possession of the subject
recognizing the co-ownership [Cordova v. real property independent of any claim of
Cordova, G.R. No. L-9936 (1958)] ownership by the parties involved. [A.

Page 219 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Francisco Realty and Development Corp. v. In order to constitute force, the act of going to
CA, G.R. No. 125055 (1988)] the property and excluding the lawful
possessor necessary implies the exertion of
a. Definitions and Distinction force over the property which is all that is
necessary and sufficient to show that the action
Forcible entry Unlawful detainer is based on Sec. 1, Rule 70. [Bunyi v. Factor,
(detentacion) (desahucio) G.R. No. 172547 (2009)]
Possession is
Possession of land initially lawful but it b. Distinguish: Forcible Entry,
by the defendant is becomes illegal by Unlawful Detainer, Accion
unlawful from the reason of the Publiciana, and Accion
beginning as he termination of his Reivindicatoria
acquires possession right to possession
by force, intimidation, of the property under Three (3) kinds of action for recovery of
strategy, threat, or his contract (express possession
stealth (FISTS) [Dikit or implied) with the Accion Accion Accion
v. Ycasiano, G.R. plaintiff [Dikit v. interdictal publiciana reivindicatoria
No. L-3621 (1951)] Ycasiano, G.R. No.
Summary Plenary
L-3621 (1951)] action for action for
No previous demand recovery of recovery of
for the defendant to Demand is physical real right of
An action for
vacate the premises jurisdictional [Sec. 2, possession possession
recovery of
is necessary. [Sec. 2, Rule 70; Medel v. where the when
possession
Rule 70; Medel v. Militante, G.R. No. dispossessio dispossessi
based on
Militante, G.R. No. 16096 (1921)]. n has not on has
ownership [1
16096 (1921)] lasted for lasted for
Regalado 872,
Plaintiff must prove more than more than
2010 Ed.]
one year [1 one year [1
that he was in prior
Plaintiff need not Regalado Regalado
physical possession
have been in prior 871-872, 872, 2010
of the premises until
physical possession 2010 Ed.] Ed.]
he was deprived
[Pharma Industries,
thereof by defendant RTC has jurisdiction if the
Inc. v. Pajarillaga, value of the property exceeds
[Pharma Industries,
G.R. No. 53788 P20,000 outside Metro
Inc. v. Pajarillaga,
(1980)] Manila or P50,000 within
G.R. No. 53788 MTC has
(1980)] Metro Manila.
jurisdiction
Period is counted [Sec. 33(2),
MTC has jurisdiction if value
from the date of last B.P. 129, as
The 1-year period is of property does not exceed
demand [Sarona v. amended]
generally counted the above amounts
Villegas, G.R. No. L-
from the date of
22984 (1968)]] or [Sec. 19 and 33, B.P. 129, as
actual entry on land
last letter of demand amended]
[1 Regalado 873,
[DBP v. Canonoy,
2010 Ed.]
G.R. No. L-29422,
(1970)]

Page 220 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c. Jurisdiction in Accion Exception: In case of stealth or strategy, from

Publiciana and Accion the time plaintiff learned of entry. [Vda. de
Reivindicatoria Prieto v. Reyes, G.R. No. L-21740 (1965)]

b. For unlawful detainer

Accion publiciana and accion
It is counted from the date of last demand.
reivindicatoria
[Sarona v. Villegas, G.R. No. L-22984 (1968)]
a. RTC has jurisdiction where the assessed
value of the property exceeds PHP 20,000
or, in Metro Manila, PHP 50,000; Against whom may the action be
maintained
b. MTC has jurisdiction if the assessed value
Person or persons unlawfully withholding or
does not exceed said amounts
depriving of possession, or any person/s
[Secs. 19 and 33, B.P. 129, as amended by
claiming under them. [Sec. 1, Rule 70]
R.A. 7691]

Where the basic issue is not possession but e. Pleadings Allowed

interpretation, enforcement and/or rescission
of the contract, it is no longer an ejectment suit. The only pleadings allowed to be filed are the
[Villena v. Chavez, G.R. No. 148126 (2003)] a. Complaint
b. Compulsory counterclaim pleaded in the
Accion interdictal answer
Exclusive original jurisdiction over forcible c. Cross-claim pleaded in the answer, and
entry and unlawful detainer suits is with the d. Answers thereto
MTC. [Sec. 33(2), B.P. 129] [Sec. 4, Rule 70]
Note: Pleadings must be verified. [Sec. 4, Rule
d. Who May Institute the Action 70]
and When; Against Whom the
What must be alleged in the complaints
Action May be Maintained Forcible entry Unlawful detainer
a. Plaintiff had prior a. Initially,
In Forcible Entry
physical possession of
A person deprived of possession of any land or
building by force, intimidation, strategy, threat, possession of the property by the
or stealth. property defendant was
b. The defendant by contract
In unlawful detainer deprived him of with or by
a. Lessor, vendor, vendee, or other person such possession tolerance of
against whom any land or building is
by means of the plaintiff
unlawfully withheld; or
b. His legal representatives or assigns. FISTS [Abad v. b. Eventually,
[Sec. 1, Rule 70] Farrales, G.R. No. such
178635 (2011), possession
Period of filing citing Sec. 1, Rule became illegal
Within 1 year after the unlawful deprivation or 70] upon notice by
withholding of possession. [Sec. 1, Rule 70] c. That the plaintiff to
complaint was defendant of
Reckoning points:
a. For forcible entry filed within 1 year the termination
General Rule: It is counted from the date of from of the latter's
actual entry on the land. [1 Regalado 873, 2010 dispossession right of
Ed.] [Sec. 1, Rule 70; possession

Page 221 of 525

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

1 Regalado 533, c. Thereafter, the •Affirmative and negative defenses not

2010 Ed.] defendant pleaded therein shall be deemed
remained in waived, except lack of jurisdiction over
Note: First two the subject matter.
possession of
• Cross-claims and compulsory
requirements are the property
counterclaims not asserted in the
jurisdictional [Abad v. and deprived answer shall be considered barred.
Farrales, G.R. No. the plaintiff of b. The answer to counterclaims or cross-
178635 (2011)] the enjoyment claims shall be served and filed within 10
thereof, and days from service of the answer in which
d. Within one they are pleaded.
[Sec. 6, Rule 70]
year from the
last demand on Effect of failure to answer
defendant to a. Should the defendant fail to answer the
vacate the complaint within the period above
property, the provided, the court, motu proprio or on
plaintiff motion of the plaintiff, shall render
instituted the judgment as may be warranted by the
facts alleged in the complaint and limited to
complaint for
what is prayed for therein.
ejectment • The court may in its discretion reduce
[French v. CA, G.R. the amount of damages and attorney’s
No. 220057 (2017)] fees claimed for being excessive or
otherwise unconscionable, without
Note: Mere failure to pay rent does not ipso prejudice to the applicability of Sec.
facto make unlawful the tenant’s possession. It 3(c), Rule 9 if there are two or more
is the demand to vacate and refusal to vacate defendants.
which makes unlawful the withholding of [Sec. 7, Rule 70]
possession. [Canaynay v. Sarmiento, G.R. No.
L-1246 (1947)] Preliminary conference
A preliminary conference shall be held not later
f. Action on the Complaint than 30 days after the last answer is filed.
• The provisions of Rule 18 on pre-trial shall
Motu proprio dismissal be applicable to the preliminary conference
The court may, from an examination of the unless inconsistent with the provisions of
allegations in the complaint and such evidence Rule 70
as may be attached thereto, dismiss the case a. The failure of the plaintiff to appear in the
outright on any of the grounds for the preliminary conference shall be cause for
dismissal of a civil action which are apparent the dismissal of his complaint.
therein [Sec. 5, Rule 70] b. The defendant who appears in the
absence of the plaintiff shall be entitled to
Issuance of summons judgment on his counterclaim in
If no ground for dismissal is found, it shall accordance with the next preceding
forthwith issue summons. [Sec. 5, Rule 70] section.
c. All cross-claims shall be dismissed.
Answer d. If a sole defendant shall fail to appear,
a. Within 10 days from service of summons, the plaintiff shall likewise be entitled to
the defendant shall file his answer to the judgment in accordance with the next
complaint and serve a copy thereof on the preceding section.
plaintiff.

Page 222 of 525

U.P. LAW BOC CIVIL PROCEDURE
• This procedure shall not apply where
one of two or more defendants sued
under a common cause of action who
had pleaded a common defense shall
appear at the preliminary conference.
No postponement of the preliminary
conference shall be granted except for highly
meritorious grounds and without prejudice to
such sanctions as the court in the exercise of
sound discretion may impose on the movant.
[Sec. 8, Rule 70]
Submission of affidavits and position
papers
Within 10 days from receipt of the order
mentioned in the next preceding section, the
parties shall submit:
a. The affidavits of their witnesses,
b. Other evidence on the factual issues
defined in the order, and
c. Position papers setting forth the law and
the facts relied upon by them. [Sec. 10,
Rule 70]
Judgment
The court shall render judgment:
a. Within 30 days after receipt of the affidavits
and position papers, or
b. After the expiration of the period for filing
the same.
However, should the court find it necessary to
clarify certain material facts, it may, during
the said period, issue an order
a. Specifying the matters to be clarified, and
b. Require the parties to submit affidavits or
other evidence on the said matters within
10 days from receipt of said order.
Judgment shall be rendered within 15 days
after the receipt of the last affidavit or the
expiration of the period for filing the same.
[Sec. 11, Rule 70]
g. When Demand is Necessary
Unless otherwise stipulated, such action by the
lessor shall be commenced only after
demand. [Sec. 2, Rule 70]
Page 223 of 525
REMEDIAL LAW
Contents
Demand made upon the lessee to
a. Pay or comply with the conditions of the
lease, and
b. Vacate.
[Sec. 2, Rule 70]
Form
a. By service of written notice of such demand
upon the person found on the premises, or
b. By posting of the written notice on the
premises if no person be found thereon, or
[Sec. 2, Rule 70]
c. Orally. [Jakihaca v. Aquino, G.R. No.
83982 (1990)]
Period to comply with demand
The defendant should comply with the demand
within
a. 15 days in the case of lands, or
b. 5 days in the case of buildings
[Sec. 2, Rule 70]
When demand not required:
a. When parties stipulate that demand shall
not be necessary [Sec. 2, Rule 70]; or
b. When action is predicated on the expiration
of the lease. [Labastida v. CA, G.R. No.
110174 (1998)]
When possession unlawful
It is only when the defendant fails to comply
with the demand within the periods provided
by Sec. 2 that his possession becomes
unlawful. (Quevada v. Garcia, G.R. No. 140798
(2006)
A person who occupies the land of another at
the latter's tolerance or permission, without any
contract between them is necessarily bound by
an implied promise that he will vacate upon
demand, failing which, an action for unlawful
detainer may be instituted against him.
[Dakudao v. Consolacion, G.R. No. L-54753
(1983)]
Note: Demand is not required in forcible entry
suits [Dela Cruz v. CA, G.R. No. 139442
(2006)]
U.P. LAW BOC CIVIL PROCEDURE
h. Preliminary Injunction and
Preliminary Mandatory
Injunction
The court may grant preliminary injunction,
in accordance with the provisions of Rule 58, to
prevent the defendant from committing further
acts of dispossession against the plaintiff. [Sec.
15, Rule 70]
Preliminary mandatory injunction
A possessor deprived of his possession
through forcible entry or unlawful detainer may,
within 5 days from the filing of the complaint,
present a motion in the action for forcible entry
or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to
restore him in his possession. The court shall
decide the motion within 30 days from the filing
thereof. [Sec. 15, Rule 70]
When available
a. Within 5 days from the filing of the
complaint [Sec. 15, Rule 70]
b. On appeal to the RTC upon motion of the
plaintiff within 10 days from perfection of
appeal [Sec. 20, Rule 70]
Note: The injunction on appeal is to restore to
plaintiff in possession if the court is satisfied
that:
a. Defendant’s appeal is frivolous or dilatory,
or
b. The appeal of plaintiff is prima facie
meritorious.
[Sec. 20, Rule 70]
MTC can also issue a preliminary mandatory
injunction in an unlawful detainer case. [Day v.
RTC of Zamboanga, G.R. No. 71119 (1990)]
Preliminary preventive injunction
Preliminary preventive injunction is available in
either case. Note that Sec. 15 makes the
provisions of Rule 58 applicable to Rule 70. [1
Regalado 891, 2010 Ed.]
i. Resolving Defense of
Ownership
Page 224 of 525
REMEDIAL LAW
When the defendant raises the questions of
ownership in his pleadings and the question
of possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to determine
the issue of possession. [Sec. 33(2), B.P. 129,
as amended by R.A. 7691]
Refugia guidelines
a. The primal rule is that the principal issue
must be that of possession, and that
ownership is merely ancillary thereto, in
which case the issue of ownership may be
resolved but only for the purpose of
determining the issue of possession.
b. It must sufficiently appear from the
allegations in the complaint that what the
plaintiff really and primarily seeks is the
restoration of possession.
c. The inferior court cannot adjudicate on the
nature of ownership where the
relationship of lessor and lessee has
been sufficiently established in the
ejectment case, unless it is sufficiently
established that there has been a
subsequent change in or termination of that
relationship between the parties.
• This is because under Sec. 2(b), Rule
131, the tenant is not permitted to deny
the title of his landlord at the time of the
commencement of the relation of
landlord and tenant between them.
d. The rule in forcible entry cases, but not in
those for unlawful detainer, is that a party
who can prove prior possession can
recover such possession even against the
owner himself. Regardless of the actual
condition of the title to the property and
whatever may be the character of his prior
possession, if he has in his favor priority
in time, he has the security that entitles
him to remain on the property until he is
lawfully ejected by a person having a better
right through an accion publiciana or
accion reivindicatoria.
• Corollarily, if prior possession may be
ascertained in some other way, then
the inferior court cannot dwell upon or
intrude into the issue of ownership.
e. Where the question of who has prior
possession hinges on the question of
U.P. LAW BOC CIVIL PROCEDURE
who the real owner of the disputed
portion is, the inferior court may resolve
the issue of ownership and make a
declaration as to who among the
contending parties is the real owner. In the
same vein, where the resolution of the
issue of possession hinges on a
determination of the validity and
interpretation of the document of title or any
other contract on which the claim of
possession is premised, the inferior court
may likewise pass upon these issues. This
is because, and it must be so understood,
that any such pronouncement made
affecting ownership of the disputed
portion is to be regarded merely as
provisional, hence, does not bar nor
prejudice an action between the same
parties involving title to the land.
[Refugia v. CA, G.R. No. 118284 (1996)]
Judgment for ejectment cannot be enforced
against a co-owner who was not made a party
to the action. [Cruzcosa v. Concepcion, G.R.
No. L-11146 (1957)]
j. How to Stay the Immediate
Execution of Judgment
Judgment of MTC
General rule: Judgment of the MTC against
defendant in ejectment cases is immediately
executory upon motion.
Exceptions:
a. An appeal has been perfected and
b. The defendant who seeks to stay execution
files a sufficient supersedeas bond,
approved by the MTC and executed in
favor of the plaintiff to pay the rents,
damages, and costs accruing down to the
time of the judgment appealed from, and
c. During the pendency of the appeal, he
deposits with the appellate court the
amount of rent due from time to time under
the contract, if any, as determined by the
judgment of the MTC. In the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and
occupation of the premises for the
preceding month or period at the rate
Page 225 of 525
REMEDIAL LAW
determined by the judgment of the lower
court on or before the 10th day of each
succeeding month or period.
[Sec. 19, Rule 70]
Note: All these requisites must concur.
Judgment of the RTC
The judgment of RTC against the defendant
shall be immediately executory, without
prejudice to further appeal that may be taken
therefrom. [Sec. 21, Rule 70]
Summary procedure
General rule: All actions for forcible entry and
unlawful detainer shall be governed by the
summary procedure of Rule 70, irrespective of
the amount of damages or unpaid rentals
sought to be recovered.
Exceptions:
a. In cases covered by agricultural tenancy
laws; or
b. When the law otherwise expressly
provides.
[Sec. 3, Rule 70]
k. Prohibited Pleadings and
Motions
a. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
Sec. 12, Rule 70 (referral for conciliation)
b. Motion for a bill of particulars
c. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial
d. Petition for relief from judgment
e. Motion for extension of time to file
pleadings, affidavits or any other paper
f. Memoranda
g. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
h. Motion to declare the defendant in default
i. Dilatory motions for postponement
j. Reply
k. Third-party complaints
l. Interventions
[Sec. 13, Rule 70]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

13. CONTEMPT disobedience of preservation of the

its orders rights of private
Definition persons
Contempt of court is disobedience to the Intent is
Intent is not necessary
court by acting in opposition to its authority, necessary
justice, and dignity. Instituted by the
• It signifies not only a willful disregard or aggrieved party, or his
disobedience to the court’s orders but also State is the real successor, or someone
conduct tending to bring the authority of the prosecutor who has a pecuniary
court and administration of law into
interest in the right to be
disrepute, or, in some manner, to impede
protected
the due administration of justice. [Siy v.
NLRC, G.R. No. 158971 (2012)] Proof required is more
Proof required is
than mere
proof beyond
Nature preponderance of
reasonable doubt
The power to declare a person in contempt of evidence
court and in dealing with him accordingly is an If accused is If judgment is for
inherent power of the court. It is used as a acquitted, there respondent, there can
means to protect and preserve the dignity of can be no appeal be an appeal
the court, the solemnity of the proceedings, [1 Regalado 909, 2010 Ed.]
and administration of justice. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)] According to manner of commission
a. Direct contempt: Act committed in the
Generally, a non-party may not be liable for presence of or so near the court or judge
contempt unless he is guilty of conspiracy with as to obstruct or interrupt the proceedings
any of the parties in violating the court’s orders. before the same.
[Desa Enterprises Inc. v. SEC, G.R. No. L- b. Indirect contempt: One not committed in
45430 (1982)] the presence of the court. It is an act done
at a distance which tends to belittle,
a. Kinds of Contempt degrade, obstruct, or embarrass the court
and justice.
According to nature [Lorenzo Shipping v. Distribution Management,
a. Criminal contempt: Conduct directed G.R. No. 155849 (2011)]
against the authority and dignity of the
court or a judge acting judicially. Direct contempt Indirect contempt
b. Civil contempt: Failure to do something Summary in nature There is charge and
ordered to be done by a court or by a judge hearing
for the benefit of the opposing party.
Punishment Punishment
[Lorenzo Shipping v. Distribution Management,
a. If committed a. If committed
G.R. No. 155849 (2011)]
against the RTC: against RTC:
Criminal Fine of not Fine not
Civil contempt exceeding PHP exceeding PHP
contempt
Punitive in nature Remedial in nature 2,000 and/or 30,000 and/or
Purpose is to provide a imprisonment imprisonment
Purpose is to
remedy for an injured not exceeding not exceeding 6
preserve the
suitor and to coerce 10 days or both months or both
court’s authority
compliance with an b. If committed b. If committed
and to punish for
order; for the against the against MTC:

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

MTC: Fine not Fine not Other examples:

exceeding PHP exceeding PHP a. Willful and deliberate forum shopping [Sec.
200 and or 5,000 and/or 5, Rule 7]
b. Submission of pleadings containing
imprisonment imprisonment
derogatory, offensive, and malicious
not exceeding 1 not exceeding 1 statements submitted to the court [Re:
day or both month or both Letter of Atty. Noel Sorreda, A.M. No. 05-
Remedy is certiorari Remedy is appeal 3-4-SC (2005)]
or prohibition
Otherwise known as Otherwise known as Procedure
Contempt in Facie Constructive Summarily adjudged in contempt by such
Curiae Contempt court. [Sec. 1, Rule 71]
[1 Regalado 909, 2010 Ed.]
INDIRECT CONTEMPT
See Acts deemed punishable as indirect
Contempt, whether direct or indirect, may be
contempt below.
civil or criminal depending on the nature and
effect of contemptuous act. [Montenegro v.
Montenegro, G.R. No. 156829 (2004)] c. Remedy Against Direct
Contempt; Penalty
The real character of the proceedings in
contempt cases is to be determined by the The person adjudged in direct contempt by any
relief sought or by the dominant purpose. court may not appeal therefrom, but may avail
The proceedings are to be regarded as criminal himself of the remedies of certiorari or
when the purpose is primarily punishment, and prohibition. [Sec. 2, Rule 71]
civil when the purpose is primarily
compensatory or remedial. [Montenegro v. Effect of petition
Montenegro, G.R. No. 156829 (2004)] The execution of the judgment shall be
suspended pending resolution of such
b. Purpose and Nature of Each petition, provided such person file a bond fixed
by the court which rendered the judgment and
DIRECT CONTEMPT conditioned that he will abide by and perform
For a person to be adjudged guilty of direct the judgment should the petition be decided
contempt, he must commit a misbehavior in the against him.
presence of or so near a judge as to interrupt [Sec. 2, Rule 71]
the administration of justice. [SBMA v.
Rodriguez, G.R. No. 160270 (2010)] Penalties
Offense Penalty
Grounds Fine not exceeding PHP
If RTC or a court
Misbehavior in the presence of or so near a 2,000 or imprisonment
of equivalent or
court as to obstruct or interrupt the proceedings not exceeding 10 days
higher rank
before the same, including or both
a. Disrespect toward the court Fine not exceeding PHP
b. Offensive personalities toward others, or If lower court 200 or imprisonment not
c. Refusal to be sworn or to answer as a exceeding 1 day or both
witness, or to subscribe an affidavit or [Sec. 1, Rule 71]
deposition when lawfully required to do so.
[Sec. 1, Rule 71]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

d. Remedy Against Indirect equivalent to the lost

Contempt; Penalty thing [Rosario Textile
Mills v. CA, G.R. No.
The judgment or final order of a court in a case 137326 (2003)]
of indirect contempt may be appealed to the Penalty shall depend
proper court as in criminal cases. If committed upon the provisions of
against a person the law which authorizes
Effect of appeal or entity penalty for contempt
Execution of the judgment or final order exercising quasi- against such persons or
shall not be suspended until a bond is filed by judicial functions entities [Sec. 12, Rule
the person adjudged in contempt, in an amount
71]
fixed by the court front which the appeal is
taken, conditioned that if the appeal be decided
against him he will abide by and perform the e. How Contempt Proceedings
judgment or final order. Are Commenced
[Sec. 11, Rule 71]
DIRECT CONTEMPT
A contempt proceeding, whether civil or By whom initiated:
criminal, is still a criminal proceeding, hence, a. Generally, civil contempt proceedings
acquittal is a bar to a second prosecution. should be instituted by an aggrieved party,
The distinction is only for the purpose of or his successor, or someone who has
determining the character of the punishment to pecuniary interest in the right to be
be administered. [Santiago v. Anunciacion, protected.
G.R. No. 89318 (1990)] b. In criminal contempt proceedings, it is
generally held that the State is the real
Penalties prosecutor.
Offense Penalty [People v. Godoy, G.R. Nos. 115908-09
If committed (1995)]
Fine not exceeding PHP
against RTC, or
30,000 or imprisonment INDIRECT CONTEMPT
a court of
not exceeding 6 months, Two modes of commencing a proceeding
equivalent or
or both [Sec. 7, Rule 71] a. Proceedings for indirect contempt may be
higher rank
initiated motu proprio by the court
Fine not exceeding PHP against which the contempt was committed
If committed
500, or imprisonment not by an order or any other formal charge
against lower
exceeding 1 month, or requiring the respondent to show cause
court
both [Sec. 7, Rule 71] why he should not be punished for
Offender may also be contempt.
ordered to make b. In all other cases, charges for indirect
complete restitution to contempt shall be commenced by a
If the contempt the party injured by such verified petition with supporting
consists in the violation of the property particulars and certified true copies of
violation of a involved or such amount documents or papers involved therein, and
upon full compliance with the requirements
writ of as may be alleged and
for filing initiatory pleadings for civil actions
injunction, proved [Sec. 7, Rule 71]
in the court concerned.
TRO, or status
• If the contempt charges arose out of or
quo order If there is nothing more to are related to a principal action pending
return, offender is in the court, the petition for contempt
personally liable for the shall allege that fact but said petition
restitution of the money shall be docketed, heard and

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U.P. LAW BOC CIVIL PROCEDURE
decided separately, unless the court
in its discretion orders the
consolidation of the contempt charge
and the principal action for joint hearing
and decision.
[Sec. 4, Rule 70]
Where to file charge
a. Where the charge for indirect contempt has
been committed against a RTC or a court
of equivalent or higher rank, or against an
officer appointed by it, the charge may be
filed with such court.
b. Where such contempt has been committed
against a lower court, the charge may be
filed with the RTC of the place in which the
lower court is sitting; but the proceedings
may also be instituted in such lower court
subject to appeal to the RTC of such place
in the same manner as provided in Sec. 2,
Rule 71.
[Sec. 5, Rule 71]
f. Acts Deemed Punishable as
Indirect Contempt
a. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions
b. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a court,
including the act of a person who, after
being dispossessed or ejected from any
real property by the judgment or process of
any court of competent jurisdiction, enters
or attempts or induces another to enter into
or upon such real property, for the purpose
of executing acts of ownership or
possession, or in any manner disturbs the
possession given to the person adjudged
to be entitled thereto
c. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt under
Sec. 1, Rule 71
d. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice
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REMEDIAL LAW
e. Assuming to be an attorney or an officer of
a court, and acting as such without
authority;
f. Failure to obey a subpoena duly served
g. The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him
[Sec. 3, Rule 71]
Other examples
a. Submission, of a false certification of non-
forum shopping or non-compliance with
any of the undertakings [Sec. 5, Rule 7]
b. Upon a judgment obligor’s failure to pay
any such installment when due without
good excuse, if the court orders him to pay
the judgment in fixed monthly installments
[Sec. 40, Rule 39]
g. When Imprisonment Shall Be
Imposed
a. When the contempt consists in the refusal
or omission to do an act which is yet in the
power of the respondent to perform, he
may be imprisoned by order of the court
concerned until he performs it. [Sec. 8,
Rule 71]
b. When the respondent “carried the keys to
his prison in his own pocket.” [Galvez v.
Republic Surety & Insurance Co., Inc.,
G.R. No. L-12581 (1959)]
Only the judge who ordered the confinement of
the person for contempt of court can issue the
Order of Release. [Inoturan v. Limsiaco, Jr.,
AM No. MTJ-01-1362 (2005)]
Sec. 8, Rule 71 does not apply to tenants who
refused or failed to pay their rentals to the
special administratrix of the property. The non-
payment of rentals, which is a civil debt, is
covered by the constitutional guarantee
against imprisonment. [1 Regalado 920, 2010
Ed.]
U.P. LAW BOC CIVIL PROCEDURE
h. Contempt Against Quasi-
judicial Bodies
Applicability of the rules
Unless otherwise provided by law, this Rule
shall apply to contempt committed against
persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall
have suppletory effect to such rules as they
may have adopted pursuant to authority
granted to them by law to punish for contempt.
[Sec. 12, Rule 71].
It is not within the jurisdiction and
competence of quasi-judicial bodies to
decide indirect contempt cases. (e.g.
DARAB has no power to decide the contempt
charge filed before it) [Land Bank v. Listana,
G.R. No. 152611 (2003)]
Acts or violations against quasi-judicial bodies
punishable as contempt: Where a person,
without lawful excuse, fails to appear, make
oath, give testimony or produce documents
when required to do so by the official or body
exercising such powers. Other acts or
violations cannot be punished as contempt
unless specifically defined in the governing law
as contempt of court or if it authorizes the
quasi-judicial body to punish for contempt, and
providing the corresponding penalty. [1
Regalado 921-922, 2010 Ed., citing People v.
Mendoza, G.R. No. L-5059-60 (1953), see
Sec. 13, Chapter 3, Book VII, Admin Code]
Note: Parts VI-VIII of the 2020 Bar Syllabus
are discussed under Special Procedure,
Criminal Procedure, and Evidence.
Page 230 of 525
REMEDIAL LAW
I. REVISED RULES ON
SUMMARY PROCEDURE
1. CASES COVERED BY THE
RULE
[The 1991 Revised Rule on Summary
Procedure]
Rule shall govern the summary procedure in
the MTC, MTC in Cities, MCTC in the following
cases falling within their jurisdiction:
Civil cases
1. Cases of forcible entry and unlawful
detainer
a. Irrespective of the amount of damages
or unpaid rentals sought to be
recovered
b. Where attorney’s fees are awarded, it
shall not exceed P20,000
2. All other civil cases where total amount of
plaintiff’s claim does not exceed PHP
100,000 or PHP 200,000 in Metropolitan
Manila, exclusive of interest and costs
• EXCEPT: probate proceedings
[Sec. 1, as amended by A.M. 02-11-09-SC]
Criminal cases
1. Traffic laws, rules, and regulations
violations
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
a. Irrespective of other imposable
penalties, accessory or otherwise, or of
civil liability arising therefrom
b. In offenses involving damage to
property through criminal negligence,
this rule shall govern where imposable
fine does not exceed P10,000.
[Sec. 1]
Where rule shall not apply
1. To a civil case where plaintiff’s cause of
action is pleaded in the same complaint
U.P. LAW BOC CIVIL PROCEDURE
with another cause of action subject to
ordinary procedure.
2. To a criminal case where offense charged
is necessarily related to another criminal
case subject to ordinary procedure.
[Sec. 1]
Determination of applicability
Upon filing, the court shall issue an order
declaring whether or not the case shall be
governed by this rule.
Note: A patently erroneous determination is a
ground for disciplinary action. [Sec. 2]
2. EFFECT OF FAILURE TO
ANSWER
Answer
The defendant shall file his answer within 10
days from service of summons.
1. Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for lack of jurisdiction over the
subject matter.
2. Cross-claims and compulsory
counterclaims not asserted in the answer
shall be considered barred.
3. The answer to counterclaims or cross-
claims shall be filed and served within 10
days from service of the answer in which
they are pleaded.
[Sec. 5]
Effect of failure to answer
Should the defendant fail to answer the
complaint within the period above provided, the
court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint
and limited to what is prayed for therein.
Note: The court may in its discretion reduce the
amount of damages and attorney's fees
claimed for being excessive or otherwise
unconscionable. [Sec. 6]
This is without prejudice to the applicability of
now-Sec. 3(c), Rule 9 of ROC, if there are two
or more defendants. [Sec. 6]
Page 231 of 525
REMEDIAL LAW
3. PRELIMINARY CONFERENCE
AND APPEARANCES OF
PARTIES
Action of the court after filing of the
complaint
a. Outright dismissal
• After the court determines that the case
falls under summary procedure, it may,
from an examination of the allegations
therein and such evidence as may be
attached thereto, dismiss the case
outright on any of the grounds apparent
therefrom for the dismissal of a civil
action.
b. Issue summons
• If no ground for dismissal is found the
court shall issue summons which shall
state that the summary procedure
under this Rule shall apply.
[Sec. 4]
Preliminary conference
1. Held not later than 30 days after the last
answer is filed,
2. The rules on pre-trial in ordinary cases
shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
3. The failure of the plaintiff to appear in the
preliminary conference shall be a cause for
the dismissal of his complaint.
4. The defendant who appears in the
absence of the plaintiff shall be entitled to
judgment on his counterclaim in
accordance with Sec. 6
5. All cross-claims shall be dismissed.
6. If a sole defendant shall fail to appear,
the plaintiff shall be entitled to judgment in
accordance with Sec. 6. This Rule shall not
apply where one of two or more defendants
sued under a common cause of action who
had pleaded a common defense shall
appear at the preliminary conference.
[Sec. 7]
Record of preliminary conference
The court shall issue an order stating the
matters taken up in the preliminary conference,
U.P. LAW BOC CIVIL PROCEDURE
within 5 days after the termination of the
preliminary conference. [Sec. 8]
Submission of affidavits and position
papers
Within 10 days from the receipt of the
record of preliminary conference, the parties
shall submit:
1. Affidavits of their witnesses,
2. Other evidence on the factual issues
defined in the order, and
3. Their position papers setting forth the law
and the facts relied upon by them. [Sec. 9]
Affidavits
The affidavits shall state only facts of direct
and personal knowledge of the affiants which
are admissible in evidence, if not, such affidavit
or portion thereof shall be expunged from the
record.
Note: Violation of this rule may subject the
party or counsel who submitted the defective
affidavit is subject to disciplinary action. [Sec.
20]
4. PROHIBITED PLEADINGS
AND MOTIONS
Pleadings
The only pleadings allowed to be filed are:
1. Complaint
2. Compulsory counterclaim, pleaded in the
answer
3. Cross-claim, pleaded in the answer
4. Answer to these pleadings
Note: All pleadings shall be verified.
[Sec. 3]
Prohibited pleadings, motions, petitions
1. Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the
subject matter, or failure to comply with
referral to Lupon for conciliation when
required
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration
of a judgment, or for opening of trial
4. Petition for relief from judgment
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REMEDIAL LAW
5. Motion for extension of time to file
pleadings, affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints
12. Interventions
[Sec. 19]
5. APPEAL
Rendition of judgment
Within 30 days after receipt of the last affidavits
and position papers, or the expiration of the
period for filing the same, the court shall render
judgment. [Sec. 30]
Clarificatory procedure
Should the court find it necessary to clarify
certain material facts, it may within the same 30
days to render judgment, issue an order:
a. Specifying the matters to be clarified,
b. Requiring the parties to submit affidavits or
other evidence on the matters within 10
days from receipt of the order
In such case, judgment shall be rendered
within 15 days after the receipt of the last
clarificatory affidavits, or the expiration of the
period for filing the same.
In a civil case governed by the Rules on
Summary Procedure, no hearing is
conducted. Instead, the parties are required
to submit their respective position papers.
[Five Star Marketing Corporation v. Booc, G.R.
143331 (2007)]
Appeals
1. The judgment or final order of the MTC
shall be appealable to the appropriate
RTC.
2. The decision of the RTC in civil cases
governed by the Rule on Summary
Procedure shall be immediately executory
without prejudice to further appeal.
[Sec. 21].
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Amended Rules. However, it is an allowable

Note: When the case is already in the Regional
Trial Court, the Rule on Summary Procedure
no longer applies. It applies only in cases filed
before the MTCs. [Jakihaca v. Aquino, G.R.
No. 83982 (1990)]
affirmative defense that must be alleged in the
answer or else it will be deemed waived.
Hence, the court may not dismiss a case motu
proprio for failing to comply with the
requirement of a barangay conciliation.

J. KATARUNGANG 1. Cases Covered

PAMBARANGAY The Lupon of each barangay shall have the
authority to bring together the parties actually
[Revised Katarungang Pambarangay Law, residing in the same city or municipality for
Secs. 399-422, R.A. 7160] amicable settlement of all disputes. [Sec. 408,
LGC)
The primordial aim of the Katarungang
Pambarangay Law is to reduce the number of 2. Subject Matter For Amicable
court litigations and prevent deterioration of the
quality of justice which has been brought about Settlement
by the indiscriminate filing of cases in the
courts. [Zamora vs Heirs of Izquierdo, G.R. No. All disputes are subject to Barangay
146195 (2004)] conciliation pursuant to the Revised
Katarungang Pambarangay Law and prior
Nature of proceedings recourse thereto is a pre-condition before filing
The proceedings before the Lupong a complaint in court or any government offices.
Tagamayapa or the Pangkat ng [Administrative Circular 14-93]
Tagapagkasundo of the barangay are not
judicial proceedings. They do not have 3. Venue
adjudicatory powers. They resolve disputes or
attempt to do so through amicable settlement, Rules on venue
conciliation, and arbitration. [1 Riano 659, 2016 Dispute Venue
Edition]
Disputes between
Shall be brought
Importance persons actually
before the lupon of
Where the case is covered by the Katarungang residing in the same
said barangay
Pambarangay Law, the compulsory process of barangay
arbitration is required and is a precondition to Shall be brought in
the filing of the complaint in the court. the barangay where
Disputes involving
The complaint should be dismissed where the the respondent or
actual residents of
complaint: any of the
a. Did not state that it is one of the excepted different barangays
respondents actually
cases, within the same city
resides, at the
b. Did not allege prior availment of the or municipality
election of the
conciliation process, or
complainant
c. Did not have a certification that no
Shall be brought in
conciliation or settlement had been
reached by the parties. [Agbayani v. CA, Disputes involving the barangay where
G.R. No. 183623 (2012)] real property or any the real property or
interest therein the larger portion
Note: Failure to comply with a condition thereof is situated.
precedent is no longer a ground for an
allowable motion to dismiss under the

Page 233 of 525

U.P. LAW BOC CIVIL PROCEDURE
Disputes arising
from the workplace
where the Shall be brought in
contending parties the barangay where
are employed or at such workplace or
the institution where institution is located.
such parties are
enrolled for study
[Sec. 409, LGC]
Objections
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay. Otherwise, the same shall be
deemed waived. [Sec. 409, LGC]
4. When Parties May Directly Go
To Court
Barangay conciliation is not necessary before
filing a complaint:
1. Where one party is the government, or any
subdivision or instrumentality thereof;
2. Where one party is a public officer or
employee and the dispute relates to the
performance of his official functions;
3. Where the dispute involves real properties
located in different cities and
municipalities;
- unless the parties thereto agree to
submit their differences to amicable
settlement by an appropriate Lupon
4. Any complaint by or against corporations,
partnerships, or juridical entities;
5. Disputes involving parties who actually
reside in barangays of different cities or
municipalities;
- Except where such barangay units
adjoin each other and the parties agree
to submit to amicable settlement by an
appropriate Lupon
6. Offenses for which the law prescribes a
maximum penalty of imprisonment
exceeding 1 year or a fine of over P5,000;
7. Offenses where there is no private
offended party;
8. Disputes where urgent legal action is
necessary to prevent injustice from being
Page 234 of 525
REMEDIAL LAW
committed or further continued, specifically
the following:
a. Criminal cases where the accused is
under police custody or detention
b. Petition for habeas corpus
c. Actions coupled with provisional
remedies
d. Actions which may be barred by the
statute of limitations
9. Any class of disputes which the President
may determine in the interest of justice or
upon the recommendation of the Secretary
of Justice;
10. Where the dispute arises from the
Comprehensive Agrarian Reform Law;
11. Labor disputes or controversies arising
from employer-employee relations;
12. Actions to annul judgment upon a
compromise which may be filed directly in
the court.
[Administrative Circular 14-93]
5. Execution
Form of settlement
All amicable settlements shall:
a. Be in writing,
b. In a language or dialect known to the
parties,
c. Signed by the parties,
d. Attested to by the lupon chairman or the
pangkat chairman
[Sec. 411, LGC]
Effect of settlement
The amicable settlement and arbitration award
shall have the effect of a final judgment of a
court upon the expiration of 10 days from
the date thereof, unless repudiation has been
made or a petition to nullify the award has been
filed before the proper court. [Sec. 416, LGC]
Execution
Within 6 months from the date of the settlement
- execution by the lupon.
After the lapse of 6 months - execution by
action in the appropriate city or municipal court.
U.P. LAW BOC CIVIL PROCEDURE
6. Repudiation
Repudiation of the settlement
Any party to the dispute may within 10 days
from the date of the settlement, repudiate the
same by:
a. Filing with the lupon chairman a
statement of repudiation,
b. Sworn before him, and
c. Claiming that his consent was vitiated
by fraud, violence, or intimidation.
Note: Such repudiation shall be a sufficient
basis for the issuance of the certification for
filing a complaint. [Sec. 418, LGC]
Effect of failure to repudiate
Failure to repudiate within the 10-day period
shall be deemed a waiver of the right to
challenge the settlement on the grounds of
vitiated consent by fraud, violence, or
intimidation. [Sec. 14, Rule VI, Katarungang
Pambarangay Rules]
Upon expiration of the 10-day period, the
settlement attains the status of finality and it
becomes the ministerial duty of the court to
implement and enforce it. [Quiros vs Arjona,
G.R. No. 158901 (2004)]
K. RULES OF PROCEDURE
FOR SMALL CLAIMS CASES
[AM No. 08-8-7-SC, effective February 2016]
Purpose
The purpose of the small claims process is to
provide an inexpensive and expeditious means
to settle disputes over small amounts. [1 Riano
646, 2016 Edition]
Parties are encouraged to file small claims
court actions to resolve their minor disputes
as opposed to resorting to self-help or forcible
means to seek their remedy. [Explanatory note
to A.M. 08-8-7-SC]
Note: The rules of civil procedure shall apply
suppletorily. [Sec. 27] The rules on
mediation/JDR shall not apply inasmuch as the
Page 235 of 525
REMEDIAL LAW
parties may enter into compromise at any
stage of the proceedings. [Sec. 28]
1. Scope And Applicability Of
The Rule
Scope
This rule shall govern the procedure in actions
for payment of money where the value of the
claim does not exceed PHP 400,000 in cases
filed before the MeTC, and P300,000 in cases
filed before the MCTC, MTCS, and MTCC,
exclusive of interest and costs. [SC Resolution,
February 26, 2019]
Note: The Plaintiff may join one or more
separate small claims against a defendant
provided that the amount still falls within the
jurisdictional amount of the rules. [Sec. 8]
Applicability
This Rule is applicable in all actions which are
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment
or reimbursement of sum of money
a. For money owed under any of the
following:
i. Contract of Lease
ii. Contract of Loan
iii. Contract of Services
iv. Contract of Sale;
v. Contract of Mortgage
b. For liquidated damages arising from
contracts
c. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule
pursuant to Sec. 417, LGC.
[Sec. 5]
Counterclaims within the Coverage of Small
Claims
Compulsory
The defendant shall file a counterclaim in his
Response if he possesses a claim against the
plaintiff that:
1. Is within the coverage of this Rule,
exclusive of interest and costs;
U.P. LAW BOC CIVIL PROCEDURE
2. Arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim;
3. Does not require for its adjudication the
joinder of third parties; and
4. Is not the subject of another pending
action,
Note: Failure to do so will bar the defendant
from suing on the counterclaim. [Sec. 15]
Permissive
The defendant may also elect to file a
counterclaim if:
a. It is a claim that does not arise from the
same transaction or occurrence,
b. The amount and nature is within the
coverage of the Rule, and
c. The prescribed docket fees and other legal
fees are paid.
[Sec. 15]
2. Commencement Of Small
Claims Action; Response
How commenced
By filing with the court an accomplished and
verified STATEMENT OF CLAIM in duplicate.
[Sec. 6]
- Stating if he/she/it is engaged in the
business of lending, banking and similar
activities, and the number of small claims
cases filed within the calendar year
regardless of judicial station. [Sec. 6]
Note: Misrepresentation as to not being
engaged in such business shall cause the
statement of claim to be dismissed with
prejudice and for the plaintiff to be meted the
appropriate sanctions such as direct contempt.
[Sec. 11]
Attachments to the Statement of Claim
1. Certification of Non-forum Shopping,
Splitting a Single Cause of Action, and
Multiplicity of Suits,
2. Two (2) duly certified photocopies of the
actionable document/s subject of the claim,
and
3. Affidavits of witnesses and other evidence
to support the claim
Page 236 of 525
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Note: No evidence shall be allowed during the
hearing which was not attached to or submitted
together with the Claim unless good cause is
shown for admission of additional evidence.
[Sec. 6]
Affidavits
The affidavits submitted shall state only:
a. Facts of direct personal knowledge of the
affiants, and
b. Based on authentic records which are
admissible in evidence.
Effect of violation:
a. The party and counsel who submitted such
shall be subject to disciplinary action.
b. The inadmissible affidavit or portion of
which shall be expunged from the record.
Note: Non-submission of affidavits shall cause
the immediate dismissal of the claim or
counterclaim. [Sec. 9]
Venue
General Rule: The regular rules on venue
apply
Exception: Plaintiffs engaged in the business
of lending, banking, and similar activities who
have a branch within the municipality/city
where the defendant resides must file in such
municipality/city. [Sec. 7]
Payment of filing fees
The plaintiff shall pay the docket and other
legal fees prescribed under Rule 141, unless
allowed to litigate as an indigent
Note: Exemption from the payment of filing
fees shall be granted only by the SC.
If more than 5 small claims are filed by one
party within the calendar year, regardless of
the judicial station, an additional filing fee of
PHP 500 shall be paid for every claim filed after
the 5th claim, and an additional 100.00 or a
total of 600.00 for every claim filed after the
tenth 10th claim, and another 100.00 or a total
of 700 for every claim filed after the 15th claim,
progressively and cumulatively.
If the plaintiff is engaged in the business of
banking, lending and similar activities, the
U.P. LAW BOC CIVIL PROCEDURE
amount of filing and other legal fees shall be
the same as those applicable to cases filed
under the regular rules.
A claim filed with a motion to sue as
indigent shall be referred to the Executive
Judge for immediate action in case of multi-
sala courts.
1. If the motion is granted by the Executive
Judge, the case shall be raffled off or
assigned to the court designated to hear
small claims cases.
2. If the motion is denied, the plaintiff shall
be given 5 days within which to pay the
docket fees, otherwise, the case shall be
dismissed without prejudice.
Note: In no case shall a party, even if declared
an indigent, be exempt from the payment of the
P1,000.00 fee for service of summons and
processes. [Sec. 10]
Court action on statement of claim
If no ground for dismissal is found, the court
shall:
a. Issue summons directing the defendant to
submit a verified response.
- Accompanied by a copy of the statement
of claims, documents submitted by
plaintiff, and a blank response form.
b. Issue a notice of hearing to both parties.
- Containing the date of hearing, and the
express prohibition against filing of a
motion to dismiss.
- Note: No unjustified postponement shall
be allowed.
[Sec. 12]
Summons
If it is returned without being served, the court
shall order the plaintiff to cause service of
summons and to inform the court if service was
made within 30 days. Otherwise, the statement
of claims shall be dismissed without prejudice
as to those not served. [Sec. 12]
Response
The defendant shall file with the court and
serve on the plaintiff a duly accomplished and
verified Response within a non - extendible
period of 10 days from receipt of summons.
[Sec. 13]
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Attachments to response
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
Note: No evidence shall be allowed during
hearing which was not attached or submitted
together with the Response, unless good
cause is shown for the admission of additional
evidence. [Sec. 13]
Effect of failure to file response
a. If the defendant also fails to appear on the
date set for hearing – the court by itself
shall render judgment as may be warranted
by the facts alleged in the Statement of
claim.
b. If the defendant appears on the date set
for hearing – the court shall ascertain what
defense he/she/it has to offer which shall
constitute his/her/its Response, and
proceed to hear or adjudicate the case on
the same day as if a Response has been
filed. [Sec. 14]
Dismissal
When the case falls under the rules
1. From the examination of the Statement of
Claims and the evidence attached, the
court may dismiss the case outright on any
of the grounds for the dismissal of the case
and state if such dismissal is with or without
prejudice.
2. If, during the hearing, the court is able to
determine that there exists a ground for
dismissal, the court may dismiss the case
even if the ground is not pleaded in the
Response.
Note: If a case is filed under the regular or
summary procedure, but actually falls under
this Rule, the case shall be referred to the
Executive Judge for appropriate assignment.
[Sec. 11]
When the case does not fall under the rules
If the case falls under summary or regular
procedure, the case shall not be dismissed.
Instead, the case shall be:
1. Re-docketed under the appropriate
procedure, and
2. Returned to the court where it was
assigned, subject to payment of any
U.P. LAW BOC CIVIL PROCEDURE
deficiency in the applicable regular rate of
filing fees.
[Sec. 11]
3. Prohibited Pleadings And
Motions
The following pleadings, motions, or petitions
shall not be allowed in small claims cases:
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply and Rejoinder;
11. Third-party complaints; and
12. Interventions
[Sec. 16]
4. Appearances
General Rule: The parties shall personally
appear on the designated date of hearing.
[Sec. 18]
Exceptions:
a. Appearance through a representative must
be for a valid cause. [Sec. 18]
b. If the court determines that a party cannot
properly present his/her claim or defense
and needs assistance, the court may allow
another individual who is not an attorney to
assist the party upon his consent. [Sec. 19]
Representative
a. Must not be a lawyer,
Note: Juridical entities shall not be
represented by a lawyer in any capacity.
b. Must be related to or next-of-kin of the
individual-party, and
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c. Authorized under a Special Power of
Attorney
- to enter into an amicable settlement of the
dispute and to enter into stipulations or
admissions of facts and of documentary
exhibits.
[Sec. 18]
Note: An attorney may only appear in a small
claims case when the attorney himself is the
plaintiff/defendant. [Sec. 19]
Failure to appear
1. If plaintiff fails to appear – it shall be a
cause for dismissal without prejudice. The
defendant present shall be entitled to
judgment on permissive counterclaim.
2. If defendant fails to appear – same effect
as failure to file Response.
3. If both plaintiff and defendant fail to appear
– dismissal with prejudice of both the
Statement of Claim and the Counterclaim.
[Sec. 20]
5. Hearing; Duty Of The Judge
When conducted
The hearing shall be set not more than 30 days
from the filing of the statement of claims. [Sec.
12]
Postponement of hearing
A request for postponement of hearing may be
granted only upon proof of the physical inability
of the party.
Note: A party may only avail of 1 postponement
[Sec. 21]
Duty of the court
At the beginning of the court session, the
judge shall read aloud a short statement
explaining the nature, purpose and the rule of
procedure of small claims cases. [Sec. 22]
Hearing
1. At the hearing, the judge shall first exert
efforts to bring the parties to an amicable
settlement of their dispute.
2. If the attempt at an amicable settlement
fails, the hearing shall so proceed in an
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

informal and expeditious manner and shall

be terminated within the same day. [Sec. L. RULES OF PROCEDURE
23] FOR ENVIRONMENTAL CASES
[A.M. No. 09-6-8-SC]
Any settlement or resolution of the dispute shall
be:
1. Reduced into writing; 1. Scope And Applicability Of
2. Signed by the parties; and, The Rule
3. Submitted to the court for approval
[Sec. 23] These Rules shall govern the procedure in
1. Civil,
6. FINALITY OF JUDGMENT 2. Criminal and
3. Special civil actions
Decision
1. After the hearing, the court shall render its Before
decision within 24 hours from 1. Regional Trial Courts,
termination of the hearing, based on the 2. Metropolitan Trial Courts
facts established by the evidence. 3. Municipal Trial Courts in Cities
2. The decision shall immediately be 4. Municipal Trial Courts and
entered by the Clerk of Court in the court 5. Municipal Circuit Trial Courts
docket for civil cases and a copy thereof
forthwith served on the parties. Involving enforcement or violations of
3. The decision shall be final, executory, environmental and other related laws, rules
and unappealable and regulations.
[Sec. 24]
2. Civil Procedure
Execution
Execution shall issue upon motion of the Who May File
winning party. Any real party in interest, including the
government and juridical entities authorized by
Considering that small claims cases are law, may file a civil action involving the
exclusively within the jurisdiction of the MTC, enforcement or violation of any environmental
Municipal Trial Courts in Cities, Municipal Trial law. [Sec. 4, Rule 2]
Courts, and Municipal Circuit Trial Courts,
certiorari petitions assailing its dispositions Form
should be filed before their corresponding The verified complaint shall contain:
Regional Trial Courts. [A.L. Ang Network v. a. The names of the parties,
Mondejar, G.R. No. 200804 (2014)] b. Their addresses,
c. The cause of action,
d. The reliefs prayed for,
e. Shall state that it is an environmental case
and the law involved, and
f. Include a certification against forum
shopping

Note: If the complaint is not an environmental

complaint, the judge shall refer it to the
executive judge for re-raffle. [Sec. 3, Rule 2]

Page 239 of 525

U.P. LAW BOC CIVIL PROCEDURE
The plaintiff shall attach all the evidence
proving or supporting the cause of action
consisting of affidavits of witnesses,
documentary evidence, and if possible, object
evidence.
- The affidavits shall be in question and
answer form and shall comply with the
rules of admissibility of evidence. [Sec. 3,
Rule 2]
Service of the complaint on the government
Upon filing of the complaint, the plaintiff is
required to furnish the government or the
appropriate agency, although not a party, a
copy of the complaint.
Note: Proof of service shall be attached to the
complaint. [Sec. 6, Rule 2]
Citizen Suit
1. Any Filipino citizen in representation of
others, including minors or generations
yet unborn, may file an action to enforce
rights or obligations under environmental
laws.
2. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a
brief description of the cause of action and
the reliefs prayed for, requiring all
interested parties to manifest their interest
to intervene in the case within 15 days from
notice thereof.
3. The plaintiff may publish the order once in
a newspaper of a general circulation in the
Philippines or furnish all affected
barangays copies of said order.
Note: Citizen suits filed under R.A. 8749 (Clean
Air Act) and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their
respective provisions.
[Sec. 5, Rule 2]
Declaration of Default Motu Proprio
Should the defendant fail to answer the
complaint within the period provided, the court
shall declare defendant in default and upon
motion of the plaintiff, shall receive evidence ex
parte and render judgment based thereon and
the reliefs prayed for [Sec. 15, Rule 2]
Page 240 of 525
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Procedure
Filing of verified Complaint accompanied by
1. affidavits of witnesses, documentary
evidence, and if possible, object
evidence, and
2. certification against forum shopping
[Sec. 3, Rule 2]
↓
Referral/Assignment by raffle to branch of
court
↓
Issuance of Temporary Environmental
Protection Order (TEPO), when proper,
effective for 72 hours from receipt and,
during the same period, conduct of a
summary hearing for the extension of the
effectivity of the TEPO [Sec. 8, Rule 2]
↓
Service of Summons [Sec. 13, Rule 2]
↓
Filing of verified Answer within 15 days from
receipt of summons [Sec. 14, Rule 2]
↓
Issuance of Notice of Pre-trial within 2 days
from filing of Answer [Sec. 1, Rule 3]
↓
Submission of Pre-Trial Briefs 3 days before
pre-trial [Sec. 2, Rule 3]
↓
Referral to Mediation, Mediation and
Mediation Report [Sec. 3, Rule 3]
↓
Preliminary Conference [Sec. 4, Rule 3]
↓
Pre-trial Conference/s [Sec. 5, Rule 3]
↓
Pre-trial Order [Sec. 9, Rule 3]
↓
Continuous Trial [Sec. 1, Rule 4]
↓
Judgment and Execution [Rule 5]
Period to Try and Decide
1. The court shall have a period of 1 year from
the filing of the complaint to try and decide
the case.
2. Before the expiration of the 1-year period,
the court may petition the SC for the
extension of the period for justifiable cause.
U.P. LAW BOC CIVIL PROCEDURE
3. The court shall prioritize the adjudication of
environmental cases.
[Sec. 5, Rule 4]
a. Prohibition Against Temporary
Restraining Order and
Preliminary Injunction
Rules
Except the SC, no court can issue a TRO or
writ of preliminary injunction against lawful
actions of government agencies that enforce
environmental laws or prevent violations
thereof. [Sec. 10, Rule 2]
Report on TEPO, EPO, TRO, or preliminary
injunction
The judge shall report any action taken on a
TEPO, EPO, TRO, or preliminary injunction,
including its modification and dissolution, to the
SC through the OCA within 10 days from the
day the action is taken. [Sec. 11, Rule 2]
b. Pre-trial Conference; Consent
Decree
Pre-trial conference
1. The judge shall put the parties and their
counsels under oath, and they shall
remain under oath in all pre-trial
conferences.
2. The judge shall exert best efforts to
persuade the parties to arrive at a
settlement of the dispute.
- The judge may issue a consent decree
approving the agreement between the
parties in accordance with law, morals,
public order and public policy to protect
the right of the people to a balanced and
healthful ecology
Note: Evidence not presented during the pre-
trial, except newly-discovered evidence, shall
be deemed waived.
[Sec. 5, Rule 3]
Consent decree - A judicially-approved
settlement between concerned parties based
on public interest and public policy to protect
and preserve the environment. [Sec. 4(b), Rule
1]
Page 241 of 525
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c. Prohibited Pleadings and
Motions
The following pleadings or motions shall not
be allowed:
1. Motion to dismiss the complaint;
2. Motion for a bill of particulars;
3. Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed 15 days;
4. Motion to declare the defendant in default;
5. Reply and rejoinder; and
6. Third party complaint [Sec. 2, Rule 2]
d. Temporary Environmental
Protection Order
Ground for Issuance
If it appears from the verified complaint with a
prayer for the issuance of an EPO that
a. The matter is of extreme urgency and
b. The applicant will suffer grave injustice and
irreparable injury. [Sec. 8, Rule 2]
Note: The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO.
[Sec. 8, Rule 2]
Period of Effectivity
72 hours from date of the receipt of the TEPO
by the party or person enjoined. [Sec. 8, Rule
2]
Duty of Court
1. Within the 72-hour period, the court shall
conduct a summary hearing to determine
whether the TEPO may be extended until
the determination of the case. [Sec. 8, Rule
2]
2. The court where the case is assigned, shall
periodically monitor the existence of acts
that are the subject matter of the TEPO
even if issued by the executive judge, and
may lift the same at any time as
circumstances may warrant [Sec. 8, Rule
2]
Ground to dissolve TEPO
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
U.P. LAW BOC CIVIL PROCEDURE
cause irreparable damage to the party or
person enjoined while the applicant may be
fully compensated for such damages as he
may suffer and subject to the posting of a
sufficient bond by the party or person enjoined.
Note: The grounds for a motion to dissolve a
TEPO shall be supported by affidavits of the
party or the person enjoined which the
applicant may oppose, also by affidavits. [Sec.
9, Rule 2]
e. Judgment and Execution;
Reliefs in a Citizen’s Suit
Judgment not stayed by appeal
Any judgment directing the performance of acts
for the protection, preservation or rehabilitation
of the environment shall be executory
pending appeal unless restrained by the
appellate court. [Sec. 2, Rule 5]
Reliefs in a citizen suit
a. If warranted, the court may grant to the
plaintiff proper reliefs which shall include—
1. The protection, preservation or
rehabilitation of the environment and
2. The payment of attorney’s fees, costs
of suit, and other litigation expenses.
b. The court may also require the violator
1. To submit a program of rehabilitation or
restoration of the environment, the
costs of which shall be borne by the
violator or
2. To contribute to a special trust fund for
that purpose subject to the control of
the court.
[Sec. 1, Rule 5]
No damages can be awarded in a citizen
suit
This measure is in line with the policy that a
citizen suit is filed in the public interest, and in
effect, it is the environment which is vindicated
in the action. The only recourse of a party or
person who wishes to recover damages for
injury suffered is to file a separate action under
Sec. 4, Rule 2. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]
Page 242 of 525
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f. Permanent Environmental
Protection Order; Writ of
Continuing Mandamus
Court action
In the judgment, the court may—
a. Convert the TEPO to a permanent EPO, or
b. Issue a writ of continuing mandamus
directing the performance of acts which
shall be effective until the judgment is fully
satisfied.
[Sec. 3, Rule 5]
Definition
Environmental protection order - An 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. [Sec. 3(d), Rule 1]
Writ of continuing mandamus - 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. 3(c), Rule 1]
Execution
The court may, by itself or through the
appropriate government agency:
a. Monitor the execution of the judgment, and
b. Require the party concerned to submit
written reports on a quarterly basis or
sooner as may be necessary.
- The reports shall detail the progress of
the execution and satisfaction of the
judgment.
- The other party may, at its option, submit
its comments or observations on the
execution of the judgment. [Sec. 3, Rule
5]
Return of writ of execution
The process of execution shall terminate upon
a sufficient showing that the decision or order
has been implemented to the satisfaction of the
court in accordance with Sec. 14, Rule 39 of
the ROC.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Sec. 2, Rule 6]
g. Strategic Lawsuit Against
Public Participation The court shall direct the plaintiff or adverse
party within 15 days from filing the comment or
lapse of period to:
Definition
a. File an opposition showing that the suit is
SLAPP refers to a legal action filed to harass,
not a SLAPP,
vex, exert undue pressure or stifle any legal
b. Attaching evidence in support thereof.
recourse that any person, institution or the
[Sec. 2, Rule 6]
government has taken or may take in the
enforcement of environmental laws, protection
The defense shall be set for hearing by the
of the environment or assertion of
court after issuance of an order to file an
environmental rights. [Sec. 1, Rule 6]
opposition within 15 days from filing of the
comment of lapse of the period. [Sec. 2, Rule
Applicability
6]
The SLAPP provisions apply not only to suits
- Hearing shall be summary in nature,
that have been filed in the form of a
- Parties must submit all available evidence
countersuit, but also to suits that are about
in support of their respective positions.
to be filed with the intention of discouraging
[Sec. 3, Rule 6]
the aggrieved person from bringing a valid
environmental complaint before the court.
Quantum of Evidence
[Annotation to the Rules of Procedure for
a. Party seeking the dismissal of the case
Environmental Cases, Supreme Court Sub-
must prove by substantial evidence that
Committee]
his acts for the enforcement of
environmental law is a legitimate action for
Illustrations:
the protection, preservation and
a. X files a complaint in an environmental
rehabilitation of the environment
case against A [violator of environmental
b. Party filing the action assailed as a
laws] and the A retaliates by filing a
SLAPP shall prove by preponderance of
complaint for damages against X;
evidence that the action is not a SLAPP
b. X is a witness in a pending environmental
and is a valid claim
case against A and A retaliates by filing a
[Sec. 3, Rule 6]
complaint for damages or libel against X; or
c. X is an environmental advocate who rallies
Resolution of the Defense of a SLAPP
for the protection of environmental rights
a. If action is dismissed, dismissal is with
and a complaint for damages is filed
prejudice
against him by A [Annotation to the Rules
b. If defense of SLAPP is rejected, action
of Procedure for Environmental Cases,
will proceed and evidence adduced during
Supreme Court Sub-Committee]
the summary hearing shall be treated as
evidence of the parties on the merits of the
SLAPP as a defense
case.
In a SLAPP filed against a person involved in
[Sec. 4, Rule 6]
the enforcement of environmental laws,
protection of environment, or assertion of
environmental rights, the defendant may:
a. File an answer interposing as a defense
that the case is a SLAPP and shall be
supported by documents, affidavits,
papers, and other evidence, and
b. By way of counterclaim, pray for damages,
attorney’s fees, and costs of suit.

Page 243 of 525

U.P. LAW BOC CIVIL PROCEDURE
3. Special Proceedings
a. Writ of Kalikasan
When available
It is a remedy available:
a. To a natural or juridical person, entity
authorized by law, people’s organization,
NGO, or any public interest group
accredited by or registered with any
government agency,
b. On behalf of persons whose constitutional
right to a balanced and healthful ecology is
violated or threatened with violation,
c. By an unlawful act or omission of a public
official or employee, or private individual or
entity,
d. Involving environmental damage to such
magnitude as to prejudice the life, health,
or property of inhabitants in two or more
cities or provinces. [Sec. 1, Rule 7]
Note: The filing of the petition shall not preclude
the filing or separate civil, criminal, or
administrative actions. [Sec. 17, Rule 7]
Where to file
The petition shall be filed with the SC or any of
the stations of the CA. [Sec. 3, Rule 7]
Form
The verified petition shall contain the
following:
a. The personal circumstances of the
petitioner;
b. The name and personal circumstances of
the respondent or if unknown/uncertain, an
assumed appellation of the respondent;
c. The environmental law, rule, or regulation
violated or threatened to be violated;
d. The act or omission complained of;
e. The environmental damage of such
magnitude as to prejudice the life, health,
or property of the inhabitants in 2 or more
cities or provinces;
f. All relevant and material evidence;
- Affidavits, documentary evidence,
scientific/expert studies, object
evidence
g. Certification of the petitioner under oath
that:
Page 244 of 525
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i. Petitioner has not commenced any
action or filed any claim involving the
same issues in any court, tribunal, or
quasi-judicial agency, and no such
action is pending;
ii. If there is an action pending, the
complete statement of its present
status;
iii. If the petitioner shall learn that there is a
pending action, he shall report such to
the court within 5 days.
h. Reliefs prayed for which may include a
TEPO.
[Sec. 2, Rule 7]
Exemption from docket fees
The petitioner shall be exempt from the
payment of docket fees. [Sec. 4, Rule 7]
Procedure
Filing of verified Petition with Certificate
Against Forum Shopping [Sec. 2, Rule 7]
↓
Issuance of Writ of Kalikasan within 3 days
from filing of petition [Sec. 5, Rule 7]
↓
Service of the Writ [Sec. 6, Rule 7]
↓
Filing of a verified Return within a non-
extendible period of 10 days after service of
the writ [Sec. 7, Rule 7]
↓
Hearing (court may call for preliminary
conference) [Sec. 11, Rule 7]
↓
Judgment [Sec. 15, Rule 7]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued within 3
days from the date of filing.
- The respondent shall be required to file a
verified return.
- The order shall include the issuance of a
cease and desist order and other
temporary reliefs effective until further
order. [Sec. 5, Rule 7]
U.P. LAW BOC CIVIL PROCEDURE
Judgment
Judgment shall be rendered granting or
denying the writ of kalikasan within 60 days
from the time the petition is submitted for
decision.
Reliefs that may be granted under the writ:
a. Directing the respondent to permanently
cease and desist from committing
acts/neglecting the performance of a duty
in violation of environmental laws resulting
in environmental destruction or damage;
b. Directing the respondent to protect,
preserve, rehabilitate, or restore the
environment;
c. Directing the respondent to monitor strict
compliance with the decisions and orders
of the court;
d. Directing the respondent to make periodic
reports on the execution of the final
judgment; and
e. Such other reliefs which relate to the right
of the people to a balance and healthful
ecology or to the protection, preservation,
rehabilitation, or restoration of the
environment.
Note: An award of damages to individual
petitioners is not allowed as a relief. [Sec. 15,
Rule 7]
Appeal
Any party may appeal to the SC under Rule 45
of the ROC within 15 days from notice of the
adverse judgment or denial of MR.
Note: The appeal may raise questions of fact.
[Sec. 16 Rule 7]
b. Prohibited Pleadings and
Motions
The following pleadings and motions are
prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default.
Page 245 of 525
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[Sec. 9, Rule 7]
c. Discovery Measures
A party may file a verified motion for the
following reliefs:
a. Ocular Inspection
b. Production or inspection of documents and
things
The motion must show that the order granting
either relief is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of
inhabitants in two or more cities or provinces.
[Sec. 12, Rule 7]
OCULAR INSPECTION
Purpose
To order any person in possession or control of
a designated land or other property to permit
entry for the purpose of inspecting or
photographing the property or any relevant
object or operation thereon. [Sec. 12, Rule 7]
Requirements
The motion must:
a. Show that an ocular inspection order is
necessary to establish the magnitude of
the violation/threat;
b. State in detail the place/places to be
inspected;
c. Be supported by affidavits of witnesses
who have personal knowledge of the
violation/threatened violation.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
inspection, and
b. The date, time, place, and manner of
making the inspection, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
U.P. LAW BOC CIVIL PROCEDURE
PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS
Purpose
To order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects
or tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
[Sec. 12, Rule 7]
Requirements
The motion must show that the production
order is necessary to establish the magnitude
of the violation or threat.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
production, and
b. The date, time, place, and manner of
making the inspection or production, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
d. Writ of Continuing Mandamus
Definition
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. 3(c), Rule 1]
When available
When any agency or instrumentality of the
government or officer:
a. Unlawfully neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust or station
in connection with the enforcement or
violation of an environmental law, rule or
regulation or a right therein; or
b. Unlawfully excludes another from the use
or enjoyment of such right; and
Page 246 of 525
REMEDIAL LAW
c. There is no other plain, speedy and
adequate remedy in the ordinary course of
law.
[Sec. 1, Rule 8]
Where to file
The petition shall be filed with the RTC
exercising jurisdiction over the territory where
the actionable neglect or omission occurred or
with the CA or SC. [Sec. 2, Rule 8]
Form
The person aggrieved may file a verified
petition:
a. Alleging the facts with certainty,
b. Attach supporting evidence,
c. Specifying that the petition concerns an
environmental law, rule, or regulation, and
d. Praying that judgment be rendered:
i. Commanding the respondent to do an
act or series of acts until the judgment
is fully satisfied, and
ii. To pay damages sustained by the
petitioner by reason of the malicious
neglect to perform the duties of the
respondent, under the law, rules, or
regulations.
e. Accompanied by a sworn certification of
non-forum shopping. [Sec. 1, Rule 8]
Procedure
File the verified petition [Sec. 1, Rule 8]
↓
Issuance of Writ of Continuing Mandamus
and Order to Comment [Sec. 4, Rule 8]
↓
Filing of Comment within 10 days after
receipt of Order [Sec. 4, Rule 8]
↓
Summary Hearing [Sec. 6, Rule 8]
↓
Judgment [Sec. 7, Rule 8]
↓
Return of the Writ [Sec. 8, Rule 8]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued and the
court shall require the respondent to comment.
[Sec. 4, Rule 8]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: The court may grant a TEPO for the right and in both
preservation of the rights of the parties pending instances, there is
proceedings. [Sec. 5, Rule 8] no other plain,
speedy and
Judgment adequate remedy in
If warranted, the court shall grant the privilege the ordinary course
of the writ of continuing mandamus: of law.
a. Requiring respondent to perform an act or [Sec. 1]
series of acts until the judgment is fully
satisfied, Who May File
b. Grant such other reliefs as may be a. Natural and
warranted resulting from the wrongful or juridical persons
illegal acts of the respondent, b. Entities
c. Require the respondent to submit periodic authorized by
reports detailing the progress and law
execution of judgment. c. POs, NGOs, Person personally
Note: The court may by itself or through the PIG, on behalf of aggrieved by the
commissioner or the appropriate government persons whose unlawful act or
agency, evaluate and monitor compliance. The right to a omission [Sec. 1]
petitioner may also submit its comments or balanced and
observations on the execution of judgment. healthful ecology
[Sec. 7, Rule 8] is violated or
threatened to be
Return of the writ violated [Sec. 1]
The periodic reports submitted shall be Respondent
contained in partial returns of the writ. May be public or
Upon final satisfaction of the judgment, a final Government or its
private individual or
return of the writ shall be made to the court officers [Sec. 1]
entity [Sec. 1]
by the respondent. [Sec. 8, Rule 8] Docket Fees
Exempted [Sec. 4] Exempted [Sec. 3]
Distinctions Between Writ of Kalikasan and Venue
Writ of Continuing Mandamus a. RTC exercising
Writ of Continuing territorial
Writ of Kalikasan
Mandamus jurisdiction,
[Rule 7] SC or CA [Sec. 2]
[Rule 8] b. CA,
Subject Matter c. SC
Available against an Directed against [Sec. 3]
unlawful [a] the unlawful Discovery Measures
act or omission of a neglect in the
Ocular Inspection
public official or performance of an
and Production or
employee, or private act specifically None
Inspection Order
individual or entity, enjoined by law in
[Sec. 12]
involving connection with the
Damages
environmental enforcement/
Not allowed [Sec. 17] Allowed [Sec. 1]
damage of such violation of an
magnitude as to environmental rule
prejudice the life, or 4. Criminal Procedure
health or property of [b] the unlawfully
inhabitants in two or exclusion of another Filing of the information
more cities or from the use or An information, charging a person with a
provinces [Sec. 1] enjoyment of such violation of an environmental law and

Page 247 of 525

U.P. LAW BOC CIVIL PROCEDURE
The plaintiff shall attach all the evidence
proving or supporting the cause of action
consisting of affidavits of witnesses,
documentary evidence, and if possible, object
evidence.
- The affidavits shall be in question and
answer form and shall comply with the
rules of admissibility of evidence. [Sec. 3,
Rule 2]
Service of the complaint on the government
Upon filing of the complaint, the plaintiff is
required to furnish the government or the
appropriate agency, although not a party, a
copy of the complaint.
Note: Proof of service shall be attached to the
complaint. [Sec. 6, Rule 2]
Citizen Suit
1. Any Filipino citizen in representation of
others, including minors or generations
yet unborn, may file an action to enforce
rights or obligations under environmental
laws.
2. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a
brief description of the cause of action and
the reliefs prayed for, requiring all
interested parties to manifest their interest
to intervene in the case within 15 days from
notice thereof.
3. The plaintiff may publish the order once in
a newspaper of a general circulation in the
Philippines or furnish all affected
barangays copies of said order.
Note: Citizen suits filed under R.A. 8749 (Clean
Air Act) and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their
respective provisions.
[Sec. 5, Rule 2]
Declaration of Default Motu Proprio
Should the defendant fail to answer the
complaint within the period provided, the court
shall declare defendant in default and upon
motion of the plaintiff, shall receive evidence ex
parte and render judgment based thereon and
the reliefs prayed for [Sec. 15, Rule 2]
Page 240 of 525
REMEDIAL LAW
Procedure
Filing of verified Complaint accompanied by
1. affidavits of witnesses, documentary
evidence, and if possible, object
evidence, and
2. certification against forum shopping
[Sec. 3, Rule 2]
↓
Referral/Assignment by raffle to branch of
court
↓
Issuance of Temporary Environmental
Protection Order (TEPO), when proper,
effective for 72 hours from receipt and,
during the same period, conduct of a
summary hearing for the extension of the
effectivity of the TEPO [Sec. 8, Rule 2]
↓
Service of Summons [Sec. 13, Rule 2]
↓
Filing of verified Answer within 15 days from
receipt of summons [Sec. 14, Rule 2]
↓
Issuance of Notice of Pre-trial within 2 days
from filing of Answer [Sec. 1, Rule 3]
↓
Submission of Pre-Trial Briefs 3 days before
pre-trial [Sec. 2, Rule 3]
↓
Referral to Mediation, Mediation and
Mediation Report [Sec. 3, Rule 3]
↓
Preliminary Conference [Sec. 4, Rule 3]
↓
Pre-trial Conference/s [Sec. 5, Rule 3]
↓
Pre-trial Order [Sec. 9, Rule 3]
↓
Continuous Trial [Sec. 1, Rule 4]
↓
Judgment and Execution [Rule 5]
Period to Try and Decide
1. The court shall have a period of 1 year from
the filing of the complaint to try and decide
the case.
2. Before the expiration of the 1-year period,
the court may petition the SC for the
extension of the period for justifiable cause.
U.P. LAW BOC CIVIL PROCEDURE
3. The court shall prioritize the adjudication of
environmental cases.
[Sec. 5, Rule 4]
a. Prohibition Against Temporary
Restraining Order and
Preliminary Injunction
Rules
Except the SC, no court can issue a TRO or
writ of preliminary injunction against lawful
actions of government agencies that enforce
environmental laws or prevent violations
thereof. [Sec. 10, Rule 2]
Report on TEPO, EPO, TRO, or preliminary
injunction
The judge shall report any action taken on a
TEPO, EPO, TRO, or preliminary injunction,
including its modification and dissolution, to the
SC through the OCA within 10 days from the
day the action is taken. [Sec. 11, Rule 2]
b. Pre-trial Conference; Consent
Decree
Pre-trial conference
1. The judge shall put the parties and their
counsels under oath, and they shall
remain under oath in all pre-trial
conferences.
2. The judge shall exert best efforts to
persuade the parties to arrive at a
settlement of the dispute.
- The judge may issue a consent decree
approving the agreement between the
parties in accordance with law, morals,
public order and public policy to protect
the right of the people to a balanced and
healthful ecology
Note: Evidence not presented during the pre-
trial, except newly-discovered evidence, shall
be deemed waived.
[Sec. 5, Rule 3]
Consent decree - A judicially-approved
settlement between concerned parties based
on public interest and public policy to protect
and preserve the environment. [Sec. 4(b), Rule
1]
Page 241 of 525
REMEDIAL LAW
c. Prohibited Pleadings and
Motions
The following pleadings or motions shall not
be allowed:
1. Motion to dismiss the complaint;
2. Motion for a bill of particulars;
3. Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed 15 days;
4. Motion to declare the defendant in default;
5. Reply and rejoinder; and
6. Third party complaint [Sec. 2, Rule 2]
d. Temporary Environmental
Protection Order
Ground for Issuance
If it appears from the verified complaint with a
prayer for the issuance of an EPO that
a. The matter is of extreme urgency and
b. The applicant will suffer grave injustice and
irreparable injury. [Sec. 8, Rule 2]
Note: The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO.
[Sec. 8, Rule 2]
Period of Effectivity
72 hours from date of the receipt of the TEPO
by the party or person enjoined. [Sec. 8, Rule
2]
Duty of Court
1. Within the 72-hour period, the court shall
conduct a summary hearing to determine
whether the TEPO may be extended until
the determination of the case. [Sec. 8, Rule
2]
2. The court where the case is assigned, shall
periodically monitor the existence of acts
that are the subject matter of the TEPO
even if issued by the executive judge, and
may lift the same at any time as
circumstances may warrant [Sec. 8, Rule
2]
Ground to dissolve TEPO
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
U.P. LAW BOC CIVIL PROCEDURE
cause irreparable damage to the party or
person enjoined while the applicant may be
fully compensated for such damages as he
may suffer and subject to the posting of a
sufficient bond by the party or person enjoined.
Note: The grounds for a motion to dissolve a
TEPO shall be supported by affidavits of the
party or the person enjoined which the
applicant may oppose, also by affidavits. [Sec.
9, Rule 2]
e. Judgment and Execution;
Reliefs in a Citizen’s Suit
Judgment not stayed by appeal
Any judgment directing the performance of acts
for the protection, preservation or rehabilitation
of the environment shall be executory
pending appeal unless restrained by the
appellate court. [Sec. 2, Rule 5]
Reliefs in a citizen suit
a. If warranted, the court may grant to the
plaintiff proper reliefs which shall include—
1. The protection, preservation or
rehabilitation of the environment and
2. The payment of attorney’s fees, costs
of suit, and other litigation expenses.
b. The court may also require the violator
1. To submit a program of rehabilitation or
restoration of the environment, the
costs of which shall be borne by the
violator or
2. To contribute to a special trust fund for
that purpose subject to the control of
the court.
[Sec. 1, Rule 5]
No damages can be awarded in a citizen
suit
This measure is in line with the policy that a
citizen suit is filed in the public interest, and in
effect, it is the environment which is vindicated
in the action. The only recourse of a party or
person who wishes to recover damages for
injury suffered is to file a separate action under
Sec. 4, Rule 2. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]
Page 242 of 525
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f. Permanent Environmental
Protection Order; Writ of
Continuing Mandamus
Court action
In the judgment, the court may—
a. Convert the TEPO to a permanent EPO, or
b. Issue a writ of continuing mandamus
directing the performance of acts which
shall be effective until the judgment is fully
satisfied.
[Sec. 3, Rule 5]
Definition
Environmental protection order - An 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. [Sec. 3(d), Rule 1]
Writ of continuing mandamus - 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. 3(c), Rule 1]
Execution
The court may, by itself or through the
appropriate government agency:
a. Monitor the execution of the judgment, and
b. Require the party concerned to submit
written reports on a quarterly basis or
sooner as may be necessary.
- The reports shall detail the progress of
the execution and satisfaction of the
judgment.
- The other party may, at its option, submit
its comments or observations on the
execution of the judgment. [Sec. 3, Rule
5]
Return of writ of execution
The process of execution shall terminate upon
a sufficient showing that the decision or order
has been implemented to the satisfaction of the
court in accordance with Sec. 14, Rule 39 of
the ROC.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Sec. 2, Rule 6]
g. Strategic Lawsuit Against
Public Participation The court shall direct the plaintiff or adverse
party within 15 days from filing the comment or
lapse of period to:
Definition
a. File an opposition showing that the suit is
SLAPP refers to a legal action filed to harass,
not a SLAPP,
vex, exert undue pressure or stifle any legal
b. Attaching evidence in support thereof.
recourse that any person, institution or the
[Sec. 2, Rule 6]
government has taken or may take in the
enforcement of environmental laws, protection
The defense shall be set for hearing by the
of the environment or assertion of
court after issuance of an order to file an
environmental rights. [Sec. 1, Rule 6]
opposition within 15 days from filing of the
comment of lapse of the period. [Sec. 2, Rule
Applicability
6]
The SLAPP provisions apply not only to suits
- Hearing shall be summary in nature,
that have been filed in the form of a
- Parties must submit all available evidence
countersuit, but also to suits that are about
in support of their respective positions.
to be filed with the intention of discouraging
[Sec. 3, Rule 6]
the aggrieved person from bringing a valid
environmental complaint before the court.
Quantum of Evidence
[Annotation to the Rules of Procedure for
a. Party seeking the dismissal of the case
Environmental Cases, Supreme Court Sub-
must prove by substantial evidence that
Committee]
his acts for the enforcement of
environmental law is a legitimate action for
Illustrations:
the protection, preservation and
a. X files a complaint in an environmental
rehabilitation of the environment
case against A [violator of environmental
b. Party filing the action assailed as a
laws] and the A retaliates by filing a
SLAPP shall prove by preponderance of
complaint for damages against X;
evidence that the action is not a SLAPP
b. X is a witness in a pending environmental
and is a valid claim
case against A and A retaliates by filing a
[Sec. 3, Rule 6]
complaint for damages or libel against X; or
c. X is an environmental advocate who rallies
Resolution of the Defense of a SLAPP
for the protection of environmental rights
a. If action is dismissed, dismissal is with
and a complaint for damages is filed
prejudice
against him by A [Annotation to the Rules
b. If defense of SLAPP is rejected, action
of Procedure for Environmental Cases,
will proceed and evidence adduced during
Supreme Court Sub-Committee]
the summary hearing shall be treated as
evidence of the parties on the merits of the
SLAPP as a defense
case.
In a SLAPP filed against a person involved in
[Sec. 4, Rule 6]
the enforcement of environmental laws,
protection of environment, or assertion of
environmental rights, the defendant may:
a. File an answer interposing as a defense
that the case is a SLAPP and shall be
supported by documents, affidavits,
papers, and other evidence, and
b. By way of counterclaim, pray for damages,
attorney’s fees, and costs of suit.

Page 243 of 525

U.P. LAW BOC CIVIL PROCEDURE
3. Special Proceedings
a. Writ of Kalikasan
When available
It is a remedy available:
a. To a natural or juridical person, entity
authorized by law, people’s organization,
NGO, or any public interest group
accredited by or registered with any
government agency,
b. On behalf of persons whose constitutional
right to a balanced and healthful ecology is
violated or threatened with violation,
c. By an unlawful act or omission of a public
official or employee, or private individual or
entity,
d. Involving environmental damage to such
magnitude as to prejudice the life, health,
or property of inhabitants in two or more
cities or provinces. [Sec. 1, Rule 7]
Note: The filing of the petition shall not preclude
the filing or separate civil, criminal, or
administrative actions. [Sec. 17, Rule 7]
Where to file
The petition shall be filed with the SC or any of
the stations of the CA. [Sec. 3, Rule 7]
Form
The verified petition shall contain the
following:
a. The personal circumstances of the
petitioner;
b. The name and personal circumstances of
the respondent or if unknown/uncertain, an
assumed appellation of the respondent;
c. The environmental law, rule, or regulation
violated or threatened to be violated;
d. The act or omission complained of;
e. The environmental damage of such
magnitude as to prejudice the life, health,
or property of the inhabitants in 2 or more
cities or provinces;
f. All relevant and material evidence;
- Affidavits, documentary evidence,
scientific/expert studies, object
evidence
g. Certification of the petitioner under oath
that:
Page 244 of 525
REMEDIAL LAW
i. Petitioner has not commenced any
action or filed any claim involving the
same issues in any court, tribunal, or
quasi-judicial agency, and no such
action is pending;
ii. If there is an action pending, the
complete statement of its present
status;
iii. If the petitioner shall learn that there is a
pending action, he shall report such to
the court within 5 days.
h. Reliefs prayed for which may include a
TEPO.
[Sec. 2, Rule 7]
Exemption from docket fees
The petitioner shall be exempt from the
payment of docket fees. [Sec. 4, Rule 7]
Procedure
Filing of verified Petition with Certificate
Against Forum Shopping [Sec. 2, Rule 7]
↓
Issuance of Writ of Kalikasan within 3 days
from filing of petition [Sec. 5, Rule 7]
↓
Service of the Writ [Sec. 6, Rule 7]
↓
Filing of a verified Return within a non-
extendible period of 10 days after service of
the writ [Sec. 7, Rule 7]
↓
Hearing (court may call for preliminary
conference) [Sec. 11, Rule 7]
↓
Judgment [Sec. 15, Rule 7]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued within 3
days from the date of filing.
- The respondent shall be required to file a
verified return.
- The order shall include the issuance of a
cease and desist order and other
temporary reliefs effective until further
order. [Sec. 5, Rule 7]
U.P. LAW BOC CIVIL PROCEDURE
Judgment
Judgment shall be rendered granting or
denying the writ of kalikasan within 60 days
from the time the petition is submitted for
decision.
Reliefs that may be granted under the writ:
a. Directing the respondent to permanently
cease and desist from committing
acts/neglecting the performance of a duty
in violation of environmental laws resulting
in environmental destruction or damage;
b. Directing the respondent to protect,
preserve, rehabilitate, or restore the
environment;
c. Directing the respondent to monitor strict
compliance with the decisions and orders
of the court;
d. Directing the respondent to make periodic
reports on the execution of the final
judgment; and
e. Such other reliefs which relate to the right
of the people to a balance and healthful
ecology or to the protection, preservation,
rehabilitation, or restoration of the
environment.
Note: An award of damages to individual
petitioners is not allowed as a relief. [Sec. 15,
Rule 7]
Appeal
Any party may appeal to the SC under Rule 45
of the ROC within 15 days from notice of the
adverse judgment or denial of MR.
Note: The appeal may raise questions of fact.
[Sec. 16 Rule 7]
b. Prohibited Pleadings and
Motions
The following pleadings and motions are
prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default.
Page 245 of 525
REMEDIAL LAW
[Sec. 9, Rule 7]
c. Discovery Measures
A party may file a verified motion for the
following reliefs:
a. Ocular Inspection
b. Production or inspection of documents and
things
The motion must show that the order granting
either relief is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of
inhabitants in two or more cities or provinces.
[Sec. 12, Rule 7]
OCULAR INSPECTION
Purpose
To order any person in possession or control of
a designated land or other property to permit
entry for the purpose of inspecting or
photographing the property or any relevant
object or operation thereon. [Sec. 12, Rule 7]
Requirements
The motion must:
a. Show that an ocular inspection order is
necessary to establish the magnitude of
the violation/threat;
b. State in detail the place/places to be
inspected;
c. Be supported by affidavits of witnesses
who have personal knowledge of the
violation/threatened violation.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
inspection, and
b. The date, time, place, and manner of
making the inspection, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
U.P. LAW BOC CIVIL PROCEDURE
PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS
Purpose
To order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects
or tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
[Sec. 12, Rule 7]
Requirements
The motion must show that the production
order is necessary to establish the magnitude
of the violation or threat.
The motion shall be set for hearing. [Sec. 12,
Rule 7]
Order
The order shall specify:
a. The person/s authorized to make the
production, and
b. The date, time, place, and manner of
making the inspection or production, and
c. May prescribe other conditions to protect
the constitutional rights of all parties. [Sec.
12, Rule 7]
d. Writ of Continuing Mandamus
Definition
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. 3(c), Rule 1]
When available
When any agency or instrumentality of the
government or officer:
a. Unlawfully neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust or station
in connection with the enforcement or
violation of an environmental law, rule or
regulation or a right therein; or
b. Unlawfully excludes another from the use
or enjoyment of such right; and
Page 246 of 525
REMEDIAL LAW
c. There is no other plain, speedy and
adequate remedy in the ordinary course of
law.
[Sec. 1, Rule 8]
Where to file
The petition shall be filed with the RTC
exercising jurisdiction over the territory where
the actionable neglect or omission occurred or
with the CA or SC. [Sec. 2, Rule 8]
Form
The person aggrieved may file a verified
petition:
a. Alleging the facts with certainty,
b. Attach supporting evidence,
c. Specifying that the petition concerns an
environmental law, rule, or regulation, and
d. Praying that judgment be rendered:
i. Commanding the respondent to do an
act or series of acts until the judgment
is fully satisfied, and
ii. To pay damages sustained by the
petitioner by reason of the malicious
neglect to perform the duties of the
respondent, under the law, rules, or
regulations.
e. Accompanied by a sworn certification of
non-forum shopping. [Sec. 1, Rule 8]
Procedure
File the verified petition [Sec. 1, Rule 8]
↓
Issuance of Writ of Continuing Mandamus
and Order to Comment [Sec. 4, Rule 8]
↓
Filing of Comment within 10 days after
receipt of Order [Sec. 4, Rule 8]
↓
Summary Hearing [Sec. 6, Rule 8]
↓
Judgment [Sec. 7, Rule 8]
↓
Return of the Writ [Sec. 8, Rule 8]
Issuance
If the petition is sufficient in form and
substance, the writ shall be issued and the
court shall require the respondent to comment.
[Sec. 4, Rule 8]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: The court may grant a TEPO for the right and in both
preservation of the rights of the parties pending instances, there is
proceedings. [Sec. 5, Rule 8] no other plain,
speedy and
Judgment adequate remedy in
If warranted, the court shall grant the privilege the ordinary course
of the writ of continuing mandamus: of law.
a. Requiring respondent to perform an act or [Sec. 1]
series of acts until the judgment is fully
satisfied, Who May File
b. Grant such other reliefs as may be a. Natural and
warranted resulting from the wrongful or juridical persons
illegal acts of the respondent, b. Entities
c. Require the respondent to submit periodic authorized by
reports detailing the progress and law
execution of judgment. c. POs, NGOs, Person personally
Note: The court may by itself or through the PIG, on behalf of aggrieved by the
commissioner or the appropriate government persons whose unlawful act or
agency, evaluate and monitor compliance. The right to a omission [Sec. 1]
petitioner may also submit its comments or balanced and
observations on the execution of judgment. healthful ecology
[Sec. 7, Rule 8] is violated or
threatened to be
Return of the writ violated [Sec. 1]
The periodic reports submitted shall be Respondent
contained in partial returns of the writ. May be public or
Upon final satisfaction of the judgment, a final Government or its
private individual or
return of the writ shall be made to the court officers [Sec. 1]
entity [Sec. 1]
by the respondent. [Sec. 8, Rule 8] Docket Fees
Exempted [Sec. 4] Exempted [Sec. 3]
Distinctions Between Writ of Kalikasan and Venue
Writ of Continuing Mandamus a. RTC exercising
Writ of Continuing territorial
Writ of Kalikasan
Mandamus jurisdiction,
[Rule 7] SC or CA [Sec. 2]
[Rule 8] b. CA,
Subject Matter c. SC
Available against an Directed against [Sec. 3]
unlawful [a] the unlawful Discovery Measures
act or omission of a neglect in the
Ocular Inspection
public official or performance of an
and Production or
employee, or private act specifically None
Inspection Order
individual or entity, enjoined by law in
[Sec. 12]
involving connection with the
Damages
environmental enforcement/
Not allowed [Sec. 17] Allowed [Sec. 1]
damage of such violation of an
magnitude as to environmental rule
prejudice the life, or 4. Criminal Procedure
health or property of [b] the unlawfully
inhabitants in two or exclusion of another Filing of the information
more cities or from the use or An information, charging a person with a
provinces [Sec. 1] enjoyment of such violation of an environmental law and

Page 247 of 525

U.P. LAW BOC CIVIL PROCEDURE
subscribed by the prosecutor, shall be filed with
the court. [Sec. 2, Rule 9]
Provisional remedies available
1. Attachment in environmental cases
- Provisional remedy of attachment under
R127 of ROC may be availed of in
environmental cases. [Sec. 1, Rule 13]
2. EPO/TEPO
- The procedure for the issuance of such
shall be governed by Rule 2 of these
Rules. [Sec. 2, Rule 13]
a. Who May File
Who may file
Any offended party, peace officer, or any public
officer charged with the enforcement of an
environmental law may file a complaint before
the proper officer in accordance with the ROC.
[Sec. 1, Rule 9]
Special prosecutor
When there is no private offended party, a
counsel whose services are offered by any
person or organization may be allowed by the
court as a special prosecutor, with the
consent of and subject to the control and
supervision of the public prosecutor. [Sec. 3,
Rule 9]
b. Institution of Criminal and Civil
Action
General rule: When a criminal action is
instituted, the civil action for the recovery of civil
liability arising from the offense charged, shall
be deemed instituted with the criminal
action.
Exception:
When the complainant:
a. Waives the civil action,
b. Reserves the right to institute it separately,
or
- Shall be done during arraignment
c. Institutes the civil action prior to the criminal
action. [Sec. 1, Rule 10]
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Civil liability/damages
When civil liability is imposed or damages are
awarded:
- The filing and other legal fees shall be
imposed on the award in accordance with
R141 of ROC.
- The fees shall constitute a first lien on the
judgment award
[Sec. 1, Rule 10]
The damages awarded in cases where there
is no private offended party, less the filing fees,
shall accrue to the funds of the agency charged
with the implementation of the environmental
law violated.
- The award shall be used for the restoration
and rehabilitation of the environment
adversely affected. [Sec. 1, Rule 10]
c. Arrest Without Warrant, When
Valid
Warrant of arrest
All warrants of arrest issued by the court shall
be accompanied by a certified true copy of the
information filed with the issuing court. [Sec. 2,
Rule 11]
Arrest without warrant; when lawful
A peace officer or an individual deputized
by the proper government agency may, without
a warrant, arrest a person:
a. When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense; or
b. When an offense has just been committed,
and he has probable cause to believe
based on personal knowledge of facts and
circumstances that the person to be
arrested has committed it.
Note: Individuals deputized by the proper
government agency who are enforcing
environmental laws shall enjoy the
presumption of regularity. [Sec. 1, Rule 11]
U.P. LAW BOC CIVIL PROCEDURE
d. Procedure in The Custody and
Disposition of Seized Items
Custody and disposition of seized items
The custody and disposition of seized items
shall be in accordance with the applicable laws
or rules promulgated by the concerned
government agency. [Sec. 1, Rule 12]
Procedure
In the absence of applicable laws or rules
promulgated by the concerned government
agency, the following procedure shall be
observed:
1. The apprehending officer having initial
custody and control of the seized items,
equipment, paraphernalia, conveyances,
and instruments shall physically inventory
and whenever practicable, photograph the
same in the presence of the person from
whom such items were seized.
2. The apprehending officer shall:
a. Submit to the court, he return from
the search warrant within 5 days from
date of seizure, or
b. In case of warrantless arrest, submit to
the public prosecutor, the inventory
report, photographs, representative
samples, and other pertinent
documents within 5 days from date of
seizure.
3. Upon motion by any interested party, the
court may direct the auction sale of seized
items, equipment, paraphernalia, tools or
instruments of the crime.
- After hearing, the court shall fix the
minimum bid price based on the
recommendation of the concerned
government agency.
- The sheriff shall conduct the auction.
4. The auction sale shall be with notice to
the accused, the person from whom the
items were seized, or the owner thereof
and the concerned government agency.
5. The notice of auction shall be posted in 3
conspicuous places in the city or
municipality where the items, equipment,
paraphernalia, tools, or instruments of the
crime were seized. (publication)
6. The proceeds shall be held in trust and
deposited with the government depository
Page 249 of 525
REMEDIAL LAW
bank for disposition according to the
judgment. [Sec. 2, Rule 12]
e. Bail
Where filed
Bail in the amount fixed may be filed:
a. With the court where the case is pending,
or
b. In the absence or unavailability of the
judge, with any regional trial judge,
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
province, city, or municipality.
c. In the RTC of the place where the accused
was arrested if he was arrested in a place
other than where the place was pending, or
d. If no judge is available therein, with any
metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge
therein. [Sec. 1, Rule 14]
Hold departure order
If the court grants bail, the court may issue a
HDO in appropriate cases. [Sec. 1, Rule 14]
Duties of the court
Before granting the application for bail, the
judge must:
a. Read the information in a language known
to and understood by the accused, and
b. Require the accused to sign a written
undertaking, as follows:
i. To appear before the court that
issued the warrant of arrest for
arraignment purposes on the date
scheduled and if the accused fails to
appear, without justification on the
date of arraignment, accused waives
the reading of the information and
authorizes the court to enter a plea of
not guilty on behalf of the accused and
to set the case for trial;
ii. To appear whenever required by the
court where the case is pending; and
iii. To waive the right of the accused to be
present at trial, and upon failure of
the accused to appear without
justification and despite due notice,
the trial may proceed in absentia.
[Sec. 2, Rule 14]
U.P. LAW BOC CIVIL PROCEDURE
f. Arraignment and Plea
Arraignment
The court shall set the arraignment of the
accused within 15 days from the time it
acquires jurisdiction over the accused.
Note: Notice shall be given to the public
prosecutor, and offended party or concerned
government agency that the court will entertain
plea bargaining on the date of the arraignment.
[Sec. 1, Rule 15]
Plea-bargaining
Where there is an agreement to the plea
offered by the accused, the court shall:
a. Issue an order which contains the plea-
bargaining arrived at;
b. Proceed to receive evidence on the civil
aspect of the case, if any; and
c. Render and promulgate judgment of
conviction, including the civil liability for
damages. [Sec. 2, Rule 15]
g. Pre-trial
Setting of pre-trial conference
After the arraignment, the court shall set pre-
trial within 30 days.
Note: The court may refer the case to the COC,
if warranted, for preliminary conference to be
set at least 3 days prior to pre-trial. [Sec. 1,
Rule 16]
Manner of pre-trial
- All questions or statements must be
directed to the court. [Sec. 4, Rule 16]
- All agreements or admissions shall be
reduced in writing and signed by the
accused and counsel; otherwise, they
cannot be used against the accused.
Note: The agreements covering matters
referred to in Sec 1, Rule 118 of the ROC
shall be approved by the court. [Sec. 5,
Rule 16]
- All proceedings during pre-trial shall be:
a. Recorded,
b. The transcripts prepared, and
c. The minutes signed by the parties or
their counsels. [Sec. 6, Rule 16]
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Pre-trial order
The court shall issue a pre-trial order within 10
days after termination of the pre-trial, setting
forth:
a. The actions taken during the pre-trial
conference,
b. The facts stipulated,
c. The admissions made,
d. The evidence marked,
e. The number of witnesses to be presented,
and
f. The schedule of trial.
The order shall bind the parties and control
the course of action during the trial. [Sec. 7,
Rule 16]
h. Trial
Continuous trial
The court shall endeavor to conduct
continuous trial which shall not exceed 3
months from the date of issuance of the pre-
trial order. [Sec. 1, Rule 17]
Note: Pro bono lawyers will be provided to the
accused if he cannot afford the services of
counsel or if there is no available public
attorney. [Sec. 5, Rule 17]
Affidavits
Affidavit in lieu of direct examination shall be
used, subject to cross-examination and the
right to object to inadmissible portions of the
affidavit. [Sec. 2, Rule 17]
Memoranda
The court may require the parties to submit
their respective memoranda within 30 days
from the date the case is submitted for
decision.
Note: If possible, the memoranda shall be in
electronic form. [Sec. 3, Rule 17]
Decision
The court shall have 60 days to decide the case
counted from the last day of the 30-day period
to file the memoranda.
Note: This rule shall apply with or without
memoranda filed. [Sec. 3, Rule 17]
U.P. LAW BOC CIVIL PROCEDURE
The court shall dispose of the case within 10
months from the date of arraignment. [Sec. 4,
Rule 17]
i. Subsidiary Liabilities
The court may enforce subsidiary liability
against a person or corporation subsidiarily
liable under Art 102, 103 of the RPC when:
a. The accused is convicted,
b. Subsidiary liability is allowed by law, and
c. A motion was filed by the person entitled
to recover under judgment. [Sec. 1, Rule
18]
5. Evidence
a. Precautionary Principle
Definition
The 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. [Sec. 3(f), Rule
1]
Applicability
The court shall apply the precautionary
principle in resolving the case before it when
there is a lack of full scientific certainty in
establishing a causal link between human
activity and environmental effect. [Sec. 1, Rule
20]
Standards for application
In applying the principle, the following factors
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.
Note: The factors enumerated are not
exclusive. [Sec. 2, Rule 20]
Page 251 of 525
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b. Documentary Evidence
Photographic, video, and similar evidence
Photographs, videos, and similar evidence of
events, acts, transactions of wildlife, wildlife
byproducts or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by:
a. The person who took the same,
b. Some other person present when said
evidence was taken, or
c. Any other person competent to testify on
the accuracy thereof. [Sec. 1, Rule 21]
Entries in official records
Entries in official records are prima facie
evidence of the facts stated therein when it is
made by
a. A public officer in the performance of his
duty, or
b. A person in performance of a duty specially
enjoined by law. [Sec. 2, Rule 21]
M. ALTERNATIVE
DISPUTE RESOLUTION
R.A. 9285: “The Alternative Dispute Resolution
Act of 2004” institutionalized the use of
alternative modes of dispute resolution in the
Philippines.
Note: It did not repeal, amend, or modify the
jurisdiction of the Katarungang Pambarangay
under the LGC. [1 Riano 672, 2016 edition]
ADR is meant to serve as an efficient tool and
an alternative procedure for the resolution of
appropriate cases. RA 9285 shall be without
prejudice to the adoption by the SC of any ADR
system, such as mediation, conciliation,
arbitration, or any combination thereof as a
means of achieving speedy and efficient
means of resolving cases pending before the
courts. [Sec. 2, R.A. 9285]
Note: The current rules on civil procedure
mandate Court-Annexed Mediation and
Judicial Dispute Resolution, when deemed
necessary by the court.
U.P. LAW BOC CIVIL PROCEDURE
1. Types Of Processes And
Procedures In Adr;
Comparison With Court-
Annexed Mediation
ADR system
The ADR system refers to any process or
procedure used to resolve a dispute or
controversy, other than by adjudication of a
presiding judge of a court or an officer of a
government agency.
It is a system in which a neutral 3rd-party
participates to assist in the resolution of
issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial,
or any combination thereof. [Sec. 3(a), R.A.
9285]
ADR processes
a. Arbitration - a voluntary dispute resolution
process in which one or more arbitrators,
appointed in accordance with the
agreement of the parties, or rules
promulgated pursuant to this Act, resolve a
dispute by rendering an award.
b. Court-referred mediation - a mediation
ordered by a court to be conducted in
accordance with the agreement of the
parties when an action is prematurely
commenced in violation of such
agreement.
c. Early neutral evaluation - An ADR
process wherein parties and their lawyers
are brought together early in a pre-trial
phase to present summaries of their cases
and receive a nonbinding assessment by
an experienced neutral person, with
expertise in the subject in the substance of
the dispute.
d. Mediation - A voluntary process in which a
mediator, selected by the disputing parties,
facilitates communication and negotiation,
and assists the parties in reaching a
voluntary agreement regarding a dispute.
e. Mediation-Arbitration - A step dispute
resolution process involving both mediation
and arbitration; also known as Med-Arb.
[Sec. 3, R.A. 9285]
Page 252 of 525
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The parties may agree to refer issues arising
from a dispute or during its pendency to other
forms of ADR such as but not limited to:
a. Evaluation of a third-person,
b. Mini-trial,
c. Mediation-arbitration, or
d. A combination thereof. [Sec. 18, R.A. 9285]
Court-annexed mediation
It is a mediation process conducted under the
auspices of the court, after such court has
acquired jurisdiction of the dispute.
[Sec. 3, R.A. 9285]
Note: Court-annexed mediation is now
mandatory after pre-trial under the amended
rules.
2. Domestic Arbitration
Domestic arbitration means an arbitration that
is not international as defined in the Model Law
International arbitration as defined by the
Model Law
An arbitration is international if:
a. The parties to an arbitration agreement
have, at the time of the conclusion of that
agreement, their places of business in
different States.; or
b. One of the following places is situated
outside the State in which the parties have
their place of business:
i. The place of arbitration if determined
in, or pursuant to, the arbitration
agreement;
ii. Any place where a substantial part of
the obligations of the commercial
relationship is to be performed or the
place with which the subject-matter of
the dispute is most closely connected;
or
iii. The parties have expressly agreed that
the subject-matter of the arbitration
agreement is related to more than one
country.
Governing Law
Domestic arbitration shall continue to be
governed by R.A. 876: “The Arbitration Law” as
amended by chapter 5 of R.A. 9285. [Sec. 32,
R.A. 9285]
U.P. LAW BOC CIVIL PROCEDURE
Note: Articles 8, 10-14, 18, 19, and 29-31 of the
Model law and Sec 22-31 of Chapter 4 on
International Commercial Arbitration shall
apply to Domestic Arbitration. [Sec. 33, R.A.
9285]
3. Judicial Review of Arbitral
Awards
DOMESTIC AWARDS
Confirmation
The confirmation of a domestic arbitral award
shall be governed by Sec. 23 of R.A. 876. [Sec.
40, R.A. 9285]
At any time within 1 month after the award is
made, any party to the controversy which was
arbitrated may apply to the RTC for an order
confirming the award.
The court must grant such order in accordance
with the rules to be promulgated by the SC
unless the award is vacated, modified, or
corrected. [Sec. 23, R.A. 876 and Sec. 40, R.A.
9285]
Note: Notice of such motion must be served by
law for the service of such notice upon an
attorney-in-action in the same court. [Sec. 23,
R.A. 876]
A Construction Industry Arbitration
Commission arbitral award need not be
confirmed by the RTC to be executory. [Sec.
40, R.A. 9285]
Execution
A domestic arbitral award, when confirmed,
shall be enforced in the same manner as final
and executory decisions of the RTC. [Sec. 40,
R.A. 9285]
Rejection
A party to a domestic arbitration may question
the arbitral award with the appropriate RTC in
accordance with the rules promulgated by the
SC. [Sec. 41, R.A. 9285]
It may only be questioned on the following
grounds:
Page 253 of 525
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a. There was an evident miscalculation of
figures, or an evident mistake in the
description of any person, thing, or
property referred to in the award; or
b. The arbitrators have awarded upon a
matter not submitted to them, not affecting
the merits of the decision upon the matter
submitted; or
c. The award is imperfect in a matter of form
not affecting the merits of the controversy,
and if it had been a commissioner’s report,
the defect could have been amended or
disregarded by the court.
[Sec. 41, R.A. 9285 and Sec. 25, R.A. 876]
FOREIGN ARBITRAL AWARDS
Recognition and enforcement
The New York Convention shall govern the
recognition and enforcement of arbitral awards
covered by such convention. [Sec. 42, R.A.
9285]
The recognition and enforcement of such
awards:
a. Shall be filed with the RTC,
b. In accordance with the rules promulgated
by the SC.
- The rules shall provide that the party
relying on the award or applying for its
enforcement shall file with the court an
original copy of the award or
arbitration agreement.
- Note: if it is not in any of the official
languages, the party shall supply a
duly certified translation.
c. The applicant shall establish that the
country in which the foreign arbitration
award was made if a party to the New York
Convention.
[Sec. 42, R.A. 9285]
When there is an application for rejection or
suspension of enforcement of the award, the
RTC may:
a. Vacate its decision, and
b. On application of the party claiming
recognition or enforcement, order the party
to provide appropriate security.
[Sec. 42, R.A. 9285]
U.P. LAW BOC CIVIL PROCEDURE
Arbitral awards not covered by the New
York Convention
The Court may, on the grounds of comity and
reciprocity, recognize and enforce a non-
convention award as a convention award. [Sec.
43, R.A. 9285]
Foreign arbitral awards not a foreign
judgment
A foreign arbitral award when confirmed by a
court of a foreign country, shall be recognized
and enforced as a foreign arbitral award and
not a judgment of a foreign court. [Sec. 44, R.A.
9285]
A foreign arbitral award, when confirmed by the
RTC, shall be enforced as a foreign arbitral
award and not as a judgment of a foreign court.
It shall be enforced in the same manner as final
and executory decisions of courts of law in the
Philippines. [Sec. 44, R.A. 9285]
Rejection
A party to a foreign arbitration proceeding may
oppose an application for recognition and
enforcement of the arbitral award in
accordance with the rules to be promulgated by
the SC.
4. Appeal From Court Decisions
On Arbitral Awards
Appeal
A decision of the RTC confirming, vacating,
setting aside, modifying, or correcting an
arbitral award may be appealed to the CA in
accordance with the rules to be promulgated by
the SC. [Sec. 46, R.A. 9285]
Bond
The appellant must post a counterbond
executed in favor of the prevailing party equal
to the amount of the award in accordance with
the rules to be promulgated by the SC. [Sec.
46, R.A. 9285]
Page 254 of 525
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VENUE AND JURISDICTION
Nature and venue
Proceedings for recognition and enforcement,
vacation and setting aside, correction, or
modification of an arbitral award, and any
application for arbitral assistance and
supervision, shall be deemed as special
proceedings and shall be filed with the RTC:
a. Where arbitration proceedings are
conducted;
b. Where the asset to be attached or levied
upon, or the act to be enjoined is located;
c. Where any of the parties to the dispute
resides or has his place of business; or
d. In the national judicial capital region, at the
option of the applicant.
[Sec. 47, R.A. 9285]
Notice of proceedings
Where
The court shall send notice to the parties at
their address of record in the arbitration or at
the party’s last known address if he cannot be
served at such address. [Sec. 48, R.A. 9285]
When
The notice shall be sent at least 15 days before
the date set for the initial hearing of the
application. [Sec. 48, R.A. 9285]
5. Special Rules Of Court on
ADR
[AM No. 07-11-08-SC]
Nature
All proceedings under the Special ADR Rules
are special proceedings. [Sec. 2, Rule 1]
a. Subject Matter
The Special ADR Rules shall apply to and
govern the following cases:
a. Relief on the issue of existence, validity, or
enforceability of the arbitration agreement;
b. Referral to ADR;
c. Interim measures of protection;
d. Appointment of arbitrator;
e. Challenge to appointment of arbitrator;
U.P. LAW BOC CIVIL PROCEDURE
f. Termination of mandate of arbitrator;
g. Assistance in taking evidence;
h. Confirmation, correction, or vacation of
award in domestic arbitration;
i. Recognition and enforcement or setting
aside of an award in international
commercial arbitration;
j. Recognition and enforcement of a foreign
arbitral award;
k. confidentiality/ protective orders; and
l. Deposit and enforcement of mediated
settlement agreements. [Sec. 1, Rule 1]
b. Summary Proceedings in
Certain Cases
The proceedings in the following instances are
summary in nature:
a. Judicial relief involving the issue of
existence, validity, or enforceability of the
arbitration agreement;
b. Referral to ADR;
c. Interim measures for protection;
d. Appointment of arbitrator;
e. Challenge to appointment of arbitrator;
f. Termination of mandate of arbitrator;
g. Assistance in taking evidence;
h. Confidentiality/ protective orders; and
i. Deposit and enforcement of mediated
settlement agreements.
[Sec. 3, Rule 1]
Service and filing of petition
The petitioner shall serve a copy of the petition
on the respondent before the filing thereof:
a. By personal service
b. By courier
Proof of service shall be attached to the petition
filed in court.
Mode of
Proof of service
service
Affidavit of the person who
Personal effected service, stating the
service time, place, and manner of the
service of the respondent.
Service by
Signed courier proof of delivery
courier
Page 255 of 525
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Note: If service is refused or has failed, the
affidavit or delivery receipt must state the
circumstances of the attempted service and
refusal or failure thereof.
[Sec. 3(A), Rule 1]
Notice
General Rule:
If the court finds the petition sufficient in form
and substance, it shall send notice to the
parties containing:
a. A directive to appear at a particular time
and date for hearing
- Hearing shall be set no later than 5
days from the lapse of the period for
filing the opposition or comment.
b. A statement allowing him to file a comment
or opposition to the petition within 15 days
from receipt of notice
Exception: Cases involving referral to ADR or
confidentiality/protection orders.
Such motion shall be set for hearing by the
movant and contain a notice of hearing that
complied with the requirements under Rule 15
of the ROC motions.
[Sec. 3(B), Rule 1]
Summary hearing
In all cases, as far as practicable, the summary
hearing:
a. Shall be conducted in 1 day, and
b. Only for the purposes of clarifying facts.
Note: Except in cases involving referral to ADR
or Confidentiality/protective orders, it shall be
the court that sets the hearing within 5 days
from the lapse of the period for filing opposition
or comment.
[Sec. 3(C), Rule 1]
Resolution
The court shall resolve the matter within 30
days from the day of the hearing. [Sec. 3(D),
Rule 1]
U.P. LAW BOC CIVIL PROCEDURE
c. Prohibited Submissions
The following pleadings, motions, or petitions
shall not be allowed in the cases governed by
the Special ADR Rules and shall not be
accepted for filing by the COC:
a. Motion to dismiss;
b. Motion for bill of particulars;
c. Motion for new trial or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension, except in cases
where an ex-parte temporary order of
protection has been issued;
f. Rejoinder to reply;
g. Motion to declare a party in default; and
h. Any other pleading specifically disallowed
under any provision of the Special ADR
Rules.
[Sec. 6, Rule 1]
Court action
The court shall motu proprio order a
pleading/motion that it has determined to be
dilatory in nature, be expunged from the
records. [Sec. 6, Rule 1]
d. Judicial Relief Involving the
Issue of Existence, Validity, and
Enforceability of Arbitration
Agreements
When available
Judicial relief under Rule 3 of the Special ADR
Rules, whether resorted to before or after
commencement of arbitration, shall apply only
when the place of arbitration is in the
Philippines. [Sec. 1, Rule 3]
JUDICIAL RELIEF BEFORE
COMMENCEMENT OF ARBITRATION
Who may file
Any party to an arbitration agreement may
petition the appropriate court to determine any
question concerning the existence, validity,
and enforceability of such arbitration
agreement, serving a copy on the respondent.
[Sec. 2, Rule 3]
Page 256 of 525
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When filed
The petition may be filed at any time prior to
the commencement of arbitration.
Note: Despite the pendency of the petition,
arbitral proceedings may be commenced
and continue to the rendition of an award.
[Sec. 3, Rule 3]
The petition may not be commenced when
the existence, validity, enforceability of an
arbitration agreement has been raised as one
of the issued in a prior action before the same
or another court. [Sec. 9, Rule 3]
Where filed
The petition may be filed before the RTC of the
place where any of the petitioners or
respondents has his principal place of business
or residence. [Sec. 4, Rule 3]
Grounds
A petition may be granted only if it is shown that
the arbitration agreement is, under the
applicable law:
a. Invalid,
b. Void,
c. Unenforceable, or
d. Inexistent.
[Sec. 5, Rule 3]
Contents of the petition
The verified petition shall state the following:
a. The facts showing that the persons names
as petitioner or respondent have legal
capacity to be sued;
b. The nature and substance of dispute
between the parties;
c. The grounds and circumstances relied
upon by the petitioner to establish position;
d. The reliefs sought.
Aside from other submissions, the petitioner
must also attach an authentic copy of the
arbitration agreement. [Sec. 6, Rule 3]
When the petitioner also applies for an interim
measure of protection, he must also comply
with the requirements for the application of
such interim measure of protection. [Sec. 10,
Rule 3]
U.P. LAW BOC CIVIL PROCEDURE
Comment/Opposition
The comment/opposition of the respondent
must be filed within 15 days from service of
the petition. [Sec. 7, Rule 3]
Court action
The court must exercise judicial restraint and
defer to the competence or jurisdiction of the
arbitral tribunal to rule on its incompetence or
jurisdiction. [Sec. 8, Rule 3]
Relief against court action
A prima facie determination by the court
upholding the existence, validity, or
enforceability of an arbitration agreement shall
not be subject to a motion for
reconsideration, appeal, or certiorari.
Such determination, however, will not prejudice
the right of any party to raise the issue of
existence, validity, and enforceability of the
arbitration agreement before the arbitral
tribunal or the court in an action to vacate or
set aside the arbitral award.
- In this case, the court is no longer limited
to a mere prima facie determination of the
issues, but shall be a full review of such
issues with due regard to the standard for
review for arbitral awards prescribed in the
Special ADR Rules. [Sec. 11, Rule 3]
JUDICIAL RELIEF AFTER ARBITRATION
COMMENCES
Who may file
Any party to arbitration may petition the
appropriate court for judicial relief from the
ruling of the arbitral tribunal on a preliminary
question upholiding or declining its jurisdiction.
Note: If the ruling of the arbitral tribunal is
reversed by the court, the parties shall be free
to replace the arbitrators or any one of them
in accordance with the rules that were
applicable for the appointment of the arbitrator
sought to be replaced. [Sec. 12, Rule 3]
Arbitral tribunal
The arbitral tribunal is only a nominal party
and the court shall not require the tribunal to
submit any pleadings or written submissions.
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The court may consider the same should the
tribunal participate in the proceedings. [Sec.
22, Rule 3]
When filed
The petition may be filed within 30 days after
having received notice of that ruling by the
arbitral tribunal. [Sec. 13, Rule 3]
Where filed
The petition may be filed before the RTC of the
place where arbitration is taking place, or
where any of the petitioners or respondents
has his principal place of business or
residence. [Sec. 14, Rule 3]
Grounds
The petition may be granted when the court
finds that the arbitration agreement is:
a. Invalid,
b. Inexistent, or
c. unenforceable
As a result of which, the arbitral tribunal has
no jurisdiction to resolve the dispute. [Sec.
15, Rule 3]
When petition not allowed
Where the arbitral tribunal defers its ruling on
preliminary questions regarding its jurisdiction
until its final award, the aggrieved party
cannot seek judicial relief. He must await the
final arbitral award before seeking judicial
recourse. [Sec. 20, Rule 3]
A ruling by the arbitral tribunal deferring
resolution on the issue of its jurisdiction until
final award, shall not be subject to MR, appeal,
or a petition for certiorari. [Sec. 20, Rule 3]
Contents of the petition
The petition shall state the following:
a. The facts showing that the persons names
as petitioner or respondent have legal
capacity to be sued;
b. The nature and substance of dispute
between the parties;
c. The grounds and circumstances relied
upon by the petitioner to establish position;
d. The reliefs sought.
U.P. LAW BOC CIVIL PROCEDURE
Aside from other submissions, the petitioner
must also attach an authentic copy of the
arbitration agreement. [Sec. 16, Rule 3]
Note: The arbitrators shall be impleaded as
nominal parties to the case and shall be notified
of the progress of the case. [Sec. 16, Rule 3]
Comment/Opposition
The comment/opposition of the must be filed
within 15 days from service of the petition.
[Sec. 17, Rule 3]
Court action
The court shall render judgment on the basis
of the pleadings filed and the evidence
submitted by the parties, within 30 days from
the time the petition is submitted for resolution.
Note: The court shall not enjoin the arbitration
proceedings and judicial recourse to the court
shall not prevent the tribunal from
continuing proceedings and rendering its
award. [Sec. 18, Rule 3]
Dismissal of petition
The court shall dismiss the petition if:
a. It fails to comply with the required contents
for the petition, or
b. If upon consideration or the grounds
alleged and the legal briefs submitted, the
petition does not appear to be prima facie
meritorious. [Sec. 18, Rule 3]
Relief against court action
The aggrieved party may file a MR of the order
of the court.
The decision of the court shall not be subject
to appeal.
[Sec. 19, Rule 3]
The ruling of the court affirming the arbitral
tribunal’s jurisdiction shall not be subject to a
petition for certiorari. But if the court rules that
the arbitral tribunal has no jurisdiction, such
ruling may be the subject of a petition for
certiorari. [Sec. 19, Rule 3]
Rendition of arbitral award before court
decision on petition from arbitral tribunal’s
preliminary ruling on jurisdiction
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If the arbitral tribunal renders a final arbitral
award and the court has not rendered a
decision on the petition from the tribunal’s
preliminary ruling affirming its jurisdiction, then
the petition shall be ipso facto moot and
academic and shall be dismissed by the
RTC.
Note: The dismissal shall be without prejudice
the right of the aggrieved party to raise the
same issue in a petition to vacate or set aside
the award. [Sec. 21, Rule 3]
e. Interim Measures of Protection
Who may ask for interim measures of
protection
A party to an arbitration agreement may
petition the court for interim measures of
protection. [Sec. 1, Rule 5]
When to petition
A petition for an interim measure of protection
may be made:
a. Before arbitration is commenced,
b. After arbitration is commenced, but before
the constitution of the arbitral tribunal, or
c. After the constitution of the arbitral tribunal
and at any time during arbitral proceedings.
- During this time, the interim measure
of protection shall only be to the extent
that the arbitral tribunal has no power
to act or is unable to act effectively.
[Sec. 2, Rule 5]
Where to file
A petition for an interim measure of protection
may be filed with the RTC, which has
jurisdiction over any of the following places:
a. Where the principal place of business of
any of the parties to the arbitration is
located;
b. Where any of the parties who are
individuals resides;
c. Where any of the acts sought to be
enjoined are being performed, threatened
to be performed, or not being performed; or
d. Where the real property subject of
arbitration, or a portion thereof is situated.
[Sec. 3, Rule 5]
U.P. LAW BOC CIVIL PROCEDURE
Grounds
The following grounds, indicate the nature of
the reasons that the court shall consider in
granting the relief:
a. The need to prevent irreparable loss or
injury;
b. The need to provide security for the
performance of any obligation;
c. The need to produce or preserve evidence;
d. The need to compel any other appropriate
act or omission.
Note: The grounds enumerated shall not limit
the reasons for the court to grant an interim
measure of protection. [Sec. 4, Rule 5]
Contents of the petition
The verified petition must state the following:
a. The fact that there is an arbitration
agreement;
b. The fact that the arbitral tribunal has not
been constituted, or if constituted, is
unable to act or would be unable to act
effectively;
c. A detailed description of the appropriate
relief sought;
d. The grounds relied on for the allowance of
the petition.
The petitioner must also attach an authentic
copy of the arbitration agreement. [Sec. 5, Rule
5]
Interim measures that may be granted
The following, among others, are the interim
measures of protection that a court may grant:
a. Preliminary injunction directed against a
party to arbitration;
b. Preliminary attachment against property or
garnishment of funds in the custody of a
bank or 3rd person;
c. Appointment of a receiver;
d. Detention, preservation, delivery, or
inspection of property; or
e. Assistance in the enforcement of an interim
measure of protection granted by the
arbitral tribunal, which the latter cannot
enforce effectively. [Sec. 6, Rule 5]
Ex parte temporary order of protection
Grounds
a. The petitioner alleges that there is an
urgent need to:
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i. Preserve property,
ii. Prevent the respondent from
disposing or concealing the property,
or
iii. Prevent the relief prayed for from
becoming illusory because of prior
notice.
b. The court finds that the reasons given are
meritorious.
In such instances, the court shall issue an
immediately executory temporary order of
protection and require the petitioner within 5
days from receipt to post a bond to answer for
any damage that the respondent may suffer as
a result of the order. [Sec. 9, Rule 5]
Note: Prior notice to the other party shall not be
necessary. [Sec. 7, Rule 5]
The temporary order of protection shall be
valid only for 20 days from the service on the
party required to comply with the order. Within
such period, the court shall:
a. Furnish the respondent of a copy of the
petition and a notice requiring him to
comment on or before the day the petition
will be heard; and
b. Notify the parties that the petition shall be
heard on a day specified in the notice,
which must not be beyond the 20 day
period.
The respondent may have the option of having
the order lifted by posting a counter-bond.
The court may extend the period of validity of
the order for no more than 20 days from
expiration of the original period, if
a. The respondent requests the court of:
i. An extension of the period to file an
opposition/comment, or
ii. To reset the hearing to a later date.
b. The request is granted by the court.
[Sec. 9, Rule 5]
Comment/Opposition
The comment or opposition must be filed
within 15 days from service of the petition and
must state why the interim measure for
protection should not be granted. [Sec. 8, Rule
5]
U.P. LAW BOC CIVIL PROCEDURE
If the parties fail to file their opposition, the
court shall motu proprio render judgment:
a. On the basis of the allegations in the
petition that are substantiated by
supporting documents, and
b. Limited to what is prayed for. [Sec. 9, Rule
5]
Court action
General rule: The court shall defer action on
any pending petition for an interim measure of
protection upon being informed that an arbitral
tribunal has been constituted.
Exception: The court may act upon such
petition if the petitioner establishes that:
a. The tribunal has no power to act on the
interim measure of protection, or
b. The tribunal is unable to act on it
effectively.
[Sec. 15, Rule 5]
After hearing, the court shall resolve the matter
within 30 days:
a. From submission of the opposition, or
b. Upon lapse of the period to file the same,
or
c. From termination of the hearing set by the
court if there is a need for clarification or
further argument.
[Sec. 9, Rule 5]
After notice and hearing, the court may either
grant or deny the petition for an interim
measure of protection.
- Such order must indicate that it is issued
without prejudice to subsequent grant,
modification, amendment, revision, or
revocation by an arbitral tribunal. [Sec. 9,
Rule 5]
- The order shall be immediately executory.
[Sec. 10, Rule 5]
- The order may be conditioned upon the
provision of security, performance of an
act or omission. [Sec. 12, Rule 5]
- The order granted or denied is without
prejudice to subsequent grant,
modification, amendment, revision, or
revocation by the arbitral tribunal. [Sec. 5,
Rule 5]
Page 260 of 525
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Relief against court action
The order may be the subject of a MR, and/or
appeal, or a petition for certiorari. [Sec. 10,
Rule 5]
Interim measure of protection by arbitral
tribunal
The interim measure of protection issued by
the arbitral tribunal shall, upon its issuance, be
deemed to have ipso jure modified, amended,
revised, or revoked one previously issued by
the court to the extent that it is inconsistent with
the one issued by the tribunal. [Sec. 13, Rule
5]
The court may not change the security ordered
by the arbitral tribunal. [Sec. 12, Rule 5]
The court shall assist in the enforcement of an
interim measure of protection issued by the
arbitral tribunal. [Sec. 16, Rule 5]
The court shall not deny an application for
assistance in implementing or enforcing an
interim measure of protection issued by an
arbitral tribunal on the following grounds:
a. The tribunal granted the relief ex parte;
b. The party opposing the application found
new material evidence, which the tribunal
had not considered in granting the
application and if considered, may produce
a different result; or
- If there is sufficient merit in the
opposition of the application based on
this ground, the court shall refer the
matter back to the arbitral tribunal
c. The measure of protection ordered by the
tribunal amends, revoked, modifies, or is
inconsistent with an earlier measure of
protection issued by the court. [Sec. 11,
Rule 5]
Conflict or inconsistency between the
interim measure of protection issued by the
court and the arbitral tribunal
Any question involving conflict or inconsistency
shall be immediately referred by the court to
the arbitral tribunal which shall have the
authority to decide such question. [Sec. 14,
Rule 5]
U.P. LAW BOC CIVIL PROCEDURE
f. Enforcement and Recognition
or Setting Aside of an
International Commercial
Arbitral Award
Note: Recourse to a court against an arbitral
award shall be made only through a petition to
set aside the arbitral award and on the grounds
prescribed by law. Any other recourse such as
by appeal, petition for review, or petition for
certiorari shall be dismissed by the court. [Sec.
5, Rule 12]
Who may file
A party to an international commercial
arbitration in the Philippines, may petition the
proper court to recognize and enforce or set
aside an arbitral award. [Sec. 1, Rule 12]
When to file
1. Petition to recognize and enforce [Sec.
2(A), Rule 12]
- May be filed anytime from receipt of
award
- However, if a petition to set aside has
been filed, the opposing party must file
therein if it is not yet time-barred. [Sec.
6, Rule 12]
2. Petition to set aside [Sec. 2(B), Rule 12]
- May only be filed within 3 months from
the time the petitioner receives a copy
of the arbitral award. Or from the time
he received the resolution by the arbitral
award of a request for correction,
interpretation, or additional award.
- Note: The dismissal of a petition to set
aside an arbitral award shall not
automatically result in the approval of
the petition or opposition for recognition
and enforcement of the award.
- Failure to file a petition to set aside,
shall preclude a party from raising
grounds to resist enforcement of the
award.
Where to file
The petition may, at the option of the petitioner,
be filed with the RTC:
a. Where arbitration proceedings were
conducted;
Page 261 of 525
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b. Where any of the assets to be attached or
levied upon is located;
c. Where the act to be enjoined will be or is
being performed;
d. Where any of the parties to the arbitration
resides or has its place of business; or
e. In the national capital judicial region. [Sec.
3, Rule 12]
Form and contents
The application shall be verified by a person
who has personal knowledge of the facts state.
[Sec. 6, Rule 12]
1. Petition to recognize and enforce shall
state the following:
a. The addresses of record, or any change
thereof, of the parties to arbitration;
b. A statement that the arbitration
agreement or submission exists;
c. The names of the arbitrators and proof of
their appointment;
d. A statement that an arbitral award was
issued and when the petitioner received
it; and
e. The relief sought.
Apart from other submissions, the
petitioner shall attach to the petition the
following:
a. An authentic copy of the arbitration
agreement;
b. An authentic copy of the arbitral
award;
c. A verification and certification against
forum shopping; and
d. An authentic copy or authentic copies
of the appointment of an arbitral
tribunal.
2. Petition to set aside
- Shall have the same contents as a
petition to recognize and enforce
- In addition, the petition should state the
grounds relied upon to set it aside.
In either case, if another court was previously
requested to resolve and/or has resolved, on
appeal, the arbitral tribunal’s preliminary
determination in favor of its own jurisdiction,
the petitioner shall apprise the court. [Sec. 7,
Rule 12]
U.P. LAW BOC CIVIL PROCEDURE
Notice
If the petition is sufficient in form and
substance, the court shall cause notice and a
copy of the petition to be delivered to the
respondent.
- It shall direct the respondent to file an
opposition within 15 days from receipt or
to file a petition to set aside in
opposition to a petition to recognize and
enforce or a petition to recognize and
enforce in opposition to a petition to set
aside. [Sec. 8, Rule 12]
Grounds to set aside or resist enforcement
The court may set aside or refuse the
enforcement of the arbitral award only if:
a. The petitioner furnishes proof that:
i. A party to the arbitration agreement was
under some incapacity, or the said
agreement is not valid under the law to
which the parties have subjected it or,
failing any indication thereof, under
Philippine law;
ii. The party making the application to set
aside or resist enforcement was not
given proper notice of the appointment
of an arbitrator or of the arbitral
proceedings or was otherwise unable to
present his case;
iii. The award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration, or
contains decisions on matters beyond
the scope of the submission to
arbitration;
- If the decisions on the matters
are separable, only that part of
the award which contains
decisions on matters not
submitted may be set aside.
iv. The composition of the arbitral tribunal
or the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of Philippine law
from which the parties cannot derogate,
or, failing such agreement, was not in
accordance with Philippine law.
Page 262 of 525
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b. The court finds that:
i. The subject-matter of the dispute is not
capable of settlement by arbitration
under the Philippine law; or
ii. The recognition or enforcement of the
award would be contrary to public
policy.
Note: The grounds enumerated are exclusive.
[Sec. 4, Rule 12]
Party is a minor/incompetent
The petition to set aside on the ground that a
party was a minor or an incompetent, shall be
filed only on behalf of the minor or incompetent
and shall allege that:
a. The other party had knowingly entered into
a submission or agreement with such
minor/incompetent, or
b. The submission to arbitration was made by
a guardian who was not authorized to do
so by a competent court. [Sec. 4, Rule 12]
Submission of documents
1. If the court finds that the issue between the
parties is mainly one of law
- The parties may be required to submit
briefs of legal arguments within 15
days from receipt of order.
2. If the court finds that there are issued of
facts relating to the grounds to set aside
- The parties shall be required to submit
affidavits of all their witnesses within 15
days from receipt of order and reply
affidavits within 10 days from receipt of
the affidavits to be replied to.
- The documents relied upon shall be
attached to the affidavits.
[Sec. 9, Rule 12]
Hearing
If the court finds that there is a need to conduct
an oral hearing based on the petition,
opposition, and affidavits, the court shall set
the case for hearing.
- The affidavits shall take the place of direct
testimonies and shall be immediately
subject to cross-examination.
Note: This case shall have preference over
other cases before the court, except criminal
cases. [Sec. 10, Rule 12]
U.P. LAW BOC CIVIL PROCEDURE
Suspension of proceedings in a petition to
set aside
The court may suspend the proceedings when
appropriate and upon request by a party to:
a. Give the tribunal an opportunity to resume
the arbitral proceedings, or
b. Take such action as in the arbitral tribunal’s
opinion will eliminate the grounds for
setting aside, or
c. When there is a pending appeal as to the
preliminary ruling of an arbitral tribunal
affirming its jurisdiction.
Note: The court is not allowed to direct the
tribunal to reverse its award, revise its findings,
or otherwise encroach upon the independence
of the tribunal. [Sec. 11, Rule 12]
Presumption in favor of confirmation
It is presumed that an arbitral award:
a. Was made and released in due course,
and
b. Is subject to enforcement by the court.
Unless, the adverse party is able to establish a
ground for setting aside or not enforcing the
award. [Sec. 12, Rule 12]
Judgment of the court
Petition to set aside
- Unless the ground to set aside the award is
fully established, the court shall dismiss the
petition.
- If there is also a petition to recognize and
enforce filed in opposition to the petition to
set aside, the court shall recognize and
enforce the award.
Note: In resolving the petition, the court
shall either set aside or enforce the
arbitral award and shall not disturb the
tribunal’s determination of facts and/or
interpretation of law. [Sec. 13, Rule 12]
Costs
The prevailing party shall be entitled to an
award of costs.
The petitioner shall submit a statement under
oath confirming the costs (including attorney’s
fees) he has incurred in the proceedings for
recognition and enforcement or setting aside.
Unless otherwise agreed upon by the parties in
writing. [Sec. 14, Rule 12]
Page 263 of 525
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g. Recognition and Enforcement
of a Foreign Arbitral Award
Governing law
The recognition and enforcement of a foreign
arbitral award shall be governed by the 1958
New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards and
this Rule (Rule 13).
When country not a signatory to the New
York Convention
The court may, upon grounds of comity and
reciprocity, recognize and enforce a foreign
arbitral award made in a country that is not a
signatory to the New York Convention. [Sec. 4,
Rule 13]
- Only when such country extends comity
and reciprocity to awards made in the
Philippines. If not, the court may
nevertheless treat such award as a foreign
judgment enforceable as such under Sec
48, Rule 39 of the ROC. [Sec. 12, Rule 13]
Who may file
Any party to a foreign arbitration may petition
the court to recognize and enforce a foreign
arbitral award. [Sec. 1, Rule 13]
When to file
At any time after receipt of a foreign arbitral
award, the party may petition to the proper RTC
to recognize and enforce such award. [Sec. 2,
Rule 13]
Where to file
The petition shall be filed, at the option of the
petitioner, with the RTC:
a. Where the assets to be attached or levied
upon is located,
b. Where the act to be enjoined is being
performed,
c. In the principal place of business in the
Philippines of any of the parties,
d. Where any of the individuals who are
parties resides,
e. In the national capital judicial region. [Sec.
3, Rule 13]
U.P. LAW BOC CIVIL PROCEDURE
Presumption in favor of confirmation
It is presumed that a foreign arbitral award:
a. Was made and released in due course of
arbitration, and
b. Is subject to enforcement by the court.
[Sec. 11, Rule 13]
Grounds
The court may not set aside a foreign arbitral
award.
It may refuse recognition and enforcement on
the following grounds:
a. The party making the application to refuse
recognition and enforcement furnishes
proof that:
i. A party to the arbitration agreement
was under some incapacity; or the
said agreement is not valid under the
law to which the parties have
subjected it or, failing any indication
thereof, under the law of the country
where the award was made; or
ii. The party making the application was
not given proper notice of the
appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
iii. The award deals with a dispute not
contemplated by or not falling within
the terms of the submission to
arbitration, or contains decisions on
matters beyond the scope of the
submission to arbitration;
- if the decisions on matters
submitted to arbitration can be
separated from those not so
submitted, only that part of the
award which contains decisions on
matters not submitted to arbitration
may be set aside; or
iv. The composition of the arbitral tribunal
or the arbitral procedure was not in
accordance with the agreement of the
parties or, failing such agreement, was
not in accordance with the law of the
country where arbitration took place;
or
v. The award has not yet become
binding on the parties or has been set
aside or suspended by a court of the
Page 264 of 525
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country in which that award was
made; or
b. The court finds that:
i. The subject-matter of the dispute is
not capable of settlement or resolution
by arbitration under Philippine law; or
ii. The recognition or enforcement of the
award would be contrary to public
policy.
Note: The grounds are exclusive. [Sec. 4, Rule
13]
Contents
The petition shall state the following:
a. The addresses of the parties to the
arbitration;
b. The country where the award was made
and whether such country is a signatory to
the New York Convention; and
c. The relief sought.
Apart from other submissions, the petition shall
attach:
a. An authentic copy of the arbitration
agreement; and
b. An authentic copy of the arbitral award.
Note: If such documents are not in English, the
petitioner shall attach a translation which shall
be certified by an official or sworn translator or
by a diplomatic/consular agent. [Sec. 5, Rule
13]
Notice
Upon finding that the petition is sufficient in
form and substance, the court shall cause
notice and a copy of the petition to be
delivered to the respondent. [Sec 6, Rule 13]
Opposition
The respondent may file an opposition within
30 days from receipt of notice. [Sec. 6, Rule
13]
- It shall be verified by a person who has
personal knowledge of the facts stated.
[Sec. 7, Rule 13]
Submissions
1. If the issue between the parties is one of
law
U.P. LAW BOC CIVIL PROCEDURE
- The parties may be required to submit
briefs of legal arguments within 30 days
from receipt of order
2. If there are issues of fact relating to the
grounds relied upon for the court to refuse
enforcement
- The court shall motu proprio or on request
of either party, require the parties to submit
affidavits of their witnesses within 15-30
days from receipt of order
- The court may allow the submission of
reply affidavits within 15-30 days from
receipt of order granting the request of the
party. [Sec. 8, Rule 13]
Hearing
The court shall set the case for hearing if there
is a need to do so.
- The affidavits shall take the place of direct
testimony and shall immediately be
subject to cross-examination.
Note: The court shall give due priority to the
hearings on petitions under this rule. [Sec. 9,
Rule 13]
Adjournment/ decision of decision
The court may adjourn or defer rendering a
decision if an application for setting aside or
suspension of the award has been made with
a competent authority in the country where the
award was made.
- Upon application, the court may also
require the other party to give suitable
security. [Sec. 10, Rule 13]
Court action
The court shall recognize and enforce a
foreign arbitral award unless a ground to refuse
under the rules is fully established.
In resolving the petition in accordance with the
Special ADR Rules, the court shall either:
a. Recognize and/or enforce, or
b. Refuse to recognize and enforce the
arbitral award.
Note: The court shall not disturb the arbitral
tribunal’s determination of facts and/or
interpretation of law.
[Sec. 11, Rule 13]
Page 265 of 525
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Court decision
The decision of the court recognizing and
enforcing a foreign arbitral award is
immediately executory. [Sec. 11, Rule 13]
h. Special Civil Action for
Certiorari
When available
A party may file a special civil action for
certiorari to annul or set aside a ruling to the
RTC when:
a. The RTC makes a ruling under the Special
ADR Rules,
b. Acted without or in excess of its jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction,
and
c. There is no appeal or any plain, speedy,
and adequate remedy in the ordinary
course of law.
A special civil action for certiorari may be filed
against the following orders of the court:
a. Holding that the arbitration agreement is
inexistent, invalid, or unenforceable;
b. Reversing the arbitral tribunal’s preliminary
determination upholding its jurisdiction;
c. Denying the request to refer the dispute to
arbitration;
d. Granting or refusing an interim relief;
e. Denying the petition for the appointment of
an arbitrator;
f. Confirming, vacating, or correcting a
domestic arbitral award;
g. Suspending the proceedings to set aside
an international commercial arbitral award
and referring the case back to the arbitral
tribunal;
h. Allowing a party to enforce an international
commercial arbitral award pending appeal;
i. Adjourning or deferring a ruling on whether
to set aside, recognize, and/or enforce an
international commercial arbitral award;
j. Allowing a party to enforce a foreign arbitral
award pending appeal; and
k. Denying a petition for assistance in taking
evidence.
[Sec. 26, Rule 19]
U.P. LAW BOC CIVIL PROCEDURE
Form
The petition shall be accompanied by:
a. A certified true copy of the questioned
judgment, order, or resolution of the RTC,
b. Copies of all the pleadings and documents
relevant and pertinent thereto, and
c. A sworn certification of non-forum
shopping as provided in the ROC. [Sec. 27,
Rule 19]
Docket fees
General rule: Upon filing of the petition, the
petitioner shall pay to the COC of the CA
docketing fees and other lawful fees of P3,500
and deposit the sum of P500 for costs.
Exception: When the CA prescribes
otherwise.
• Exemption from such may be granted by
the CA upon a verified motion setting forth
valid grounds therefor.
• If the CA denies the motion, the petitioner
shall pay the docketing and other lawful
fees and deposit for costs within 15 days
from the notice of the denial. [Sec. 27,
Rule 19]
When to file
The petition must be filed with the CA within
15 days from notice of the judgment, order, or
resolution sought to be annulled or set aside.
Note: No extension of time to file the petition
shall be allowed. [Sec. 28, Rule 19]
Arbitral tribunal as a nominal party
The arbitral tribunal shall only be a nominal
party in the petition for certiorari.
• It shall not be required to submit any
pleadings or written submissions to the
court.
• It may submit pleadings or written
submissions if it serves the interest of
justice.
Note: In petitions relating to the recognition and
enforcement of a foreign arbitral tribunal, the
tribunal shall not be included even as a nominal
party. However, the tribunal may be notified of
the proceedings and furnished with court
processes. [Sec. 29, Rule 19]
Page 266 of 525
REMEDIAL LAW
Action of the court
1. Court to dismiss the petition [Sec. 30, Rule
19]
a. If it fails to comply with the form, docket
fees, and period to file under Rule
19.27 and 19.28; or
b. If upon consideration of the ground
alleged and the legal briefs submitted,
the petition does not appear to be
prima facie meritorious.
2. Court to order the respondent to comment
[Sec. 31, Rule 19]
• If the petition is sufficient in form and
substance, the CA shall issue an order
requiring the respondent to comment
on the petition within 15 days from
receipt of the copy thereof.
• The order shall be served on the
respondents in such a manner as the
court may direct, together with a copy
of the petition and any annexes
thereto.
Arbitration to continue
A petition for certiorari shall not prevent the
arbitral tribunal from continuing the
proceedings and rendering its award. Should
the arbitral tribunal continue with the
proceedings the arbitral proceedings and any
award rendered therein will be subject to the
final outcome of the pending petition for
certiorari. [Sec. 32, Rule 19]
The CA shall not, during the pendency of the
proceedings before it, prohibit or enjoin:
a. The commencement of the arbitration,
b. The constitution of the arbitral tribunal, or
c. The continuation of the arbitration. [Sec.
33, Rule 19]
Court decision
After the comment is filed or the time for filing
has expired, the court shall render judgment
granting the relief prayed for or which the
petitioner is entitled, or denying the same
within 15 days. [Sec. 34, Rule 19]
A certified copy of the judgment shall be
served upon the RTC in such a manner as the
CA may direct, and disobedience thereto shall
be punished as contempt. [Sec. 35, Rule 19]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

SPECIAL
PROCEEDINGS
REMEDIAL LAW

Page 267 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
II. SPECIAL
PROCEEDINGS
SUBJECT MATTER OF SPECIAL
PROCEEDINGS; APPLICABILITY OF
GENERAL RULES
In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as
far as practicable, applicable in special
proceedings [Sec. 2, Rule 72]
Rules in ordinary actions may be applied in
special proceedings as much as possible and
where doing so would not pose an obstacle to
said proceedings. Provisions of the ROC
requiring a certification of non-forum shopping
for complaints and initiatory pleadings, a
written explanation for non-personal service
and filing, and the payment of filing fees for
money claims against an estate would not in
any way obstruct probate proceedings, thus,
they are applicable to special proceedings
such as the settlement of the estate of a
deceased person in the present case [Sheker
v. Sheker, G.R. No. 157912 (2007)]
Action vs. Special Proceedings
An action is a formal demand of one’s right in a
court of justice in the manner prescribed by the
court or by the law. It is the method of applying
legal remedies according to definite
established rules. The term “special
proceedings” may be defined as an application
or proceeding to establish the status or right of
a party, or a particular fact. Usually, in special
proceedings, no formal pleadings are required
unless the statute expressly so provides. In
special proceedings, the remedy is granted
generally upon application or motion [Natcher
v. CA, G.R. No. 133000 (2001)]
Page 268 of 525
REMEDIAL LAW
Cases governed; civil action v. special
proceeding
a. A civil action is one by which a party
sues another for the enforcement or
protection of a right, or the prevention
or redress of a wrong. A civil action
may either be ordinary or special.
b. A special proceeding is a remedy by
which a party seeks to establish a
status, a right, or a particular fact.
[Sec. 3(a), 3(b), Rule 1]
General rule: Special proceedings are non-
adversarial in nature
Exception: May become adversarial when
there are oppositors to the petition [De Leon &
Wilwayco, Special Proceedings: Essentials for
Bench and Bar (2015)]
A special proceeding has one definite party,
who petitions or applies for a declaration of a
status, right, or particular fact, but no definite
adverse party. [Montañer v. Shari’a District
Court, G.R. No. 174975 (2009)]
A. SETTLEMENT OF
ESTATE OF DECEASED
PERSONS
MODES OF SETTLEMENT OF ESTATE
1. Extrajudicial (no will, no debts)
a. If only one heir – Affidavit of Self-
adjudication
b. If heirs are all of age or the minors are
represented, and all agree – Deed of
Extrajudicial Settlement [Sec. 1, Rule
74]
2. Judicial
a. If no will, no debts, more than one heir,
and should heirs disagree – Partition
[Rule 69]
b. Summary Settlement of Estate of
Small Value [Sec. 2, Rule 74]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

c. Petition for Letters of Administration jurisdiction to the exclusion of all other Courts.
[Rule 79] There should be no impediment to the
d. Probate of a Will [Rules 75-79] application of said Rules as they apply
i. Petition for Letters Testamentary suppletorily to the Code of Muslim Personal
or Laws, there being nothing inconsistent with the
ii. Petition for Letters of provisions of the latter statute [Musa v. Moson,
G.R. No. 95574 (1991)]
Administration with the will
annexed (if no named executor)
Testate proceedings take precedence over
intestate proceedings of the same estate
1. Which Court has Jurisdiction [Sandoval v. Santiago, G.R. No. L-1723
(1949)]
Exclusive original jurisdiction over all matters of
probate, both testate and intestate, shall lie Thus, if in the course of intestate proceedings
with: pending before a court of first instance, it is
Outside MTC if gross value of the found that the decedent had left a last will and
Metro estate does not exceed testament, proceedings for the probate of the
Manila P300,000 latter should replace the intestate proceedings
even if at that stage an administrator had
If it exceeds such value, then already been appointed, the latter being
RTC required to render final account and turn over
the estate in his possession to the executor
In Metro MTC if gross value of the subsequently appointed. This, however, is
Manila estate does not exceed understood to be without prejudice that should
P400,000 the alleged will be rejected or is disapproved,
the proceeding shall continue as an intestacy
Otherwise, RTC [Uriarte v. CFI, G.R. No. L-21938 (1970)]

[Sec. 19 and 31, B.P. 129, as amended by R.A. 2. Venue in Judicial Settlement
7691; Maloles II v. Philips, G.R. Nos. 129505
and 133359 (2000); Lim v. CA, G.R. No.
of Estate
124715 (2000)]
Inhabitant of the Court of the
Exclusive jurisdiction Philippines at the province where
Sec. 1 of Rule 73 refers to courts in the time of death (citizen decedent resided
Philippines and simply means that once a or alien) at time of death
special proceeding for the settlement of the
estate of a decedent is filed in one of such Inhabitant of a Court of any
courts, that court has exclusive jurisdiction over foreign country at province where
said estate and no other special proceedings the time of death decedent had
involving the same subject matter may be filed estate
before any other court. [Republic v. Villarama, [Sec. 1, Rule 73]
Jr., G.R. No. 117733 (1997)]
Residence
The ROC likewise provides that the Court first In the application of venue statutes and rules,
taking cognizance of the settlement of the residence rather than domicile is the significant
estate of the decedent, shall exercise factor. The word “resides” means personal,

Page 269 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
actual, or physical habitation of a person, or his
actual residence or place of abode. It does not
mean legal residence or domicile [Fule v. CA,
G.R. No. L-40502 (1976); Garcia-Quiazon v.
Belen, G.R. No. 189121 (2013); San Luis v.
San Luis, G.R. Nos. 133743 and 134029
(2007)]
Even where the statute uses the word
‘domicile’, it must be construed as meaning
residence [Festin 16, 2011 Ed.]
Note: “Jurisdiction” as used in Rule 73 means
venue.
If venue is improperly laid
General rule: Ordinary appeal
Exception: Certiorari may be resorted to in
case of impropriety of venue (due to residence
or location of estate) appears on the record.
[Sec. 1, Rule 73]
3. Extent of Jurisdiction of
Probate Court
The probate jurisdiction relates only to matters
having to do with the settlement of the estate
and probate of wills of deceased persons, and
the appointment and removal of administrators,
executors, guardians, and trustees [Ramos v.
CA, G.R. No. (1989)]
General rule: A probate court cannot
adjudicate or determine title to properties
claimed to be a part of the estate and which are
claimed to belong to outside parties [Ignacio v.
Reyes, G.R. 213192 (2017)]
Exceptions:
a. In a provisional manner to determine
whether said property should be included
or excluded in the inventory, without
prejudice to final determination of title in a
separate action [Cuizon v. Ramolete, G.R.
No. L-51291 (1984)]
Page 270 of 525
REMEDIAL LAW
b. With consent of all the parties, without
prejudice to the rights of third persons
[Trinidad v. CA, G.R. No. 75579 (1991)]
c. If the question is one of collation or
advancement [Coca v. Borromeo, G.R. No.
L-27082 (1978)]
d. When the estate consists of only one
property [Portugal v. Portugal-Beltran, G.R.
No. 155555 (2005)]
The court first taking cognizance of the
settlement of estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts [Sec. 1, Rule 73]
Jurisdictional facts
Jurisdictional facts refer to the fact of death of
the decedent, his residence at the time of his
death in the province where the court is sitting,
or if he is an inhabitant of a foreign country, the
estate he left in such province [Palaganas v.
Palaganas, G.R. No. 169144 (2011)]
Where estate is settled upon dissolution of
marriage
Sec. 2, Rule 73 provides that when the
marriage is dissolved by the death of the
husband or the wife, the community property
shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the
testate or the intestate proceedings of the
deceased spouse, and if both spouses have
died, the conjugal partnership shall be
liquidated in the testate or intestate
proceedings of either. In these settlement
proceedings, the probate court has the
authority to determine if the property is
conjugal or community in nature, for purposes
of liquidation [Agtarap v. Agtarap, G.R. Nos.
177099 and 177192 (2011)]
Presumption of death
Sec. 4, Rule 73 is merely one of evidence
which permits the court to presume that a
person is dead after the fact that such person
had been unheard from for the periods fixed in
the Civil Code. This presumption may arise and
U.P. LAW BOC SPECIAL PROCEEDINGS
be invoked and made in a case, either in an
action or in a special proceeding, which is tried
or heard by, and submitted for decision to, a
competent court. Independently of such an
action or special proceeding, the presumption
of death cannot be invoked, nor can it be made
the subject of an action or special proceeding
[Valdez v. People, G.R. No. 180863 (2009),
citing In re: Szatraw, G.R. No. L-1780 (1948)]
4. Powers and Duties of
Probate Court
It is the duty of courts of probate jurisdiction to
guard jealously the estates of the deceased
person by intervening in the administration
thereof in order to remedy or repair any injury
that may be done thereto [Dariano v.
Fernandez Fidalgo, G.R. No. L-4918 (1909)]
Ancillary powers of a probate court
a. Issue warrants and processes to compel
attendance of a witness and to carry into
effect their orders and judgments
b. Issue warrant for apprehension and
imprisonment of a person who refuses to
perform an order or judgment
c. All other powers granted to them by law
[Sec. 3, Rule 73].
B.SUMMARY
SETTLEMENT OF
ESTATES
General rule: The estate of the decedent
should be judicially administered through an
administrator or executor.
Exceptions:
Law allows heirs to resort to
1. Extrajudicial settlement of estate (decedent
died intestate and left no debts) [Sec. 1,
Rule 74]
Page 271 of 525
REMEDIAL LAW
2. Summary settlement of estate (for estates
of small value, when gross estate does not
exceed P10,000) [Sec. 2, Rule 74]
Recourse to an administration proceeding
even if the estate has no debts is sanctioned
only if the heirs have good reasons for not
resorting to an action for partition. Where
partition is possible, either in or out of court, the
estate should not be burdened with an
a administration proceeding without good and
compelling reasons [Sps. Villafria v. Plazo,
G.R. No. 187524 (2015)]
1. Extrajudicial Settlement by
Agreement Between Heirs;
When Allowed
Requisites
a. Decedent died intestate
b. Left no debts
c. Heirs are all of age, or minors are
represented by their legal or judicial
representatives, and
d. ALL heirs agree [Sec. 1, Rule 74]
Modes
a. If sole heir – Affidavit of Self-adjudication
(of the whole estate)
b. If more than one heir –
1. Deed of Extrajudicial Settlement is
resorted to if there is no disagreement
among the heirs
2. If there is a disagreement, then they
may resort to an action for partition
(judicial)
Note: Both the Affidavit and the Deed are public
instruments.
[Sec. 1, Rule 74]
The general rule is that when a person dies
intestate, or, if testate, failed to name an
executor in his will or the executor so named is
incompetent, or refuses the trust, or fails to
furnish the bond required by the Rules, then the
decedent’s estate shall be judicially
U.P. LAW BOC SPECIAL PROCEEDINGS
administered and the competent court shall
appoint a qualified administrator in the order
established in Sec. 6, Rule 78. An exception to
this rule is found in Sec. 1, Rule 74 wherein the
heirs of a decedent, who left no will and no
debts due from his estate, may divide the
estate either extrajudicially or in an ordinary
action for partition without submitting the same
for judicial administration nor applying for the
appointment of an administrator by the court
[Spouses Villafria v. Plazo, G.R. No. 187524
(2015)]
Where, in the extrajudicial settlement of the
estate, heirs were excluded and minor heirs
were not properly represented, the settlement
was not valid and binding upon them [Neri v.
Heirs of Spouses Yusop, G.R. No. 194366
(2012)]
Requirement of public instrument
No law requires partition among heirs to be in
writing and be registered in order to be valid.
The requirement in Sec. 1, Rule 74 that a
partition be put in a public document and
registered, has for its purpose the protection of
creditors and the heirs themselves against
tardy claims. The requirement of Art. 1358 of
the Civil Code is only for convenience, non-
compliance with which does not affect the
validity or enforceability of the acts of the
parties as among themselves [Kilario v. CA,
G.R. No. 134329 (2000)]
Note: The last sentence of the cited doctrine
from Kilario implies that non-compliance with
Sec. 1, Rule 74 will be binding only as to the
parties to the partition but not to non-parties
(e.g. creditors who did not know of the
partition).
Procedure
Division of estate in a public instrument or
affidavit of adjudication
↓ a full period of 2 years after such distribution.
Page 272 of 525
REMEDIAL LAW
Filing of public instrument/affidavit with the
proper Registry of Deeds and posting of a
bond if the estate has personal property
(bond equivalent to amount of personal
property)
↓
Publication of notice of the fact of
extrajudicial settlement once a week for 3
consecutive weeks in a newspaper of
general circulation in the province, and after
such other notice to interested persons as
the court may direct
The procedure outlined in Sec. 1 of Rule 74 is
an ex parte proceeding. The rule plainly states,
however, that persons who do not participate
or had no notice of an extrajudicial settlement
will not be bound thereby.
The requirement of publication is geared for the
protection of creditors and was never intended
to deprive heirs of their lawful participation in
the decedent's estate [Benatiro v. Heirs of
Cuyos, G.R. No. 161220 (2008), citing Cua v.
Vargas, G.R. No. 156536 (2006)]
Validity of compromise agreement
Such is valid, binding upon the parties as
individuals, upon the perfection of the contract,
even without previous authority of the court to
enter into such agreement [Borja v. Vda. De
Borja, G.R. No. L-28040 (1972)]
2. Two-Year Prescriptive Period
Heirs or other persons deprived of lawful
participation in the estate may compel judicial
settlement of estate within 2 years from
settlement and distribution [Sec. 1, Rule 74]
A lien shall be constituted on the real property
of the estate and together with the bond, it shall
be liable to creditors, heirs or other persons for
U.P. LAW BOC SPECIAL PROCEEDINGS
Such lien will not be cancelled before the lapse
of two years even if a distributee offers to post
bond to answer for contingent claims [Rebong
v. Ibanez, G.R. No. L-1578 (1947)]
Disputable presumption of no debt
It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of
administration within two (2) years after the
death of the decedent [Sec. 1, Rule 74]
3. Affidavit of Self-Adjudication
by Sole Heir
An Affidavit of Self-Adjudication is only proper
when the affiant is the sole heir of the
decedent. This is clear from the second
sentence of Sec. 1, Rule 74 [Rebusquillo v.
Spouses Galvez, G.R. No. 204029 (2014)]
4. Summary Settlement of
Estates of Small Value; When
Allowed
When allowed
Whenever the gross value of estate of the
decedent does not exceed P10,000
Procedural requirements
a. Petition by an interested person alleging
fact that estate does exceed P10,000
b. Notice
1. Published once a week for 3
consecutive weeks
2. In a newspaper of general circulation in
the province
c. Other notice to interested persons as the
court may direct
d. Hearing
1. Held not less than 1 month nor more
than 3 months
2. Counted from the date of the last
publication of notice [Sec. 2, Rule 74]
e. Bond in an amount to be fixed by court if
personal property is to be distributed [Sec.
3, Rule 74]
Page 273 of 525
REMEDIAL LAW
Upon fulfillment of the requisites, the court
may proceed summarily without the
appointment of an executor/administrator and
without delay –
a. to grant, if proper, allowance of the will, if
there be any
b. to determine who are persons legally
entitled to participate in the estate, and
c. to apportion and divide the estate among
them after the payment of such debts of the
estate
The persons legally entitled to participate in the
estate,
a. in their own right, if of lawful age, or
b. if otherwise, by their guardians or trustees
legally appointed and qualified,
will be entitled to receive and enter into
possession of the portions of the estate so
awarded to them respectively [Sec. 2, Rule 74]
Procedure
Death of the decedent
↓
Petition for summary settlement with
allegation that the gross value of the estate
does not exceed P10,000
↓
Publication of notice once a week for 3
consecutive weeks in a newspaper of
general circulation in the province
↓
Giving of such other notice to interested
persons as the court may direct
↓
Hearing held not less than 1 month nor more
than 3 months from the date of the last
publication of notice
↓
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Court to proceed summarily, without Bond filed with the Bond filed with and
appointing an executor/administrator, and to Register of Deeds amount to be
a. Grant allowance of will, if any in an amount equal determined by the
(2) Determine persons entitled to estate to the value of the court
(3) Pay debts of estate which are due personal property
of the estate

Where the contention that the decedent’s

↓
estate is less than P5,000 rests on a
Filing of bond when required by the court controversial basis and no evidence was
[Sec. 3, Rule 74] adduced to ascertain the actual value of the
↓ estate, the probate court is not precluded from
proceeding with the intestate proceedings
Partition of estate [Intestate Estate of Sebial v. Sebial, G.R. No.
L-23419 (1975)]

Extrajudicial Summary 5. Remedies of Aggrieved

settlement settlement Parties after Extrajudicial
Settlement of Estate
Court intervention Summary judicial
not required adjudication needed
Within reglementary period of TWO YEARS
Decedent left no will Decedent may or a. Claim on the bond for personal properties
(allowed only in may not have left a [Sec. 4, Rule 74]
intestate will (died b. Claim on lien on real property,
succession) intestate/testate) notwithstanding any transfers of real
property that may have been made [Sec. 4,
Decedent left no Decedent may have Rule 74]
debts left debts c. Judicial settlement of estate [Sec. 4, Rule
74]
Heirs are all of age No such requirement d. Action to annul settlement (fraud [4 years]
or minors are or implied trust [10 years])
represented
When applicable
Instituted only at the May be instituted by
If it shall appear at any time within 2 years after
instance and by any interested party
the settlement and distribution of an estate that
agreement of all even by a creditor
an heir or other person
heirs without consent of
a. has been unduly deprived of his lawful
the heirs
participation in the estate
Value of the estate Gross value of the 1. He shall have a right to compel the
is immaterial estate must not settlement of the estate in the courts for
exceed P10,000 the purpose of satisfying such lawful
participation.
2. If annulment on the ground of fraud, an
action for reconveyance based on an
implied or constructive trust must be
filed within 10 years from accrual of the

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U.P. LAW BOC SPECIAL PROCEEDINGS
cause of action [Amerol v.
Bagumbaran, G.R. No. L-33261
(1987); Zuniga-Santos v. Santos-Gran,
G.R. No. 197380 (2014)]
b. has been unduly deprived of his lawful
participation payable in money, the court
having jurisdiction of the estate may, by
order for that purpose, after hearing
c. settle the amount of such debts or
lawful participation, and
d. may issue execution against the bond
or against the real estate belonging to
the deceased, or both [Sec. 4, Rule 74]
When not applicable
a. To persons who have participated or taken
part or had notice of the extrajudicial
partition
b. When the provisions of Sec. 1 of Rule 74
have been strictly complied with (all
persons or heirs of the decedent have
taken part in the extrajudicial settlement or
are represented by themselves or through
guardians)
The buyer of real property the title of which
contains an annotation pursuant to Sec. 4,
Rule 74 cannot be considered innocent
purchasers for value [David v. Malay, G.R. No.
132644 (1999)]. The foregoing rule clearly
covers transfers of real property to any person,
as long as the deprived heir or creditor
vindicates his rights within two years from the
date of the settlement and distribution of
estate. The effects of this provision are not
limited to the heirs or original distributees of the
estate properties, but shall affect any
transferee of the properties [Spouses Domingo
v. Roces, G.R. No. 147468 (2003)]
Additional period for claim of minor or
incapacitated person
If on the date of the expiration of the period of
2 years after the settlement or distribution of an
estate, the person authorized to file a claim is
a. a minor or mentally incapacitated
b. in prison, or
Page 275 of 525
REMEDIAL LAW
c. outside Philippines,
he may present his claim within 1 year after
such disability is removed [Sec. 5, Rule 74].
Within the reglementary period, the judge of a
probate court has the power to reopen estate
proceedings even after the issuance of an
order approving a project of partition and
closing the proceedings. Rather than requiring
an allegedly preterited party to air his
grievances in a separate and independent
proceeding, he may, within the reglementary
period, claim his relief sought in the same case
by reopening the same even after a project of
partition and final accounting had been
approved. [Jerez v. Nietes, G.R. No. L-26876
(1969)]
Even if the original motion did not afford legal
standing to the three legitimate minor children,
under Sec. 5, Rule 74, such motion may be
lodged with the court within one year after the
minors have reached majority [In Re: Francisco
v. Carreon, G.R. No. L-5033 (1954)]
OTHER REMEDIES
a. Action for reconveyance of real property –
based on an implied trust, reckoned 10
years from issuance of title [Marquez v. CA,
G.R. No. 125715 (1998)]
b. Rescission – in case of preterition of
compulsory heir in partition tainted with bad
faith [Art. 1104, NCC]
c. Petition for relief – on ground of fraud,
accident, mistake, excusable negligence.
Within 60 days after petitioner learns of
judgment or final order, or other
proceedings to be set aside, and not more
than 6 months after such judgment or order
is entered or taken [Rule 38]
U.P. LAW BOC SPECIAL PROCEEDINGS
C. PRODUCTION AND
PROBATE OF WILL
1. Nature of Probate
Proceedings
a. In rem proceeding
b. Mandatory – no will shall pass either real or
personal property unless it is proved and
allowed in the proper court [Sec. 1, Rule
75]
c. Conclusive as to its due execution, but
subject to the right of appeal [Sec. 1, Rule
75]
d. Right to ask for probate does not prescribe
[Guevara v. Guevara, G.R. No. L-5405
(1956)]
e. Doctrine of estoppel does not apply
[Fernandez v. Dimagiba, G.R. No. L-
23638 (1967); Testate Estate of Abada v.
Abaja, G.R. No. 147145 (2005)]
Before any will can have force or validity, it
must be probated. Until admitted to probate, a
will has no effect whatsoever and no right can
be claimed thereunder [Sps. Pascual v. CA,
G.R. No. 115925 (2003)]
The presentation of the will for probate is
mandatory and is a matter of public policy.
Unless the will is probated, the right of a person
to dispose of his property may be rendered
nugatory [Maninang v. CA, G.R. No. L-57848
(1982); Dy Yieng Seangio, et al. v. Reyes, G.R.
Nos. 147371-72 (2006)]
Duty of custodian and executor to deliver
the will
Within 20 days after he knows of the testator’s
death, the person who has custody of the will
shall deliver the will to the court having
jurisdiction, or to the executor named in the will
[Sec. 2, Rule 75]
Page 276 of 525
REMEDIAL LAW
In seeking for the production of the original
holographic will, the remedy of mandamus
cannot be availed of because there lies another
plain, speedy and adequate remedy in the
ordinary course of law. The ROC provides for
the institution of probate proceedings for the
allowance of the will, whether it be in the
possession of the petitioner or not (Sec. 1, Rule
76). [Uy Kiao Eng v. Lee, G.R. No.176831
(2010)]
The person named executor shall present the
will to the court having jurisdiction, unless the
will has reached it in any other manner, and
shall signify in writing his acceptance/refusal of
the trust
a. within 20 days after he knows of the death
of the testator, or
b. within 20 days after he knows that he is
named executor if he obtained such
knowledge after the testator’s death [Sec.
3, Rule 75].
Person retaining the will may be committed to
prison until the will is delivered if:
a. He has custody of the will
b. There is a court order directing him to
deliver the will, and
c. He neglects without reasonable cause to
deliver the same [Sec. 5, Rule 75].
So much is the concern of the law for the
indispensability of probating a will that Sec. 4,
Rule 75 penalizes with a fine not exceeding
P2,000 the failure of the custodian of a will to
deliver the same to the court or to the executor
named therein, as also the failure of the
executor to present the will to the proper court
for probate; and under Section of the same
rule, such custodian may be detained by order
of the court until he makes the required delivery
of the will [Vda. De Precilla v. Narciso, G.R. No.
L-27200 (1972); Uy Kiao Eng, G.R. No.176831
(2010)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

2. Who May Petition For

Periods to give notice
Probate; Persons Entitled To a. Personal service – At least 10 days before
Notice hearing
b. By mail – at least 20 days before hearing
The executor, devisee, or legatee named in the [Sec. 4, Rule 76]
will, or any other person interested in the
estate, may, at any time after the death of the
testator, petition the court having jurisdiction to ALLOWANCE OR
D.
have the will allowed, whether the same be in DISALLOWANCE OF WILL
his possession or not, or is lost or destroyed
[Sections 1 and 2, Rule 76; Palaganas v.
Probate or allowance of wills is the act of
Palaganas, G.R. No. 169144 (2011)]
proving in court a document purporting to be
the last will and testament of the deceased for
A will may be probated
the purpose of its official recognition,
a. Before the testator’s death – By testator
registration and carrying out its provision in so
himself (ante-mortem probate)
far as they are in accordance with law [Festin
b. After the testator’s death – By executor,
40, 2011 Ed.]
devisee, or legatee named in the will or any
person interested in the estate [Sec. 1,
General rule: A probate proceeding only looks
Rule 76]
at extrinsic validity

Meaning of interest in estate

Exception: The probate of a will might become
An interested party is one who would be
an idle ceremony if on its face it appears to be
benefited by the estate such as an heir or one
intrinsically void. Where practical
who has a claim against the estate like a
considerations demand that the intrinsic
creditor [Sumilang v. Ramagosa, G.R. No. L-
validity of the will be passed upon, even before
23135 (1967)]
it is probated, the court should meet the issue
[Nepomuceno v. CA, G.R. No. L-62952 (1985)]
Persons entitled to notice
a. Known heirs, legatees and devisees
Extrinsic validity - due execution of the will
resident in Philippines
which means:
b. Named executor if he is not petitioner, and
a. That the will was executed strictly in
c. Named co-executors not petitioning if their
accordance with the formalities required by
place of residence is known
law
[Sec. 4, Rule 76]
b. That the testator was of sound and
disposing mind when the will was executed
Note: If the testator himself asks for probate of
c. That there was no vitiation of consent
his own will, notice shall be sent only to
through duress, fear or threats
compulsory heirs [Sec. 4, Rule 76; Nittscher v.
d. That it was not procured by undue and
Nittscher, G.R. No. 160530 (2007)]
improper pressure or influence on part of
beneficiary or other person for his benefit
Notice is required to be given to known heirs,
e. That the testator’s signature is genuine (not
legatees, and devisees of the testator. In the
procured through fraud nor trick), and that
will, the respondent was instituted as the sole
the testator intended that what he executed
heir of the decedent. [Alaban v. CA, G.R. No.
was his last will and testament)
156021 (2005)]
[Sec. 9, Rule 76]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

The very existence of the will is in itself prima decide it. Thus, parties not mentioned in the
facie proof that the supposed testatrix has petition for probate eventually became parties
willed that her estate be distributed in the as a consequence of publication [Alaban v. CA,
manner provided for in the will and it is G.R. No. 156021 (2005)]
incumbent upon the state that, if legally
tenable, such desire be given full effect The notice must be published 3 weeks
independent of the attitude of the parties successively, previous to the time set for
affected thereby. What is decisive is that the hearing, in a newspaper of general circulation
court is convinced by evidence before it, not in the province [Sec. 3, Rule 76]
necessarily from the attesting witnesses,
although they must testify, that that will was or EVIDENCE REQUIRED IN SUPPORT OF A
was not duly executed in the manner required WILL
by law [Baltazar v. Laxa, G.R. No. 174489
(2012)] Uncontested will
a. Notarial Will – Testimony of at least one
1. Contents of petition for subscribing witness that the will was
executed as required by law [Sec. 5, Rule
allowance of will
76]
1. If all subscribing witnesses reside
a. Jurisdictional facts – refer to the fact of
outside of the province but their
death of the decedent, his residence at the
deposition can be taken elsewhere, the
time of his death in the province where the
court may on motion order that it be
court is sitting, or if he is an inhabitant of a
taken and may authorize making of
foreign country, the estate he left in such
photocopy of the will to be presented to
province [Palaganas v. Palaganas, G.R.
witness [Sec. 7, Rule 76]
No. 169144 (2011)]
2. If all subscribing witnesses are dead,
b. Names, ages, and residences of the heirs,
insane or do not reside in Philippines,
legatees, and devisees of the testator or
other witnesses not subscribing may
decedent
be presented [Sec. 8, Rule 76]
c. Probable value and character of the
b. Holographic wills
property of the estate
1. At least one witness who knows the
d. Name of the person for whom letters are
handwriting and signature of the
prayed
testator who explicitly declares that the
e. If the will has not been delivered to the
will and signature are in the
court, the name of the person having
handwriting of the testator, or
custody of it
2. In the absence of such competent
[Sec. 2, Rule 76]
witness and the court deems it
necessary, expert testimony may be
Effects of defect in petition
resorted to
No defect in petition shall render void the
[Sec. 5, Rule 76]
allowance of will, or the issuance of letters
testamentary or of administration with the will
If the testator himself petitions for probate of
annexed [Sec. 2, Rule 76]
holographic will and it is not contested. The fact
that he affirms that the holographic will and the
Jurisdiction, how acquired
signature are in his own handwriting shall be
Publication of the notice of hearing brings in the
sufficient evidence of genuineness and due
whole world as a party in the case for probate
execution thereof [Sec. 12, Rule 76]
and vests the court with jurisdiction to hear and

Page 278 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
It is not mandatory that witnesses be
presented first before expert testimony maybe
resorted to unlike in notarial wills wherein
attesting witnesses must first be presented
[Azaola v. Singson, G.R. No. L-14003 (1960)]
Contested Will
Anyone appearing to contest the will must state
in writing his grounds for opposing its
allowance and serve a copy to petitioner and
other interested parties [Sec. 10, Rule 76]
a. Notarial Will
1. All subscribing witness and the notary
if present in Philippines and not insane
must be presented
2. If dead, insane or absent – said fact
must be satisfactorily shown in court
3. If present in Philippines but outside the
province – deposition must be taken
[Sec. 11, Rule 76; Baltazar v. Laxa, G.R.
No. 174489 (2012)]
Can testimony of the subscribing witnesses be
dispensed with in a contested will? YES. If any
or all of the subscribing witness:
1. testify against the due execution of the will,
or
2. do not remember having attested to it, or
3. are otherwise of doubtful credibility
The court may allow the will if it is satisfied from
testimony of other witnesses and all evidence
presented that the will was executed and
attested in the manner required by law [Sec.11,
Rule 76]
a. Holographic wills
1. At least three witness who knows the
handwriting and signature of the
testator who explicitly declares that the
will and signature are in the
handwriting of the testator
2. In the absence of such competent
witness and the court deems it
necessary, expert testimony may be
resorted to [Sec. 11, Rule 76]
Page 279 of 525
REMEDIAL LAW
If the testator himself petitions for probate of
holographic will and it is contested, the
contestant has the burden of disproving
genuineness. Testator may present additional
proof to rebut contestant’s evidence [Sec. 12,
Rule 76]
Lost Will
a. Notarial Wills – even if lost may be proved
through the following facts
1. Execution and validity of the will
2. Its existence at the time of testator’s
death or that it has been fraudulently or
accidentally destroyed during testator’s
lifetime without his knowledge, and
3. Provisions of the will clearly and
distinctly proved by at least two
credible witnesses
If lost will is proved, its provisions must be
distinctly stated and certified by the judge,
under seal of court, and the certificate must be
filed and recorded as other wills are filed and
recorded [Sec. 6, Rule 76]
b. Holographic Wills
General rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will
Exception: A photostatic copy or xerox of the
holographic will may be allowed because
comparison can be made with the standard
writings of the testator [Rodelas v. Aranza,
G.R. No. L-58509 (1982)]
2. Grounds for Disallowing a
Will
The will shall be disallowed if:
a. Not executed and attested as required by
law
U.P. LAW BOC SPECIAL PROCEEDINGS
b. Testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
c. Executed under duress, or the influence of
fear, or threats
d. Procured by undue and improper pressure
and influence, on the part of the
beneficiary, or of some other person for his
benefit, or
e. Signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto [Sec. 9, Rule 76
cf. Art. 839, CC]
The list is exclusive. Thus, in a petition to admit
a holographic will to probate the only issue to
be resolved are: (1) whether the instrument
submitted is, indeed, the decedent’s last will
and testament; (2) whether said will was
executed in accordance with the formalities
prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the
time the will was executed; and (4) whether the
execution of the will and its signing were the
voluntary acts of the descendants [Spouses
Ajero v. CA, G.R. No. 106720 (1994)]
3. Reprobate; Requisites before
Will Proved Outside Allowed
in the Philippines; Effects of
Probate
Effect of probate of will
Decree of probate is conclusive as to its due
execution, subject to the right of appeal [Sec.
1, Rule 75]
If a decision admitting a will to probate
becomes final, there can no longer be any
challenge to its due execution and authenticity.
Thus, a criminal action will not lie against an
alleged forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction [Mercado v. Santos, G.R. No.
45629 (1938)]
Page 280 of 525
REMEDIAL LAW
Order allowing or disallowing a will may be the
subject of an appeal [Sec. 1, Rule 109]
Reprobate
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper court
in Philippines [Sec. 1, Rule 77]
Requisites before a Will Proved Abroad
Would be Allowed in Philippines
a. Duly authenticated copy of will
b. Duly authenticated order or decree of its
allowance in foreign country, and
c. Petition for allowance in Philippines filed by
the executor or other person interested
[Sec. 2, Rule 77]
The court having jurisdiction shall fix a time and
place for the hearing and cause notice thereof
to be given as in case of an original will
presented for allowance [Sec. 2, Rule 77]
Evidence necessary for reprobate
a. due execution of the will in accordance with
the foreign laws
b. testator has his domicile in the foreign
country and not in Philippines
c. will has been admitted to probate in such
country
d. fact that the foreign tribunal is a probate
court, and
e. laws of a foreign country on procedure and
allowance of wills
[Vda. De Perez v. Tolete, G.R. No. 76714
(1994)]
Our laws do not prohibit the probate of wills
executed by foreigners abroad although the
same have not as yet been probated and
allowed in the countries of their execution. A
foreign will can be given legal effect in our
jurisdiction. [Palaganas v. Palaganas, G.R. No.
169144 (2011)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Effect of Reprobate
E. LETTERS
a. Will shall have the same effect as if
originally proved and allowed in Philippine TESTAMENTARY AND OF
court [Sec. 3, Rule 77] ADMINISTRATION
b. The grant of letters testamentary or of
administration shall extend to all estate of 1. When and to Whom Letters of
the testator in Philippines Administration are Granted
c. After payment of just debts and expenses
of administration, estate shall be disposed Who may administer the estate of a deceased
of according to the will person:
d. Residue disposed of in accordance with a. Executor
law [Sec. 4, Rule 77] b. Administrator

Questions as to title to property Executor Administrator

General rule: The probate court, whether in a Appointed when
testate or intestate proceeding, can only pass a. Testator did not
upon questions of title provisionally. The appoint an
executor
reason is that the probate court’s limited
Person named b. The appointment
jurisdiction and the principle that questions of was refused
expressly by
title or ownership, which result in exclusion or c. The executor is
deceased person in
inclusion from the inventory of the property, incompetent to
his will to administer,
can only be settled in a separate action [Aranas serve
settle, and liquidate
v. Mercado, G.R. No. 156407 (2014), citing De d. The executor
estate, and
Leon v. CA, G.R. 128781 (2002); Jimenez v. failed to file a
subsequently bond when
CA, G.R. No. 75773 (1990); Agtarap v. appointed by court required
Agtarap, G.R. Nos. 177099 and 177192
e. The will was
(2011)] disallowed
f. No will (intestate
Exception: If the interested parties are all succession)
heirs, or the question is one of collation or Has duty to present
advancement, or the parties consent to the the will to court within
assumption of jurisdiction by the probate court 20 days after (a) he
and the rights of third parties are not impaired, learns of the death of
the probate court is competent to decide the testator or (b) after
question of ownership [Cora v. Vda. De he knew he was
Pangilinan, G.R. Nos. L-27082 and L-29545 appointed as
No such duty
(1978); Agtarap v. Agtarap, G.R. Nos. 177099 executor (if he
obtained such
and 177192 (2011)]
knowledge after
death of testator),
unless will has
reached the court in
any other manner
The testator may
provide that he may Required to file bond
serve without a bond unless exempted by
but the court shall law
direct him to post a

Page 281 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

bond conditioned [Republic v. Marcos II, G.R. Nos. 130371 and

only to pay debts 130855 (2009)]

The court may The courts may delve into the question of the
require a further bond suitableness and fitness of an administrator,
for sufficient cause notwithstanding the fact that both are
Compensation compulsory heirs, and may in fact appoint one
provided in the will over the other even if both possess equal
controls, unless status in the order of preference [Marcelo
renounced First part of Sec. 7, Investment and Management Corp. v. Marcelo,
Rule 85 applies Jr., G.R. No. 209651 (2014)]
If no provision for
compensation, Sec. 7 Other grounds in jurisprudence
of Rule 85 applies a. In this jurisdiction, one is considered to be
unsuitable for appointment as
administrator when he has an adverse
Any competent person may serve as an
interest of some kind or hostility to those
executor or administrator.
immediately interested in the estate. [Lim v.
Diaz-Millarez, G.R. No. L-17633 (1966)]
Executor of an executor shall not, as such,
b. The administrator should be indifferent
administer the estate of first testator [Sec. 2,
between the estate and claimants of the
Rule 78]
property, except to preserve it for due
administration, and he should be removed
Married woman may serve as executor or
when his interests conflict with such right
administrator and a marriage of a single
and duty. [Medina v. CA, G.R. No. L-34760
woman shall not affect her authority so to serve
(1973)]
under a previous appointment [Sec. 3, Rule 78]
The regular administrator is charged with the
Who are incompetent to serve as executor
task of accomplishing and terminating the
or administrator
administration of the estate with the utmost
a. Minor
reasonable dispatch, with a view to an early
b. Non-resident
distribution of the net estate among the heirs
c. One who, in the opinion of the court, is unfit
and persons entitled thereto. [Medina v. CA,
to exercise the duties of the trust by reason
G.R. No. L-34760 (1973)]
of
1. Drunkenness
When are letters testamentary or of
2. Improvidence
administration granted
3. Want of understanding
Letters testamentary – an authority issued to
4. Want of integrity, or
an executor named in the will to administer the
5. Conviction of an offense involving
estate. It is issued once the will has been
moral turpitude
proved and allowed, and if the executor named
[Sec. 1, Rule 78]
is competent, accepts the trust and gives bond
[Sec. 4, Rule 78]
To be disqualified to serve as executor or
administrator under Sec. 1(e), Rule 78, it must
Letters of administration – authority issued
be shown that the conviction must be for an
by court to a competent person to administer
offense involving moral turpitude. Thus, one’s
the estate if
failure to file a return as required by the NIRC
a. No executor is named in will
cannot be a basis for disqualification, it not
b. Person dies intestate [Sec. 6, Rule 78]
being a crime involving moral turpitude
c. The will is void or is not admitted to probate

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U.P. LAW BOC SPECIAL PROCEEDINGS
Letters of administration with the will
annexed - authority issued by court to a
competent person to administer the estate if
the executor named in the will:
a. refuses to accept the trust
b. is incompetent
c. fails to give the required bond [Sec. 6, Rule
78]
2. Order of Preference
Order of preference in the grant of letters of
administration
a. Surviving spouse, or next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve
b. If those enumerated above be incompetent
or unwilling, or if the husband or widow, or
next of kin, neglects for 30 days after the
death of the person to apply for
administration or to request that
administration be granted to some other
person, one or more of the principal
creditors, if competent and willing to serve
c. If there is no such creditor, such other
person as the court may select
[Sec. 6, Rule 78]
Next of kin are those entitled by law to receive
the decedent’s properties [Ventura v. Ventura,
G.R. No. L-26306 (1988)]
The probate court may address the issue of
filiation especially when the applicant for letters
of administration claims to be the decedent’s
next of kin or heir [Angeles v. Maglaya, G.R.
No. 153798 (2005)]
The order of preference in the appointment of
a regular administrator as provided in the
afore-quoted provision does not apply to the
selection of a special administrator. The
preference under Section 6, Rule 78 for the
next of kin refers to the appointment of a
regular administrator, and not of a special
administrator, as the appointment of the latter
lies entirely in the discretion of the court, and is
not appealable [Tan v. Gedorio, G.R. No.
166520 (2008)]
Page 283 of 525
REMEDIAL LAW
Reason for order of preference
Those who would reap the benefit of a wise,
speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest and
most influential motive to administer the estate
correctly [Gonzalez v. Aguinaldo, et al., G.R.
No. 74769 (1990)]
In the appointment of the administrator of the
estate of the deceased person, the principal
consideration reckoned with is the interest in
said estate of the one to be appointed as
administrator. [Suntay III v. Cojuangco-Suntay,
G.R. No. 183053 (2012)]
Mere failure to apply for letters of
administration does not remove preference [1
ALR 1247]
Note: The order of preference is not absolute
for it depends on the attendant facts and
circumstances of each case. The selection of
an administrator lies in the sound discretion of
the trial court. [Aguinaldo-Suntay v.
Cojuangco-Suntay, G.R. No.183053 (2010)]
30-day period may be waived
Just as the order of preference is not absolute
and may be disregarded for valid cause, so
may the 30-day period be likewise waived
under the permissive tone in paragraph (b) of
said rule which merely provides that said
letters, as an alternative, “may be granted to
one or more of the principal creditors” [Gabriel
v. CA, G.R. No. 101512 (1992)]
Co-administrators may be appointed [Matute v.
CA, G.R. No. L-26751 (1969)] In the
appointment of a co-administrator, the size of,
and benefits to the estate may be considered
by the court. Thus, where the estate is large or,
from any cause, an intricate or perplexing one
to settle, the appointment of co-administrators
may be sanctioned by law [Uy v. CA, G.R. No.
167979 (2006)]
U.P. LAW BOC SPECIAL PROCEEDINGS
3. Opposition to Issuance of
Letters Testamentary;
Simultaneous Filing of
Petition for Administration
Who may oppose
Any person interested in a will [Sec. 1, Rule 79]
Meaning of interested person
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; thus, interest
must be material and direct, not merely indirect
or contingent. [Maloles II v. Philips, G.R Nos.
129505 and 133359 (2000); Saguinsin v.
Lindayag, G.R. No. L-17759 (1962)]
A legal heir who has validly assigned his
hereditary rights before the institution of
settlement proceedings is no longer an
“interested party.” He has no more interest in
the decedent’s estate. [Duran v. Duran, G.R.
No. L-23372 (1967)]
Grounds
a. Incompetency of the person/s for whom
letters are prayed, or
b. Contestant’s own right to the administration
(ex. preferential right under Sec. 6, Rule
78)
[Sec. 4, Rule 79]
Form required
Grounds for opposition must be stated in
writing; court shall then hear and pass upon
sufficiency of such grounds. [Sec. 1, Rule 79]
Contents of petition for letters of
administration
a. Jurisdictional facts
1. Death of testator
2. Residence at time of death in the
province where probate court is sitting,
or
3. If he is an inhabitant of foreign country,
his having left his estate in such
province [Diez v. Serra, G.R. No. L-
27650 (1927)]
b. Names, ages and residences of heirs, and
names and residences of creditors
Page 284 of 525
REMEDIAL LAW
c. Probable value and character of the estate,
and
d. Name of person for whom letters is prayed
[Sec. 2, Rule 79; Palaganas v. Palaganas,
G.R. No. 169144 (2011)]
While recitals in the death certificate of the
decedent can be considered proof of a
decedent’s residence at the time of his death,
the contents thereof, however, are not binding
on the courts. [Garcia-Quiazon v. Belen, G.R.
No. 189121 (2013)]
Defect in petition would not render void the
issuance of letters of administration [Sec. 2,
Rule 79]
Publication and notice
Notice of hearing must be given in the manner
provided in Sec. 3 and 4, Rule 76, by:
a. Publication, and
b. Personal service or by mail
to the known heirs and creditors of the
decedent, and to any other persons believed to
have an interest in the estate
[Sec. 3, Rule 79]
Where no notice as required by Sec. 3, Rule 79
has been given to persons believed to have an
interest in the estate of the deceased person,
the proceedings for the settlement of the estate
is void and should be annulled. The
requirement as to notice is essential to the
validity of the proceeding in order that no
person may be deprived of his right to property
without due process of law [De Guzman v.
Angeles, G.R. No. 78590 (1988)]
Simultaneous filing of opposition and
petition
An interested person opposing the petition for
administration may pray in his opposition that
letters be issued to himself, or to any
competent person/s named in it. [Sec. 4, Rule
79]
Order appointing the regular administrator is
appealable [Sec. 1, Rule 109]
When letters of administration are issued
If proven at a hearing that
U.P. LAW BOC SPECIAL PROCEEDINGS
a. Notice has been given as required, and
b. Decedent left no will, or there is no
competent and willing executor.
[Sec. 5, Rule 79]
One who is named as executor in the will or
one who enjoys preference under the rules is
not automatically entitled to the issuance of
letters testamentary/of administration. A
hearing has to be held in order to ascertain her
fitness to act as executor/administrator.
[Baluyut v. Cruz Paño, G.R. No. L-42088
(1976)]
Letters of administration may be granted to any
qualified applicant, though it appears that there
are other competent persons having better
right, if such persons fail to appear when
notified and claim the issuance of letters to
themselves. [Sec. 6, Rule 79]
4. Powers and Duties of
Executors and
Administrators; Restrictions
on the Powers
Posting of bond
Before an executor or administrator enters
upon the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond in such sum as the court
directs. [Sec. 1, Rule 81]
Purpose
The bond posted by the administrators and
executors is intended as an indemnity to the
creditors, the heirs and the estate
How liability on the bond is enforced
By motion or in a separate action [Festin 56,
2011 Ed.]
Conditions on the bond
a. Make and return to the court, within 3
months, a true and complete inventory of
all goods, chattel, rights, credits, and estate
of the deceased which shall come to his
possession or knowledge or to the
possession of any other person for him
Page 285 of 525
REMEDIAL LAW
b. Administer according to these rules, and, if
an executor, according to the will of the
testator, all goods, chattel, rights, credits,
and estate of the deceased which shall
come to his possession or to the
possession of any other person for him,
and from the proceeds to pay and
discharge all debts, legacies, charges on
the same, or dividends as decreed by court
c. Render a true and just account of his
administration within 1 year and when
required by court, and
d. Perform all orders of the court [Sec. 1, Rule
81]
If the testator provides in his will that the
executor shall serve without bond, or with only
his individual bond, the court may still allow him
to file a bond conditioned only to pay debts of
the testator. But the court may require of the
executor a further bond in case of change in his
circumstances or for other sufficient cause.
[Sec. 2, Rule 81]
Bonds of joint executors and
administrators
The court may take a separate bond from each
executor or administrator, or a joint bond from
all. [Sec. 3, Rule 81]
a. General Powers and Duties of
Executors and Administrators
Have access to partnership books and
property at all times
1. Have access to, and may examine and
take copies of, books and papers relating
to the partnership business
2. Examine and make invoices of the property
belonging to such partnership
3. Request the surviving partner/s to exhibit to
him all such books, papers, and property in
their hands or control [Sec. 1, Rule 84]
Failure to freely permit the exercise of these
rights, and to exhibit the books, papers, and
property may subject any partner for contempt
Keep buildings in tenantable repair
1. Maintain the houses and other structures
and fences belonging to the estate, and
U.P. LAW BOC SPECIAL PROCEEDINGS
2. Deliver the same in such repair to the heirs
or devisees when directed so to do by the
court
[Sec. 2, Rule 84]
When a property is part of an estate and
subject to intestate proceedings before the
courts, the administrator may only deliver
properties of the estate to the heirs upon order
of the court. Verily, once an action for the
settlement of an estate is filed with the court,
the properties included therein are under the
control of the intestate court. And not even the
administrator may take possession of any
property that is part of the estate without prior
authority of the court. [Silverio, Jr. v. CA, G.R.
No. 178933 (2009)]
Right to possession and management of
the real and personal properties
1. So long as necessary for the payment of
the debts and the expenses of
administration [Sec. 3, Rule 84]
2. Administrator cannot exercise the right of
legal redemption over a portion of the
property owned in common sold by one of
the other co-owners since this is not within
the powers of administrator [Caro v. CA,
G.R. No. L-46001 (1982)]
When the estate of a deceased is already the
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
probate court. [Estate of Olave v. Reyes, G.R.
No. L-29407 (1983)]
b. Restrictions on Powers of
Executors and Administrators
Executor or administrator chargeable with
all estate and income
Chargeable in his account with the whole of the
estate which has come into his possession, at
the value of the appraisement contained in the
inventory, with:
1. Interest
2. Profit
3. Income of such estate and
4. Proceeds of as much of the estate as is
sold by him, at the price at which it was sold
Page 286 of 525
REMEDIAL LAW
[Sec. 1, Rule 85]
Prohibited from profiting by increase or
suffering loss by decrease in value
1. No executor/administrator shall profit by
the increase, or suffer loss by the decrease
or destruction, without his fault, of any part
of the estate
2. He must account for the excess (when sold
for more than appraisement)
3. If sold for less, he is not responsible for
loss, if sale justly made
4. If settled claim for less than nominal value,
he is entitled to charge in his account only
the amount actually paid on the settlement
[Sec. 2, Rule 85]
5. Not accountable for debts due the
deceased which remain uncollected
without his fault [Sec. 3, Rule 85]
Accountable for income from realty used by
him
If executor/administrator uses/occupies any
part of real estate himself, he shall account for
it
1. as may be agreed upon between him and
the parties interested, or
2. as may be adjusted by the court with the
parties’ assent.
If the parties do not agree upon the sum to be
allowed, the same may be ascertained by the
court, whose determination in this respect shall
be final. [Sec. 4, Rule 85]
Accountable if he neglects or delays to
raise or pay money
Damages sustained are considered waste, and
may be charged and allowed against him in his
account, and s/he is liable on his/her bond if
s/he
1. Neglects
a. or unreasonably delays to raise money,
by collecting debts or selling real or
personal estate of the deceased, or
b. to pay over money in his hands, and
2. The value of the estate is thereby lessened
or unnecessary cost or interest accrues, or
the persons interested suffer loss
[Sec. 5, Rule 85]
U.P. LAW BOC SPECIAL PROCEEDINGS
Only necessary expenses shall be allowed
1. Amount paid by executor/administrator for
costs awarded against him shall be allowed
in his administration account, unless it
appears that the action or proceeding in
which the costs are taxed was prosecuted
or resisted without just cause, and not in
good faith. [Sec. 6, Rule 85]
2. When the executor is an attorney, he shall
not charge against estate any professional
fees for legal services rendered. [Sec. 7,
Rule 85]
Necessary expenses of administration
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for the purpose of
liquidation, payment of debts, and distribution
of the residue among persons entitled thereto
[Hermanos v. Abada, G.R. No. 13910 (1919)]
Not considered as necessary expenses
1. Expenses incurred by heir as occupant of
family home without paying rent (ex. salary
of house helper, light, water bills, gas, etc.
[De Guzman v. De Guzman-Carillo, G.R.
No. L-29276 (1978)]
2. Expenses incurred by an executor or
administrator to produce a bond [Sison v.
Teodoro, G.R. No. L-9271 (1957)]
3. The administration bond should not be
considered as part of the necessary
expenses, not being included among the
acts constituting the care, management,
and settlement of the estate [Ocampo v.
Ocampo, G.R. No. 187879 (2010)]
Attorney’s fees
When an attorney assists the administrator or
executor personally in the execution of his
trust, the liability for the payment of attorney’s
fees rests on the executor or administrator.
However, if the fees paid are beneficial to the
estate and reasonable, he is entitled to
reimbursement from the estate. [Uy Tioco v.
Imperial, G.R. No. L-29414 (1928); Quasha
Ancheta Peña and Nolasco Law Office v. LCN
Construction Corp., G.R. No. 174873 (2008)]
Page 287 of 525
REMEDIAL LAW
Allowance to surviving spouse and children
The widow and minor or incapacitated children,
during the settlement of the estate, shall
receive, under the direction of the court, such
allowance as are provided by law. [Sec. 3, Rule
83]
It is the court hearing the settlement of the
estate, not the guardianship court, that should
execute the order for the payment of the
widow’s allowance considering that the
properties of the estate are within its
jurisdiction, to the exclusion of all the other
courts. [Heirs of Sy Bang v. Sy, G.R. Nos.
114217 and 150797 (2009)]
Allowances for support under Section 3, rule 83
should not be limited to the “minor or
incapacitated” children of the deceased. Article
188 of the Civil Code provides that during the
liquidation of the conjugal partnership, the
deceased’s legitimate spouse and children,
regardless of their age, civil status or gainful
employment, are entitled to provisional support
from the funds of the estate. The law clearly
limits the allowance to “widow and children”
and does not extend to grandchildren,
regardless of their minority or incapacity
[Estate of Ruiz v. CA, G.R. No. 118671 (1996)]
Executor or administrator to make
inventory and render account
Inventory
Rendered within 3 months of appointment and
includes an appraisal of all real and personal
estate of the deceased which has come into
his possession or knowledge [Sec. 1, Rule 83]
The usage of the word “all” in Sec. 1, Rule 83
demands the inclusion of all the real and
personal properties of the decedent in the
inventory. However, the word “all” is qualified
by the phrase “which has come into his
possession or knowledge,” which signifies that
the properties must be known to the
administrator to belong to the decedent or are
in her possession as the administrator. Sec. 1
allows no exception, for the phrase “true
inventory” implies that no properties appearing
to belong to the decedent can be excluded from
U.P. LAW BOC SPECIAL PROCEEDINGS
the inventory, regardless of their being in the
possession of another person or entity. [Aranas
v. Mercado, G.R. No. 156407 (2014)]
Not included
a. Wearing apparel of surviving husband or
wife and minor children
b. Marriage bed and bedding, and
c. Such provisions and other articles as will
necessarily be consumed in the
subsistence of the family of the deceased
[Sec. 2, Rule 83]
Accounting mandatory
Within 1 year from time of receiving letters
testamentary or of administration unless court
otherwise directs [Sec. 8, Rule 85]
He shall render such further accounts as court
may require until the estate is wholly settled
[Sec. 8, Rule 85]
Sec. 8, Rule 85 requires the administrator to
render an account of his administration within
1 year from receipt of the letters testamentary
or of administration [Hilado v. CA, G.R. No.
164108 (2009)]
The fact that the heirs of the estate have
entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator [Joson
v. Joson, G.R. No. L-9686 (1961)]
Examination on oath by court
As to the correctness of his account before the
same is allowed
Except:
a. when no objection is made to the
allowance of the account, and
b. its correctness is satisfactorily established
by competent proof.
[Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors
of the estate shall have the same privilege as
the executor/administrator of being examined
on oath on any matter relating to an
administration account. [Sec. 9, Rule 85]
Page 288 of 525
REMEDIAL LAW
5. Appointment of Special
Administrator
A special administrator is an officer of the court
who is subject to its supervision and control,
expected to work for the best interest of the
entire estate, with a view to its smooth
administration and speedy settlement.
[Ocampo v. Ocampo, G.R. No. 187879 (2010)]
The probate court is justified in appointing joint
special administrators pending determination
of the person or persons to whom letters of
administration may be issued, inasmuch as
there was a disagreement as to who should be
appointed. [Ocampo v. Ocampo, G.R. No.
187879 (2010); Heirs of Castillo v. Lacuata-
Gabriel, G.R. No. 162934 (2005)]
To reiterate, the role of a special administrator
is to preserve the estate until a regular
administrator is appointed. Given this duty on
the part of the special administrator, it would be
prudent and reasonable to appoint someone
interested in preserving the estate for its
eventual distribution to the heirs. While the
court may use its discretion, there is no logical
reason to appoint a person who is a debtor of
the estate and otherwise a stranger to the
deceased. To do so would be tantamount to
grave abuse of discretion [Manungas v. Loreto,
G.R. No. 193161 (2011)]
When appointed
a. When there is delay in granting letters
testamentary or administration by any
cause, including an appeal from allowance
or disallowance of a will [Sec. 1, Rule 80],
or
b. When the executor or regular administrator
has a claim against the estate, with respect
to the settlement or adjustment of that
claim. [Sec. 8, Rule 86]
Procedure
There must first be notice and publication.
Notice through publication of the petition is a
jurisdictional requirement even in the
appointment of a special administrator. [De
Guzman v. Angeles, G.R. No. 78590 (1988)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

The preference laid down under Sec. 6, Rule administrator is certiorari under Rule 65 [Tan v.
78 refers to the appointment of a regular Gedorio, G.R. No. 166520 (2008)]
administrator, not to that of a special
administrator. [Pijuan v. De Gurrea, G.R. No. Regular Special
L-21917 (1966)] administrator administrator
Appointed by the
Conditions on the bond court in the following Appointed by the
More specifically, the bond is conditioned on court when
instances
the faithful execution of the administration of
a. Testator fails to a. there is delay in
the decedent’s estate requiring the special
name an granting letters
administrator to
executor in the testamentary or
a. Make and return true inventory in his
will administration
possession or knowledge
b. The by any cause
b. Render accounting when required by court
appointment b. the executor is a
c. Deliver estate of the deceased to the
was refused claimant of the
regular executor or administrator, or other
c. The will was estate, but only
authorized person
disallowed to portion where
[Sec. 4, Rule 81; Ocampo v. Ocampo, G.R. No.
d. No will (intestate there is a claim
187879 (2010)]
succession)
Cannot pay debts of
Powers and duties Should pay the
a. Take possession and charge of goods, the estate unless
debts of the estate
chattels, rights, credits, and estate of ordered by the court
deceased, and Interlocutory and is
Order of
b. Preserve the same for not appealable.
Appointment is final
executor/administrator afterwards Remedy is Rule 65
and appealable
appointed, and for that purpose may petition
commence and maintain suits as
administrator
6. Grounds for Removal of
c. May sell only such perishable and other
property as the court orders sold Administrator
d. Not liable to pay any debts of the deceased
unless so ordered by the court Removal of executor or administrator
[Sec. 2, Rule 80] Grounds
a. Neglects to
When powers cease 1. render his account and settle the estate
When letters testamentary/administration are according to law, or
granted on the estate of the deceased 2. perform an order or judgment of the
a. Special administrator shall deliver to court, or a duty expressly provided by
executor/administrator goods, chattels, these rules
money, and estate of the deceased in his b. Absconds
hands. c. Becomes insane, or
b. The executor/administrator may prosecute d. Becomes incapable or unsuitable to
final judgment suits commenced by such discharge the trust
special administrator. [Sec. 2, Rule 82]
[Sec. 3, Rule 80]
List enumerated is not exclusive. Court is
The appointment of a special administrator lies vested with ample discretion in removal of
entirely in the discretion of the court, and is not administrator for as long as there is evidence
appealable. Not being appealable, the only of any act or omission on the part of the
remedy against the appointment of a special administrator not conformable to or in

Page 289 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
disregard of rules or orders of the court which
it deems as sufficient or substantial to warrant
removal of administrator. [Festin 62, 2011 Ed.]
Examples of valid removal of an
administrator by probate court
a. Administrator who disbursed funds of
estate without judicial approval [Cotia v.
Jimenez, G.R. No. L-12132 (1958)]
b. False representation by administrator in
securing his appointment [Cobarrubias v.
Dizon, G.R. No. L-225 (1946)]
c. Administrator who holds interest adverse to
that of the estate or his conduct shows
unfitness to discharge the trust [Garcia v.
Vasquez, G.R. No. L-26615 (1970)]
d. Administrator who has physical and mental
inability and consequent unsuitability to
manage the estate [De Borja v. Tan, G.R.
No. L-6476 (1955)]
Temporary absence in the state does not
disqualify one to be an administrator of the
estate. [Gonzales v. Aguinaldo, G.R. No.
74769(1990)]
Removal of Special Administrators
The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness
and the application of the order of preference
under Section 6 of Rule 78, as would be proper
in the case of a regular administrator, do not
obtain. As long as the discretion is exercised
without grave abuse, and is based on reason,
equity, justice, and legal principles,
interference by higher courts is unwarranted.
[Ocampo v. Ocampo, G.R. No. 187879 (2010)]
Effect of removal, death, or resignation
a. The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him
b. If there is no remaining
executor/administrator, administration may
be to any suitable person
[Sec. 2, Rule 82]
Page 290 of 525
REMEDIAL LAW
For complaints against the general
competence of the administrator, the proper
remedy is to seek the removal of the
administrator in accordance with Sec. 2, Rule
82. While the provision is silent as to who may
seek with the court the removal of the
administrator, a creditor, even a contingent
one, would have the personality to seek such
relief. [Hilado v. CA, G.R. No. 164108 (2009)]
Validity of acts
Lawful acts of the executor/administrator
before removal/resignation are valid. [Sec. 3,
Rule 82]
The acts of the executor or administrator, done
in good faith prior to the revocation of the
letters, will be protected and a similar
protection will be extended to rights acquired
under a previous grant of administration. [Vda.
De Bacaling v. Laguna, G.R. No. L-26694
(1973)]
Powers of new executor or administrator
a. Collect and settle the estate not
administered
b. Prosecute and defend actions commenced
by or against the former
executor/administrator, and
c. Have execution on judgments recovered in
the name of the former
executor/administrator
d. Authority to sell granted by court to former
executor or administrator may be renewed
without further notice or hearing
[Sec. 4, Rule 82]
F. CLAIMS AGAINST
THE ESTATE
Estate burdened with lien of creditors
Upon the death of the person, all his property
is burdened with all his debts, his debts
creating an equitable lien thereon for the
benefit of the creditors. And such lien continues
until the debts are extinguished either by the
payment, prescription, or satisfaction in one of
the modes recognized by law. [Suiliong & Co.
v. Chio-Taysan, G.R. No. L-4777 (1908)]
U.P. LAW BOC SPECIAL PROCEEDINGS
Purpose of presentation of claims against
estate
1. To protect the estate of the deceased
2. Executor/administrator will be able to
examine each claim, determine whether it
is a proper one which should be allowed
3. To appraise the administrator and the
probate court of the existence of the claim
so that a proper and timely arrangement
may be made for its payment in full or by
pro-rata portion in the due course of the
administration
[Estate of Olave v. Reyes, G.R. No. L-29407
(1983)]
1. Time within which Claims
shall be filed; Exceptions
General rule: Claims must be filed within the
time specified by the court in its notice which
shall not be less than 6 months nor more than
12 months from the date of the first publication
of the notice. [Sec. 2, Rule 86]
Exceptions: Belated claims
The court has discretion, for cause and upon
such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed; provided they are filed within
1 month from the expiration of such period but
in no case beyond the date of entry of the order
of distribution. [Danan v. Buencaminao, G.R.
No. L-57205 (1981); Sec. 2, Rule 86]
Note: The one-month extension does not
commence from expiration of the original
period for filing claims but from the date of the
order of the court allowing said filing. [Barredo
v. CA, G.R. No. L-17863 (1962)
Notice to creditors to be published;
Affidavit of publication
Executor/administrator shall, immediately after
the notice to creditors is issued, cause
publication of notice for 3 weeks successively
in a newspaper of general circulation in the
province, and its posting in 4 public places in
the province, and in 2 public places in the
municipality, where the decedent last resided.
[Sec. 3, Rule 86]
Page 291 of 525
REMEDIAL LAW
Printed copy of the published notice shall be
filed in court within 10 days after its publication
accompanied with affidavit setting forth the
dates of first and last publication and name of
newspaper where it was printed [Sec. 4, Rule
86]
Significance of Notice
Publication of notice is constructive notice to
creditors and, thus, a creditor would not be
permitted to file a claim beyond the period fixed
in the notice on the bare ground that he had no
knowledge of the administration proceedings.
[Villanueva v. PNB, G.R. No. L-18403 (1963)]
2. Statute of Non-Claims
General rule: Claim must be filed within the
time limited in the notice; otherwise they are
barred forever [Sec. 5, Rule 86]
Purpose is to settle the estate with dispatch,
so that the residue may be delivered to the
persons entitled thereto without their being
afterwards called upon to respond in actions for
claims [Rio y Compania v. Maslog, G.R. No. L-
12302 (1959), citing Tan Se Guan v. GaSiu
San, 47 Phil. 96]
The filing of a money claim against the
decedent’s estate is mandatory. The
requirement is for the purpose of protecting the
estate of the deceased by informing the
executor or administrator of the claims against
it, enabling him to examine each claim and to
determine whether it is a proper one which
should be allowed. The plain and obvious
design of the rule is the speedy settlement of
the affairs of the deceased and the early
delivery of the property to the distributees,
legatees, or heirs. [Union Bank of the
Philippines v. Santibañez, G.R. No. 149926
(2005), citing Py Eng Chong v. Herrera, G.R.
No. L-31229 (1976)]
Claims covered (exclusive)
a. Claims for money against the decedent
arising from contract
1. Express or implied
2. Due or not
3. Contingent or not
U.P. LAW BOC SPECIAL PROCEEDINGS
b. Claims for funeral expenses
c. Expenses for last sickness
d. Judgment for money against decedent
[Sec. 5, Rule 86]
Statute of non-claims supersedes statute of
limitations when it comes to debts of deceased
persons. [Sikat v. Vda. De Villanueva, G.R. No.
L-35925 (1932)]
Exceptions:
a. When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Sec. 5, Rule
86]
b. Belated claims [Sec. 2, Rule 86]
Quasi-contracts and contingent claims are
included in claims that should be filed under
Rule 86, Sec. 5 [Metropolitan Bank & Trust Co
v. Absolute Management Corp., G.R. No.
170498 (2013)]
Contingent claim
One which by its nature, is necessarily
dependent upon an uncertain event for
existence or validity, which may or may not
develop into an enforceable claim. [Buan v.
Laya, G.R. No. L-7593 (1957)]
When allowed
a. When it becomes absolute
b. Presented to the court or
executor/administrator within 2 years from
the time limited for other creditors to
present their claims, and
c. Not disputed by executor/administrator
[Sec. 5, Rule 88]
If disputed, it may be proved and allowed or
disallowed by the court as the facts may
warrant [Sec. 5, Rule 88]
Where an executor/administrator commences
action, or prosecutes an action already
commenced by deceased in his lifetime, the
debtor may set forth by answer the claims he
has against decedent, instead of presenting
them independently to the settlement court,
and mutual claims may be set off against each
other in such action. If the debtor obtains a
Page 292 of 525
REMEDIAL LAW
favorable judgment, the amount shall be
considered the true balance against the estate,
as though the claim had been presented
directly before the court in the administration
proceedings. [Sec. 5, Rule 86]
In a labor case where the deceased was found
to have illegally dismissed the plaintiff, the
money claims of the plaintiff who was adjudged
entitled thereto must be filed against the estate
of the deceased. [Gabriel v. Bilon, G.R. No.
146989 (2007); Sec. 20, Rule 3 in relation to
Sec. 5, Rule 86]
The specific provisions of Sec. 5, Rule 86
prevails over the general provisions of Section
11, Rule 6 of the same. The settlement of the
estate of the decedent is governed by the rules
on special proceedings, while the rules
provided for ordinary claims including Section
11, Rule 6 merely apply suppletorily.
[Metropolitan Bank & Trust Co. v. Absolute
Management Corporation, G.R. No. 170498
(2013)]
The presentation of a money claim may be
waived. [Ignacio v. Pampanga Bus Co., Inc.,
G.R. No. L-18936 (1967)]
If obligation solidary - file claim against
decedent as if he is the only debtor
If obligation joint - claim confined to the
portion belonging to the decedent [Sec. 6, Rule
86]
Where the obligation assumed by the decedent
with his wife is a solidary one, a collection case
can proceed and the demands of the creditor
may be satisfied by the widow only, even
without impleading the estate of her deceased
husband. Thus, under Article 1216 of the Civil
Code, the creditor has the right to proceed
against anyone of the solidary debtors or some
or all of them simultaneously. To require the
creditor to proceed only as against the estate
would deprive him of his substantive rights
under the Civil Code. [Boston Equity
Resources, Inc. v. CA, G.R. No. 173946
(2013)]
U.P. LAW BOC SPECIAL PROCEEDINGS
Alternative remedies of a mortgage creditor
upon death of debtor
a. Abandon the security and prosecute his
claim from the estate as an ordinary
claim – creditor is deemed to have
abandoned the mortgage and he cannot
thereafter file a foreclosure suit if he fails to
recover his money claim against the estate.
b. Foreclose mortgage judicially and
prove any deficiency as an ordinary
claim – suit should be against the executor
or administrator as party defendant;
creditor may obtain deficiency judgment if
he fails to fully recover his claim.
c. Rely solely on the mortgage and
foreclose it before it is barred by
prescription without right to claim for
deficiency – includes extrajudicial
foreclosure of sale and its exercise
precludes one from recovery of any
balance of debt against the estate and
frees the estate from further liability.
[Sec. 7, Rule 86]
It must, however, be emphasized that these
remedies are distinct, independent, and
mutually exclusive from each other, thus, the
election of one effectively bars the exercise of
the others [Heirs of Maglasang v. Manila
Banking Corporation, G.R. No. 171206 (2013);
Philippine National Bank v. CA, G.R. No.
121597 (2001); Festin 79, 2011 Ed.]
3. Claim of Executor or
Administrator against the
Estate
Procedure to follow if the
executor/administrator has a claim against
the estate he represents
a. Executor/Administrator shall give notice
thereof, in writing, to the court
b. The court shall appoint a special
administrator who shall have the same
power and liability as the general
executor/administrator in the adjustment of
such claim
c. The court may order the
executor/administrator to pay to the special
Page 293 of 525
REMEDIAL LAW
administrator necessary funds to defend
such claim
[Sec. 8, Rule 86]
c. How to File For a Claim
a. Deliver the claim with the necessary
vouchers to the clerk of court, and
b. Serve a copy thereof on the
executor/administrator
[Sec. 9, Rule 86]
Additional requirements
a. If the claim be founded on a bond, bill, note,
or any other instrument – the original need
not be filed, but a copy thereof with all
indorsements shall be attached to the
claim.
On demand, however, of
executor/administrator, or by order of court
or judge, the original shall be exhibited,
unless it be lost or destroyed, in which case
the claimant must accompany his claim
with affidavit or affidavits containing a copy
or particular description of the instrument
and stating its loss or destruction.
b. When the claim is due – it must be
supported by an affidavit which states
i. the amount justly due;
ii. that no payments have been made
thereon which are not credited; and
iii. that there are no offsets to the
same, to the knowledge of the
affiant.
c. If the claim is not due, or is contingent,
when filed – it must also be supported by
affidavits stating the particulars thereof.
d. When the affidavit is made by a person
other than the claimant, he must set forth
therein the reason why it is not made by the
claimant.
[Sec. 9, Rule 86]
Answer by executor/administrator
Shall be filed within 15 days after a copy of the
claim has been served upon him. The
executor/administrator may interpose any
counterclaim. Said counterclaim is regarded as
compulsory, as the failure to file the same shall
bar the claim forever. [Sec. 10, Rule 86]
U.P. LAW BOC SPECIAL PROCEEDINGS
Executor/administrator entirely admits
claim – claim shall be submitted by the clerk to
the court who may approve the same without
hearing, but the court in its discretion before
approving the claim, may order that known
heirs, legatees, or devisees be notified and
heard. If the latter oppose upon hearing, the
court may allow 15 days to file an answer. [Sec.
11, Rule 86]
Executor/administrator disputes claim OR
fails to file answer – clerk of court shall set the
claim for trial with notice to both parties [Sec.
12, Rule 86]
Judgment of court approving or disapproving a
claim shall be appealable as in ordinary cases.
[Sec. 13, Rule 86]
4. Payment of Debts
Debts paid in full if estate sufficient
1. After all money claims heard and their
amount ascertained, and
2. It appears there are sufficient assets to pay
the debts [Sec. 1, Rule 88]
The executor/administrator shall pay the same
within the time limited for that purpose. [Sec. 1,
Rule 88]
The heirs of the estate may not demand the
closing of an intestate proceeding at any time
where there is a pending case against the
administrator of the estate. The court can
rightfully hold the proceeding in abeyance until
the civil case is settled. [Dinglasan v. Chia,
G.R. No. L-3342 (1951)]
Order of preference for payment of debts
1. Portion of property designated in the will
a. If testator makes provision by will, or
designates the estate for the payment
of debts, expenses of administration, or
family expenses, they shall be paid
according to such provisions
b. If not sufficient – part of the estate not
disposed of by will shall be
appropriated [Sec. 2, Rule 88]
2. Personal property [Sec. 3, Rule 88]
3. Real property [Sec. 2, Rule 89]
Page 294 of 525
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If there is still a deficiency, the debt shall be
satisfied through the contributive shares of the
devisees, legatees, or heirs who have been in
possession of portions of the estate before
debts and expenses have been settled and
paid. [Sec. 6, Rule 88]
General rule: Personal estate not disposed of
by will shall be first chargeable
Exceptions (when realty charged first)
1. When the sale of personal property is
insufficient [Sec. 3, Rule 88]
2. When its sale will redound to the detriment
of the participants for the estate [Id.]
3. When its sale may injure the business or
other interests of those interested in the
estate [Sec. 2, Rule 89]
4. When the testator has not made sufficient
provision for payment of such debts,
expenses, and legacies [Id.]
5. When the decedent was, in his lifetime,
under contract, binding in law, to deed real
property, or an interest therein, to
beneficiary [Id., Sec. 8]
6. When the decedent during his lifetime held
real property in trust for another [Id., Sec.
9]
Requisites before any of the exceptions
apply
1. The executor or administrator makes an
application with the court
2. Written notice is given to the persons
interested
3. Hearing by the court
Note, HOWEVER:
Sec. 8 should be differentiated from Secs. 2
and 4 of Rule 89, specifically requiring only the
executor or administrator to file the application
for authority to sell, mortgage or otherwise
encumber real estate for the purpose of paying
debts, expenses and legacies (Sec. 2); or for
authority to sell real or personal estate
beneficial to the heirs, devisees or legatees
and other interested persons, although such
authority is not necessary to pay debts,
legacies or expenses of administration (Sec.
4). Sec. 8, Rule 89 mentions only an
application to authorize the conveyance of
U.P. LAW BOC SPECIAL PROCEEDINGS
realty under a contract that the deceased
entered into while still alive. The proper party
is one who is to be benefited or injured by
the judgment, or one who is to be entitled to
the avails of the suit [Heirs of Sandejas v.
Lina, G.R. No. 141634 (2001)]
The disposal of estate property requires judicial
approval before it could be executed. Implicit in
the requirement for judicial approval was that
the probate court could rescind or nullify the
disposition of a property under administration
that was effected without its authority [Spouses
Lebin v. Mirasol, G.R. No. 164255 (2011)]
Sale beneficial to interested persons
Upon application of the executor or
administrator and on written notice to the heirs,
devisees, and legatees, the court may
authorize the sale of the whole or a part of the
real or personal estate when beneficial to the
heirs, although not necessary to pay debts,
legacies, or expenses of administration.
Proceeds derived from the sale shall be
assigned to the persons entitled to estate in the
proper proportions
BUT the authority will not be granted if
inconsistent with the provisions of a will. [Sec.
4, Rule 89]
Sale, mortgage, or other encumbrance of
realty acquired on execution or foreclosure
The court may authorize an executor or
administrator to sale, mortgage, or otherwise
encumber real estate acquired by him on
execution or foreclosure sale, under the same
circumstances and under the same regulations
as prescribed in this rule. [Sec. 6, Rule 89]
Deed of sale, mortgage or encumbrance
The deed executed by the executor or
administrator shall be valid as if executed by
the deceased in his lifetime.
[Sec. 7-8, Rule 89]
For sales contracted by the decedent during
his lifetime, Sec. 8, Rule 89 applies. In such
cases, the court having jurisdiction of the
estate may, on application for that purpose,
Page 295 of 525
REMEDIAL LAW
authorize the executor or administrator to
convey such property according to such
contract, or with such modifications as are
agreed upon by the parties and approved by
the court. [Liu v. Loy, G.R. No. 145982 (2003)]
Court approval is required in any disposition if
the decedent’s estate per Rule 89. Reference
to judicial approval, however, cannot adversely
affect the substantive rights of heirs to dispose
of their own pro indiviso shares in the co-
heirship or co-ownership. In other words, they
can sell their rights, interests or participation in
the property under administration. [Heirs of
Spouses Sandejas v. Lina, G.R. No. 141634
(2001)]
OPPOSITOR MAY PREVENT SALE BY
GIVING BOND
The authority to sell, mortgage, or otherwise
encumber real or personal estate shall not be
granted if any person interested in the estate
gives a bond, in a sum fixed by the court. [Sec.
3, Rule 89]
Conditions of bond
To pay debts, expenses of administration, and
legacies within such time as court directs [Id.]
Who may claim on the bond
Such bond shall be for security of creditors, as
well as of executor/administrator, and may be
prosecuted for the benefit of either [Id.]
REGULATION FOR GRANTING AUTHORITY
TO SELL, MORTGAGE, OR OTHERWISE
ENCUMBER ESTATE
a. The executor/administrator shall file a
written petition setting forth
1. Debts due from deceased, expenses
for administration, legacies
2. Value of personal estate
3. Situation of estate to be sold,
mortgaged, encumbered, and
4. Such other facts showing that sale etc.,
is necessary or beneficial
b. The court will fix the time and place for
hearing such petition and cause notice to
be given personally or by mail to persons
interested, and by publication if deemed
proper
U.P. LAW BOC SPECIAL PROCEEDINGS
c. The court may require the
executor/administrator to give additional
bond conditioned on an accounting for
proceeds of sale, etc.
d. The court may authorize sale to be public
or private
e. If estate is to be sold at auction, mode of
giving notice shall be governed by
provisions concerning notice of execution
sale
f. Certified copy of the order of the court, plus
deed of executor/administrator for real
estate sold, mortgaged, or encumbered
shall be registered in registry of deeds
where property is located
[Sec. 7, Rule 89]
Under Sec. 7, Rule 89, only the executor or
administrator of the estate may be authorized
by the intestate court to mortgage real estate
belonging to the estate. Thus, the order of the
estate court authorizing the heirs to mortgage
the realty of the estate is a nullity. [Orola, et al.
v. The Rural Bank of Pontevedra, G.R. No.
158566 (2005)]
Settled is the rule that when an order
authorizing the sale or encumbrance of real
property was issued by the testate or intestate
court without previous notice to the heirs,
devisees, and legatees as required by the
Rules, it is not only the contract itself which is
null and void but also the order of the court
authorizing the same. [Pahamotang v. PNB,
G.R. No. 156403 (2005)]
CONTINGENT CLAIMS
Estate to be retained to meet contingent
claims
If court is satisfied that a contingent claim is
valid, it may order the executor/administrator to
1. Retain in his hands sufficient estate for the
purpose of paying such contingent claim
when it becomes absolute
2. If estate insolvent - retain a portion equal
to the dividend of the other creditors [Sec.
4, Rule 88]
Payment of contingent claim
1. If claim becomes absolute within 2
years limited for creditors and allowed
Page 296 of 525
REMEDIAL LAW
by the court - Creditor shall receive
payment to the same extent as the other
creditors if estate retained by
executor/administrator is sufficient.
2. Claim not presented after becoming
absolute within 2 year period and
allowed by the court – Assets retained
after claims have been paid shall be
distributed to persons entitled by court
order; but assets already distributed may
still be applied to the payment of the
established claim, and the creditor may
maintain an action against the distributees
to recover the debt, and such distributees
and their estates shall be liable for the debt
in proportion to the estate they have
respectively received from property of
deceased. [Sec. 5, Rule 88]
Liability of heirs and distributees
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate. [Gov’t of P.I. v.
Pamintuan, G.R. No. L-33139 (1930)]
INSOLVENT DECEDENT
Order of payment if estate is insolvent
Executor/administrator shall pay the debts
against the estate, observing Articles 1059 and
2239 to 2251 of the Civil Code (Preference of
credits). [Sec. 7, Rule 88]
Dividends to be paid in proportion to claims
If assets are not sufficient to pay credits of any
one class of creditors after paying preferred
credits, each creditor within such class shall be
paid a dividend in proportion to his claim. No
creditor of any one class shall receive any
payment until those of the preceding class are
paid. [Sec. 8, Rule 88]
Insolvent non-resident
His estate found in Philippines shall be so
disposed of in a manner that will ensure that his
creditors here and elsewhere may receive
U.P. LAW BOC SPECIAL PROCEEDINGS
each an equal share, in proportion to their
respective credits. [Sec. 9, Rule 88]
Insolvent resident with foreign creditors
and foreign claims proven in another
country
If executor/administrator in Philippines had
1. knowledge of presentation of such claims
in such country, and
2. opportunity to contest such allowance
The court shall
1. Receive a certified list of such claims, when
perfected in such country
2. Add the same to the list of claims proved
against the deceased person in the
Philippines so that a just distribution of the
whole estate may be made equally among
all its creditors according to their respective
claims.
[Sec. 10, Rule 88]
Principle of reciprocity
The benefit of this and preceding sections shall
not be extended to creditors in another country
if property of the deceased there found is not
equally apportioned to creditors residing in
Philippines and other creditors, according to
their respective claims [Sec. 10, Rule 88]
ORDER FOR PAYMENT OF DEBTS
Before expiration of time limited for payment of
the debts, court shall order
1. payment, and
2. distribution of assets received by the
executor/administrator for that purpose
among the creditors, as the circumstances
of the estate require and in accordance
with the provisions of this rule.
[Sec. 11, Rule 88]
If appeal taken from a decision of the court
concerning a claim
The court may
1. Suspend order for payment, or
2. Order distribution among creditors whose
claims are definitely allowed, leaving in the
hands of executor/administrator sufficient
assets to pay the claim disputed and
appealed
Page 297 of 525
REMEDIAL LAW
When a disputed claim is finally settled, the
court shall order the claim to be paid out of
assets retained to the same extent and in the
same proportion with the claims of other
creditors.
[Sec. 12, Rule 88]
Instances when court may make further
orders for distribution of assets
1. If whole of debts not paid on first
distribution, and
2. If:
a. Whole assets not distributed, or
b. Other assets afterwards come to hands
of executor/administrator
[Sec. 13, Rule 88]
Creditors to be paid in accordance with
terms of order
When an order is made for distribution of
assets among creditors, executor/
administrator shall, as soon as the time of
payment arrives, pay creditors the amounts of
their claims, or the dividend thereon, in
accordance with the terms of such order [Sec.
14, Rule 88]
Time for paying debts and legacies
General rule: Not exceeding 1 year in the first
instance
Exception: Court may extend the period, on
application of the executor/administrator after
hearing on notice to all interested persons, on
the following conditions
1. Extension must not exceed 6 months for a
single extension, and
2. The whole period allowed shall not exceed
2 years
[Sec. 15, Rule 88]
Extension of time for paying debts and
legacies
When executor/administrator dies, and a new
administrator of same estate is appointed,
court may extend time
1. Not exceeding 6 months at a time, and
2. Not exceeding 6 months beyond the time
which court might have allowed to original
executor/administrator,
U.P. LAW BOC SPECIAL PROCEEDINGS
and notice shall be given of time and place for
hearing such application, as required in the last
preceding section.
[Sec. 16, Rule 88]
Writ of execution
General rule: The probate court does not have
the power to issue writs of execution. A writ of
execution is not the proper procedure for the
payment of debts and expenses of
administration. The proper procedure is for the
court to order the sale of personal estate or the
sale of mortgaged of real property of the
deceased and all debts or expenses of
administration should be paid out of the
proceeds of the sale or mortgage [Aldamiz v.
Judge of CFI-Mindoro, G.R. No. L-2360 (1949)]
Exceptions:
1. To satisfy the distributive shares of
devisees, legatees, and heirs in
possession of the decedent’s assets, or
2. To enforce payment of expenses of the
partition, or
3. To satisfy the costs when a person is cited
for examination in probate proceedings
[Festin 86, 2011 Ed.]
G. ACTIONS BY AND
AGAINST EXECUTORS AND
ADMINISTRATORS
1. Actions by and against
Executors
Actions that may be brought against
executor or administrator (actions that
SURVIVE the decedent’s death)
a. Recovery of real or personal property, or
interest therein, from estate
b. Enforcement of a lien thereon, and
c. Recovery of damages for an injury to a
person or property, real or personal
[Sec. 1, Rule 87; Sarsaba v. Vda. De Te, G.R.
No. 175910 (2009)]
NO action upon a claim for the recovery of
money or debt or interest shall be commenced
Page 298 of 525
REMEDIAL LAW
against the executor/administrator. [Sec. 1,
Rule 87]
When an accused, a doctor, died pending
appeal of his conviction in a case arising from
the death of his patient, his criminal liability is
extinguished. However, the recovery of the civil
liability subsists as the same is not based on
delict but by contract and the reckless
imprudence he was guilty of. If the same act or
omission complained of arises from quasi-
delict, as in this case, a separate civil action
must be filed against the executor or
administrator of the estate of the accused
pursuant to Sec. 1, Rule 87. [Cabugao v.
People, G.R. Nos. 163879 and 165805 (2014)]
Executor or administrator may bring or
defend actions which survive death
For recovery or protection of property or rights
of deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to
other wrongs by which personal estate is
injured or diminished. [Aguas v. Llenos, G.R.
No. L-18107 (1962)]
Mortgage due to the decedent’s estate may
be foreclosed by the executor/administrator
[Sec. 5, Rule 87]
General rule: Heirs may not sue for recovery
of property of the estate against
executor/administrator during pendency of
administration proceedings. [Sec. 3, Rule 87;
Romero v. CA, G.R. No. 188921 (2012)]
Exceptions:
a. If executor or administrator is unwilling to
bring a suit
b. When the executor or administrator is
made a party defendant where he is
alleged to have participated in the act
complained of
c. Where there is no appointed administrator
[Festin 81-82, 2011 Ed.]
U.P. LAW BOC SPECIAL PROCEEDINGS
Proceedings when property concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
a. Having concealed, embezzled, or
conveyed away any of the money, goods,
or chattels of the deceased, or
b. Having in his possession or having
knowledge of
1. any deed, conveyance, bond, contract,
or other writing which contains
evidence of or tends or discloses the
right, title, interest, or claim of
deceased to real or personal estate, or
2. last will and testament of deceased,
to appear before it and be examined on oath on
the matter of complaint by the executor or
administrator, heir, legatee, creditor or other
individual interested in the estate of the
deceased to the court having jurisdiction of the
estate.
If the person so cited refuses to appear, or to
answer on such examination or such
interrogatories as are put to him, the court may
punish him for contempt, and may commit him
to prison until he submits to the order of the
court. [Sec. 6, Rule 87]
Purpose
Similar to Sec. 6, Rule 87, Sec. 7 of the same
rule is merely in the nature of fact-finding
inquiries. It is intended to elicit evidence
relative to estate properties. The RTC which
has jurisdiction over the administration and
settlement of the estate has limited jurisdiction
and is without authority to resolve issues of
ownership with finality especially when third
persons are involved. Separate actions should
be instituted by the administrator for the
purpose. [Punongbayan v. Punongbayan, G.R.
No. 156842 (2004)]
Double Value Rule
A person who embezzles or alienates any of
the money, goods, chattels, or effects of the
deceased before the granting of letters
testamentary or of administration of the estate,
is liable for double the value of the property
sold, embezzled, or alienated, to be recovered
in favor of the estate [Sec. 8, Rule 87]
Page 299 of 525
REMEDIAL LAW
When executor or administrator may bring
action for recovery of property fraudulently
conveyed by deceased
a. There is a deficiency of assets for payment
of debts and expenses of administration
and the deceased, in his lifetime, had
conveyed real or personal property, right or
interest therein, or debt or credit with intent
to defraud his creditors or avoid any right,
debt or duty, or
b. Deceased had so conveyed such property,
right, interest, debt or credit that by law the
conveyance would be void as against the
creditors and the subject of the attempted
conveyance would be liable to attachment
by any of them in his lifetime
[Sec. 9, Rule 87]
Process of recovery by the executor or
administrator of property fraudulently
conveyed
a. Creditors apply for the commencement of
the action
b. Creditors making the application pay such
part of the costs and expenses, or give
security therefor to the
executor/administrator, as the court deems
equitable
c. Executor/administrator commences and
prosecutes to final judgment an action for
the recovery of such property, right,
interest, debt or credit for benefit of the
creditors
[Sec. 9, Rule 87]
2. Requisites before Creditor
may bring an Action for
Recovery of Property
Fraudulently Conveyed by the
Deceased
1. There is a deficiency of assets
2. The deceased in his lifetime had made or
attempted such a conveyance with intent to
defraud creditors or to avoid any right,
debt, or duty
3. The executor or administrator has not
commenced the action provided in Sec. 9,
Rule 87
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

4. The creditor has filed a bond executed to [Agtarap v. Agtarap, G.R. Nos. 177099 and
the executor or administrator in an amount 177192 (2011)]
approved by the judge, conditioned to
indemnify the executor or administrator 1. Liquidation
against the costs and expenses incurred by
reason of such action General rule: Before an order of distribution or
assignment, it must be shown that the debts,
a. If executor/administrator failed to funeral expenses, and expenses of
commence such action administration, allowance to widow, and
1. Action must be inheritance tax chargeable to the estate have
i. With court permission been paid.
ii. In the name of
executor/administrator Exception: If the distributees give a bond
2. Creditor must file bond, conditioned to conditioned for the payment of said obligations.
indemnify the executor/administrator [Sec. 1, Rule 90; Estate of Ruiz v. CA, G.R. No.
against the cost and expenses incurred 118671 (1996)]
by such action
b. If conveyance or attempt is made in favor The part distributed must not be subject to any
of executor/administrator controversy or appeal. [Sec. 2, Rule 109]
1. No need for court permission
2. No need for bond
3. Action in the name of all creditors 2. Project of Partition
Such creditor shall have a lien upon any
judgment recovered by him in the action for A project of partition is merely a proposal for
such costs and other expenses incurred the distribution of the hereditary estate which
therein as the court deems equitable. the court may accept or reject. [Reyes v.
[Sec. 10, Rule 87] Barretto-Datu, G.R. No. L-17818 (1967); Vda.
De Kilayko v. Tengco, G.R. Nos. L-45425 and
L-45965 (1992)]
H. DISTRIBUTION AND
The executor/administrator has no duty to
PARTITION prepare and present the same under the Rules.
The court may, however, require him to present
Before there could be a distribution of the such project to better inform itself of the
estate, the following stages must be condition of the estate. [3 Moran 541, 1980 Ed.]
followed
1. Liquidation of estate i.e. payment of When order for distribution of residue made
obligations of deceased Court makes that distribution of the estate and
2. Declaration of heirs - to determine to determines the persons entitled thereto
whom the residue of the estate should be a. On application of executor/administrator or
distributed of person interested in estate
a. Determination of the right of a natural b. Hearing upon notice
child
b. Determination of proportionate shares Court shall assign the residue of the estate to
of distributees the persons entitled to the same, naming them
Afterwards, the residue may be distributed and and the proportions, or parts, to which each is
delivered to the heirs [3-A Herrera 173, 1996 entitled.
Ed.]
Such persons may demand and recover their
Payment of the inheritance tax, per se, does respective shares from the
not settle the estate of a deceased person.

Page 300 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
executor/administrator, or any other person
having the same in his possession.
If there is a controversy as to who are lawful
heirs such shall be heard and decided as in
ordinary cases [Sec. 1, Rule 90]
The order of a probate court approving the
compromise had the effect of directing the
delivery of the residue of the estate to the
persons entitled thereto under the compromise
agreement. As such, it brought to a close the
intestate proceedings and the probate court
lost jurisdiction over the case, except only as
regards the compliance and the fulfillment of
the parties of their respective obligations under
the compromise agreement. [Reyes-Masugas
v. Reyes, G.R. No. 174835 (2010)]
Court may determine questions as to
advancement made by decedent [Sec. 2,
Rule 90]
Although it is within the jurisdiction of the court
whether or not to permit the advance
distribution of the estate, its exercise should be
qualified by the following: (1) only part of the
estate that is not affected by any pending
controversy or appeal may be subject of
advance distribution (Sec. 2, Rule 109); and (2)
the distributees must post a bond, fixed by the
court, conditioned for the payment of
outstanding obligations of the estate. (par. 2,
Sec. 1, Rule 90) [Quasha Ancheta Peña and
Nolasco Law Office v. LCN Construction
Corporation, G.R. No. 174873 (2008)]
Effect of final decree of distribution
Title to the property of the estate vests in the
distributees. [De Kilayko v. Tengco, G.R. No.
45425 (1992)]
The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence. [Vda. De Alberto v. CA, G.R. No.
L-29759 (1989)]
Page 301 of 525
REMEDIAL LAW
3. Remedy of an Heir Entitled to
Residue but Not Given His
Share
The better practice for the heir who has not
received his share is to
a. Demand his share through a proper motion
in the same probate or administrative
proceedings, or
b. Motion for reopening of the probate or
administrative proceedings if it had already
been closed, and not through an
independent action
[Guilas v. Judge of the CFI of Pampanga, G.R.
No. L-26695 (1972)]
BUT where special proceedings had been
instituted but had been finally closed and
terminated, however, or if a putative heir has
lost the right to have himself declared in the
special proceeding as a co-heir and he can no
longer ask for its re-opening, then an ordinary
civil action can be filed for his declaration as
heir in order to bring about the annulment of the
partition or distribution or adjudication of a
property or properties belonging to the estate
of the deceased. [Portugal v. Portugal-Beltran,
G.R. No. 155555 (2005)]
4. Instances when Probate
Court may Issue Writ of
Execution
General rule: writ of execution is not allowed
in probate proceedings [Vda de. Valera v.
Ofilada, G.R. No. L-27526 (1974)]
Exceptions:
a. To satisfy the contributive shares of
devisees, legatees and heirs in possession
of the decedent’s assets [Sec. 6, Rule 88]
b. To enforce payment of expenses of
partition [Sec. 3, Rule 90]
c. To satisfy the costs when a person is cited
for examination in probate proceedings
[Sec. 13, Rule 142]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

When does a probate court lose jurisdiction property or

of an estate under administration? portion
The probate court loses jurisdiction of an estate affected by
under administration only after payment of all the trust is
debts, and the remaining estate delivered to situated
the heirs entitled to receive the same [Guilas v. [Sec. 1, Rule 98]
Judge of the CFI of Pampanga, G.R. No. L- Personal property may,
26695 (1972)] upon order, be sold
a. To pay debts,
expenses, or
I. TRUSTEES legacies, or
b. If it appears
necessary for
Trust is a confidence reposed in one person, preservation of the
called the trustee, for the benefit of another property [Sec. 1,
called the cestui que trust, with respect to the Rule 89], or
property held by the former for the benefit of c. If sale of whole or
the latter. [De Leon 254, 2015] part will be
beneficial to heirs,
Note: This rule only applies to express trusts devisees, legatees
and not implied trusts which arise by operation and other
of law [2 Regalado 148, 2004 Ed.] interested persons
and is not
May sell or inconsistent with
1. Distinguish Trustee and encumber real or the provisions of
Executor/Administrator personal property the will [Sec. 4,
of estate held in Rule 89]
Executor/ trust if necessary
Trustee
Administrator or expedient upon Real property may,
Accounts are not under order of the court upon order, be sold,
oath and shall be filed on petition and mortgaged,
Accounts must be within 1 year from the after due notice encumbered to pay
under oath and time of receiving letters and hearing debts
filed at least once testamentary or of [Sec. 9, Rule 98] a. When personal
a year [Sec. 6(c), administration, and as estate is
Rule 98] the court may require, insufficient to pay
until the estate is wholly debts, or
settled [Sec.8, Rule 85] b. Where
Court which has 1. Sale of
jurisdiction: personal estate
a. RTC in which may injure
will was business of
allowed if Court which has persons
appointed to jurisdiction may be the interested in
carry into RTC or MTC estate; and
effect the [Sec. 19 and 33, B.P. 2. Property
provisions of 129] appropriated
a will by testator in
b. RTC of will is
province in insufficient to
which pay debts

Page 302 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

[Sec. 2, Rule 89] He will manage and dispose of all such

Appointed to estate, and faithfully discharge his trust in
carry into effect Appointed by court to relation thereto, according to law and the
the provisions of a settle estate of a will of the testator or the provisions of
will or written decedent instrument or order under which he is
instrument appointed.
May be exempted c. Accounting
from filing of bond He will render upon oath at least once a
Not exempted from year until his trust is fulfilled, unless he is
if requested by
filing of bond even if excused in any year by court, a true
a. testator, and
such exemption is account of the property in his hands and of
b. all persons
provided in the will; the management and disposition thereof,
beneficially
However, bond is only and will render such other accounts as the
interested in
conditioned upon court may order.
the trust,
payment of debts d. Settlement of account and delivery of
being of full
[Sec. 2, Rule 81] estate
age
[Sec. 5, Rule 98] At expiration of his trust, he will settle his
account in court and pay over and deliver
A trustee, like an executor/administrator, holds all the estate remaining in his hands, or due
an office of trust, particularly when the trustee from him on such settlement, to the person
acts as such under judicial authority or persons entitled thereto.
[Trusteeship of the Minors Benigno, Angela [Sec. 6, Rule 98]
and Antonio Perez y Tuazon, G.R. Nos.
L16185-86 (1962)] Effect of neglect to file bond
A trustee who neglects to file a bond shall be
The duties of an executor/administrator are considered to have declined or resigned the
however, fixed and/or limited by law whereas trust [Sec. 5, Rule 98]
those of the trustee of an express trust are,
usually governed by the intention of the trustor 3. Requisites for the Removal
or the parties, if established by contract.
[Araneta v. Perez, G.R. No. L-16962 (1962)]
and Resignation of a Trustee
Requisites for the Removal of a Trustee
A trustee does not acquire ownership of the
a. Petition by parties beneficially interested
assets entrusted to him but merely manages it
b. Due notice to the trustee
for the benefit of the beneficiary. [Home
c. Hearing
Guaranty Corp. v. R-II Builders, Inc., G.R. No.
d. Presence of any of the grounds of removal
192649 (2011)]
[Sec. 8, Rule 98]

2. Conditions of the Bond Requisites Resignation of a Trustee

a. Trustee resigns
The following conditions shall be deemed to be b. The court deems it proper to allow the
part of the bond: resignation [Sec. 8, Rule 98]
a. Inventory
The trustee will make and return to court,
4. Grounds for the Removal and
at such time as it may order, a true
inventory of all real and personal estate Resignation of a Trustee
belonging to him as trustee, which at time
of the making of such inventory shall have Grounds for removal
come to his possession or knowledge. a. Removal appears essential in the interests
b. Faithful management of petitioners
b. Trustee is

Page 303 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
ii. To issue a birth certificate which
shall not bear any notation that it is
new or amended;
iii. To seal the original birth certificate
in the civil registry records which
can be opened only upon order of
the court which issued the adoption
decree; and d. to submit to the
issuing court proof of compliance
with the foregoing within 30 days
from receipt of decree
[Sec. 16; Secs. 13-14, R.A. 8552]
a. Effects of Adoption
1. Parental Authority
Except in cases where the biological parent is
the spouse of the adopter, all legal ties
between the biological parent(s) and the
adoptee shall be severed and the same shall
then be vested on the adopter(s)
[Sec. 16]
2. Legitimacy
The adoptee shall be considered as the
legitimate son/daughter of the adopter(s) for all
intents and purposes [Sec. 17]
3. Succession
In legal and intestate succession, the
adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s)
had left a will, the law on testamentary
succession shall govern. [Sec. 18]
Even if emancipation terminates parental
authority, the adoptee is still considered a
legitimate child of the adopter with all the rights
of a legitimate child such as: (1) to bear the
surname of the father and the mother; (2) to
receive support from their parents; and (3) to
be entitled to the legitime and other
successional rights
[In Re : Petition for Adoption of Lim, G.R. No.
168992-93 (2009)]
Page 312 of 525
REMEDIAL LAW
b. Instances When Adoption May
be Rescinded
Upon petition of the adoptee, with the
assistance of the DSWD, as guardian or
counsel, if a minor or if over 18 years of age but
is incapacitated.
Grounds for Rescission
a. Repeated physical and verbal
maltreatment by the adopter(s) despite
having undergone counseling;
b. Attempt on the life of the adoptee;
c. Sexual assault or violence; or
d. Abandonment and failure to comply with
parental obligations
Adoption, being in the best interest of the
child, shall not be subject to rescission by
the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in
Art. 919 of the Civil Code
[Sec. 19]
c. Effects of Rescission of
Adoption
Restoration of parental authority or legal
custody if adoptee a minor or is
incapacitated
If the petition is granted, the parental authority
of the adoptee’s biological parent(s), if known,
or the legal custody of the DSWD, shall be
restored if the adoptee is still a minor or
incapacitated.
Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other is
extinguished
Restoration of original birth certificate
The court shall order the Civil Registrar to
cancel the amended certificate or birth of the
adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status
prior to adoption, but only as of the date of
judgment of judicial judicial rescission
U.P. LAW BOC SPECIAL PROCEEDINGS
Vested rights acquired prior to rescission shall
be respected.
The foregoing effects of rescission is without
prejudice to the penalties imposable under the
RPC if the criminal acts are properly proven.
[Sec. 20]
3. Inter-country Adoption
Procedure
[A.M. 02-6-02-SC]
An alien or a Filipino citizen permanently
residing abroad shall allege in the petition:
a. That he is at least 27 years old and at
least 16 years older than the child to be
adopted, at the time of application,
unless the adopter is the parent by
nature of the child or the spouse of
such parent;
b. If married, the name of the spouse who
must be joined as co-petitioner except
when the adoptee is the legitimate child
of his spouse;
c. That he has the capacity to act and
assume all rights and responsibilities of
parental authority under his national
laws, and has undergone appropriate
counseling from an accredited
counselor in his country;
d. That he has not been convicted of a
crime involving moral turpitude;
e. That he is eligible to adopt under his
national law;
f. That he is in a position to provide
proper care and support;
g. That he agrees to uphold the basic
rights of the child under Philippine laws,
and UNCRC, and to abide by the rules
and regulations under R.A. 8043;
h. That he comes from a country with
whom the Philippines has diplomatic
relations and whose government
maintains a similarly authorized and
accredited agency and that adopted is
allowed under his national laws; and
i. That he possesses all the qualifications
and none of the disqualifications
provided in R.A. 8043 and in other
applicable Philippine laws
Page 313 of 525
REMEDIAL LAW
[Sec. 30; Sec. 9, R.A. 8043]
↓
Annexes to the petition written and
translated in the English language:
a. Birth certificate of petitioner;
b. Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c. Sworn statement of consent of
petitioner’s biological or adopted
children above 10 years old;
d. Physical, medical and psychological
evaluation of the petitioner certified by
a duly licensed physician and
psychologist;
e. ITRs or any authentic document
showing the current financial capability
of the petitioner;
f. Police clearance of petitioner issued
within 6 months before the filing of the
petition;
g. Character reference from the local
church/minister, the petitioner’s
employer and a member of the
immediate community who have known
the petitioner for at least 5 years;
h. Full body postcard-size pictures of
petitioner and his immediate family
taken at least 6 months before filing the
petition
[Sec. 31; Sec. 10, R.A. 8043]
↓
The court, after finding that the petition is
sufficient in form and substance and a
proper case for inter-country adoption, shall
immediately transmit the petition to the Inter-
Country Adoption Board for appropriate
action
[Sec. 32]
The Inter-Country Adoption Board shall
issue a clearance that the child cannot be
adopted locally, and when the Board is
ready to transmit the child to the authorized
and accredited inter-country adoption
agency, the adoptive parent(s) shall
personally fetch the child in the Philippines.
A supervised trial custody shall be done for
a period of 6 months from the time of
placement of the child to the adoptive
U.P. LAW BOC SPECIAL PROCEEDINGS
parents, to be facilitated by the inter-country
adoption agency where the adoptive
parents filed their application. Only after the
lapse of 6 months will an adoption decree
issue in the said country and a copy of which
shall be sent to the Board
[Sec. 11, R.A. 8043]
a. When Allowed
Only to be used as a last resort and in the best
interest of the child when the Inter-country
Adoption Board has exhausted all possibilities
for adoption under the Family Code.
[Sec. 7, R.A. 8043]
Family matching
No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the
child cannot be adopted locally.
[Sec. 11, R.A. 8043]
Only a child legally available for domestic
adoption may be the subject of inter-country
adoption.
[Sec. 29; Sec. 8, R.A. 8043]
b. Functions of the Regional Trial
Court
1. Receive the application
2. Assess the qualification of the prospective
adopter
3. Refer its findings, if favorable, to the Inter-
Country Adoption Board
[De Leon 340, 2015]
c. ‘Best Interest of the Child’
Standard
Inter-country adoption is allowed only when the
same shall prove beneficial to the child’s
interest and shall serve and protect his/her
fundamental rights. [De Leon 340, 2015]
Page 314 of 525
REMEDIAL LAW
M. WRIT OF HABEAS
CORPUS
Coverage
Extends to all cases of illegal confinement or
detention by which any person is deprived of
his liberty, or by which the rightful custody of
any person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Note: The privilege of the writ of habeas corpus
can only be suspended in cases of rebellion or
invasion and when public interest requires it.
[Sec. 15, Art. III, Constitution]
Rationale
The underlying rationale is not the illegality of
the restraint but the right of custody [Tijing v.
CA, G.R. No. 125901 (2001)]
Purpose
The purpose of the writ is to inquire into all
manner of involuntary restraint, and to relieve
a person therefrom if such restraint is illegal
1. To obtain immediate relief from illegal
confinement
2. To liberate those who may be imprisoned
without sufficient cause
3. To deliver them from unlawful custody
[Velasco v. CA, G.R. No. 118644 (1995)]
Concept of restraint
Actual and effective and not merely nominal or
moral restraint is required. [Zagala v. Illustre,
G.R. No. L-23999 (1926)]
Restrictive custody is, at best, nominal restraint
which is beyond the ambit of habeas corpus. It
is neither actual nor effective restraint that
would call for the grant of the remedy prayed
for. It is a permissible precautionary measure
to assure the PNP authorities that the police
officers concerned are always accounted for
[Ampatuan v Judge Macaraig, G.R. No.
182497 (2010)]
However, actual physical restraint is not always
required; any restraint which will prejudice
U.P. LAW BOC SPECIAL PROCEEDINGS
freedom of action is sufficient [Moncupa v.
Enrile, G.R. No. L-63345 (1986)]
Strict compliance with the technical
requirements for a habeas corpus petition as
provided in the Rules of Court may be
dispensed with where the allegations in the
application are sufficient to make out a case for
habeas corpus. Indeed, in the landmark case
of Villavicencio v. Lukban, 39 Phil. 778, the
Supreme Court declared that it is the duty of a
court to issue the writ if there is evidence that a
person is unjustly restrained of his liberty within
its jurisdiction even if there is no application
therefor. A petition which is deficient in form,
such as a petition-letter, may be entertained so
long as its allegations sufficiently make out a
case for habeas corpus. [Fletcher v. Director of
BuCor, UDK- 14071, (2009)].
Who may issue the writ
1. The SC, CA, and RTC have concurrent
jurisdiction to issue WHC [Sec. 2, Rule 102]
2. Family courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the writ in relation to custody of
minors [Sec. 20, AM 03-04-04-SC, Re
Proposed Rule on Custody of Minors and
Writ of Habeas corpus in Relation to
Custody of Minors]
Writs issued by the Supreme Court, the Court
of Appeals, and the Sandiganbayan are
enforceable anywhere in the Philippines.
Those issued by the RTC and MTC are
enforceable only within the judicial region to
which they belong.
Even though the writ of habeas corpus was
issued by the CA but it designated the RTC as
the court to which the writ is made returnable,
the decision of the RTC is its own and not that
of the CA. [In re Datukan Malang Salibo,
(2015)].
Temporary release may constitute restraint
1. Where a person continued to be unlawfully
denied one or more of his constitutional
rights
2. Where there is present denial of due
process
Page 315 of 525
REMEDIAL LAW
3. Where the restraint is not merely
involuntary but appear to be unnecessary
4. Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa
v. Enrile, G.R. No. L-63345 (1986)]
When detained person released
General rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot
Exception: Doctrine of Constructive
Restraint – Restraints attached to release
which precludes freedom of action, in which
case the court can still inquire into the nature of
the involuntary restraint
Nature
Not a suit between private parties, but an
inquisition by the government, at the
suggestion and instance of an individual, but
still in the name and capacity of the sovereign.
There can be no judgment entered against
anybody since there is no real plaintiff and
defendant [Alimpos v. CA, G.R. Nos. L-50405-
06 (1981)]
Proceedings in habeas corpus are separate
and distinct from the main case from which the
proceedings spring. [Ching v. Insular Collector
of Customs, G.R. No. 10972 (1916)]
The question whether one shall be imprisoned
is always distinct from the question of whether
the individual shall be convicted or acquitted of
the charge on which he is tried, and therefore
these questions are separate, and may be
decided in different courts [Herrera, citing 4
Cranch, 75, 101]
The writ of habeas corpus is not designed to
interrupt the orderly administration of the laws
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose of relieving from illegal restraint
[People v. Valte, G.R. No. L-18760 (1922)]
Proceedings on habeas corpus to obtain
release from custody under final judgment
being in the nature of collateral attack, the writ
U.P. LAW BOC SPECIAL PROCEEDINGS
deals only with such radical defects as to
render the proceeding or judgment absolutely
void, and cannot have the effect of appeal, writ
of error or certiorari, for the purpose of
reviewing mere error and irregularities in the
proceedings [People v. Valte, G.R. No. L-
18760 (1922)]
Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the judge
in order that the cause of his detention may be
inquired into [Caballes v. CA, G.R. No. 163108
(2005)]
WHC may be used with writ of certiorari for
purposes of review
The two writs may be ancillary to each other
where necessary to give effect to the
supervisory powers of higher courts [Galvez v.
CA, G.R. No. 114046 (1994)]
WHC reaches the body and the jurisdictional
matters, but not the record. Writ of certiorari
reaches the record, but not the body [Galvez v.
CA, G.R. No. 114046 (1994)]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases [Herrera, citing
39 C.J.S. Habeas corpus §13, 486-488]
Overview of Procedure
Application for the writ by petition [Sec. 3,
Rule 102]
↓ he is so imprisoned or restrained; or, if both
Grant or disallowance of writ and issuance
by court or judge [Secs. 4-5, Rule 102]
↓ appellation, and the person who is served
Clerk of court issues the writ under the seal
of court (in case of emergency, by the judge
himself) [Sec. 5, Rule 102]
Note: ROC (Secs. 5 and 12) does not fix the
periods but uses “forthwith”. The special
rules for WHC relating to minors designates
periods. However, in practice and in
jurisprudence, the writ must be issued within
24 hours.
Page 316 of 525
REMEDIAL LAW
↓
Service
a. By whom: sheriff or other proper
officer BUT in case of emergency
where the judge himself issues the
writ, the judge may depute any
person to serve the writ [Sec. 5,
Rule 102]
b. How: leaving the original with the
person to whom it is directed and
preserving a copy on which to make
return
c. To whom: officer in custody or any
officer (when in custody of person
other than an officer) [Sec. 7, Rule
102]
↓
Writ executed and returned [Sec. 8, Rule
102]
↓
Hearing by the court (upon return) [Sec. 12,
Rule 102]
↓
Execution of the writ
a. Officer brings the person before the
judge, and
b. Officer makes the due return [Sec.
8, Rule 102]
1. Contents of the Petition
Signed and verified petition must set forth:
a. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty
b. The officer or name of the person by whom
are unknown or uncertain, such officer or
person may be described by an assumed
with the writ shall be deemed the person
intended
c. The place where he is so imprisoned or
restrained, if known
d. Copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency of
the remedy
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

If imprisonment or restraint is without any legal for what cause, and by what authority such
authority, such fact shall appear [Sec. 3, Rule transfer was made
102]
When the return considered evidence, and
Who may apply when only a plea
a. The party for whose relief it is intended, or Custody under
b. By some person on his behalf [Sec. 3, Rule warrant of Restraint is by
102] commitment in private authority
pursuance of law
Some person – any person who has a legally
The return shall be
justified interest in the freedom of the person
considered only as a
whose liberty is restrained or who shows some The return shall be
plea of the facts
authorization to make the application [Velasco considered prima
v. CA, G.R. No. 118644 (1995)] therein set forth,
facie evidence of
and the party
the cause of
claiming the custody
2. Contents of the Return restraint
must prove such
Form facts
a. Written and signed by the person who [Sec. 13, Rule 102]
makes it
b. Sworn by the person who makes it if 3. Peremptory Writ and
1. The prisoner is not produced, and Preliminary Citation
2. In all other cases, unless the return is
made and signed by a sworn public Distinction between the writ and the
officer in his official capacity [Sec. 11, privilege of the writ
Rule 102]
The writ of habeas corpus is a process that is
tantamount to a summons to appear before the
By whom made: The person or officer who has court issuing it for an inquiry into the cause of
the person under restraint, or in whose custody the restraint complained of. Its issuance does
the prisoner is found [Sec. 10, Rule 102] not amount to an adjudication of the issue of
legality of the restraint. It is just an order to
Contents appear and explain.
a. Whether he has or has not the party in his
custody or power, or under restraint The privilege of the writ, on the other hand, is
b. If he has the party in his custody or power, the writ issued to enforce the court’s decision
or under restraint, the authority and the true on the merits finding the restraint illegal and
and whole cause thereof, set forth at large, directing the release from custody of the
with a copy of the writ, order execution, or detained individual.
other process, if any, upon which the party
is held Preliminary citation Peremptory writ
c. If the party is in his custody or power or is
A written document
restrained by him, and is not produced,
which unconditionally
particularly the nature and gravity of the
Requires the commands the
sickness or infirmity of such party by
respondent to appear respondent to have
reason of which he cannot, without danger,
and show cause why the body of the
be bought before the court or judge
the peremptory writ detained person
d. If he has had the party in his custody or
power, or under restraint, and has should not be granted before the court at a
transferred such custody or restraint to time and place
another, particularly to whom, at what time, therein specified

Page 317 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
[Lee Yick Hon v. Collector of Customs, G.R.
No. L-16779 (1921)]
The order to present an individual before the
court is a preliminary step in the hearing of the
petition. This order is NOT a ruling on the
propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the
order to produce the body is not equivalent to
a grant of the writ of habeas corpus. [In the
Matter of the Petition for Habeas corpus of
Alejano v. Cabuay, G.R. No. 160792 (2005)]
Quantum of proof for the issuance or non-
issuance of the privilege
When respondents' defense to a petition for
habeas corpus is that they released the
detainees for whom the petition was filed, but
the allegation of release is disputed by
petitioners, and it is not denied that the
detainees have not been seen or heard from
since their supposed release, the
respondents have the burden in law of
proving by clear and convincing evidence
that they released the detainees. [Dizon v.
Eduardo, G.R. No. L-59118 (1988)]
4. When Not Proper or
Applicable
When WHC is NOT proper
a. For asserting or vindicating the denial of
right to bail [Enrile v. Salazar, G.R. No.
92163 (1990)]
b. Where the petitioner has the remedy of
appeal or certiorari [Galvez v. CA, G.R. No.
114046 (1994)]
c. For correcting errors in the appreciation of
facts or law [Sotto v. Director of Prisons,
G.R. No. L-18871 (1962)
Exception: If error affects court’s
jurisdiction making the judgment void
[Herrera]
d. For enforcing marital rights including
venture and living in conjugal dwelling
[Ilusorio v. Bildner, G.R. No. 139789
(2001)]
e. When restrained under a lawful process or
order of the court, petitioner’s remedy is to
file a motion to quash the information or the
Page 318 of 525
REMEDIAL LAW
warrant of arrest [In the matter of the
petition for habeas corpus of Datukan
Malang Salibo v. Warden, G.R. No. 197597
(2015)]
f. When detention was by virtue of a final
judgment, the writ of habeas corpus may
not issue [Adonis v. Tesoro, G.R. No.
182855 (2013)]
When WHC is proper
a. Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v.
Galang, G.R. No. L-18365 (1963)]
b. Where the court has no jurisdiction to
impose the sentence [Banayo v. President
of San Pablo, G.R. No. 1430 (1903)]
c. Where a person is deprived of liberty due
to mistaken identity. In such cases, the
person is not under any lawful process and
is continuously being illegally detained. [In
re Datukan Malang Salibo, (2015)].
5. When Writ Disallowed or
Discharged
a. When restraint is by lawful order or process
[Mangila v. Judge Pangilinan, G.R. No.
160739 (2013); Adonis v. Tesoro, G.R. No.
182855 (2013); Ampatuan v. Judge
Macaraig, G.R. No. 182497 (2010)]
b. The person alleged to be restrained of his
liberty is in the custody of an officer
1. Under process issued by the court or
judge or by virtue of a judgment or
order of a court of record, and
2. Said court had jurisdiction to issue the
process, render the judgment or make
the order, or
c. Jurisdiction appears after the writ is
allowed despite any informality or defect in
the process, judgment, or order [Sec. 4,
Rule 102]
d. If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with
an offense punishable by death [Sec. 14,
Rule 102]
e. Where the person in whose behalf the writ
is sought is out on bail [Mangila v.
Pangilinan, G.R. No. 160739 (2013)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

f. Even if the arrest of a person is illegal, the 6. Distinguished From Writ of

following supervening events may bar
release Amparo and Habeas Data
1. Issuance of a judicial process [Sayo v.
Chief of Police of Manila, G.R. No. L- Writ of
Writ of Writ of habeas
2128 (1948)] habeas
amparo data
corpus
Judicial process is defined as a writ, Designed to
warrant, subpoena, or other formal protect the
writing issued by authority of law image, privacy,
[Malaloan v. CA, G.R. No. 104879 honor,
(1994)] information,
Extends to
2. The filing of a complaint before a trial and freedom of
all cases of
court which issued a hold departure information of
illegal
order and denied motion to dismiss and an individual,
confineme
to grant bail [Velasco v. CA, G.R. No. and to provide
nt or
118644(1995)] ONLY covers a forum to
detention
3. Filing of an information for the offense extralegal enforce one’s
(deprivatio
for which the accused is detained bars killings and right to the truth
n of liberty),
the availability of WHC [Velasco v. CA, enforced and to
or where
G.R. No. 118644 (1995)] disappearanc informational
rightful
es or threats privacy but in
custody is
The writ of habeas corpus cannot be availed of thereof relation to a
withheld
in cases of detention by virtue of a judicial threat to one’s
process or valid judgment. Exceptions where from
right to privacy
the writ may be availed of as a post- person
in regard to life,
conviction remedy: entitled
security, and
a. There has been a deprivation of a thereto
liberty [Vivares
constitutional right resulting in the restraint v. St. Theresa’s
of a person; College, G.R.
b. The court had no jurisdiction to impose the No. 202666
sentence; or (2014)]
c. An excessive penalty has been imposed,
as such sentence is void as to such excess.
See Comparative Table at the end of Writ of
[Harden v. Director of Prisons, 81 Phil. 741;
Habeas Data for a more comprehensive list of
Go v. Dimagiba, G.R. No. 151876, (2005)].
distinctions.
What is to be inquired into is the legality of a
person’s detention as of, at the earliest, the 7. Writ of Habeas Corpus In
filing of the application for the writ of habeas Relation To Custody of
corpus, for even if the detention is at in its Minors [A.M. No. 03-04-04-SC]
inception illegal, it may no longer be illegal at
the time of the filing of the application, by
Applicability
reason of supervening events [Ampatuan v.
Rule applies to petitions for custody of minors
Macaraig, G.R. 182497 (2010)]
and writs of habeas corpus in relation thereto.
The Rules of Court applies suppletorily [Sec. 1]

In custody cases involving minors, the writ of

habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.

Page 319 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
The grant of the writ depends on the
concurrence of the following requisites: (1) that
the petitioner has the right of custody over the
minor; (2) that the rightful custody over the
minor is being withheld from the petitioner by
the respondents; and (3) that it is to the best
interest of the minor concerned to be in the
custody of petitioner and not that of the
respondents
[Masbata v. Relucio, G.R. No. 235498 (2018)
Who may file
Any person claiming rightful custody of a minor
[Sec. 2]
Where filed; where enforceable
A verified petition shall be filed with the Family
Court of the province or city where the
petitioner resides or where the minor may be
found, or with the CA or the SC.
If filed with the Family Court where the
petitioner resides, or where the minor may be
found, the writ is enforceable within the judicial
region where the Family Court belongs.
If filed with the CA or the SC, or with any of its
members, the writ shall be enforceable
anywhere in the Philippines. Upon issuance of
the writ by the SC or CA, it may be made
returnable to a Family Court or to any regular
court within the region where the petitioner
resides or where the minor may be found.
If the presiding judge of the Family Court is
absent, then the petition may be filed with a
regular court, provided that the regular court
shall refer the case to the Family Court as soon
as the presiding judge returns to duty.
If there are no Family Courts in the area, then
the petition may be filed with the regular courts
The writ is returnable to the Family Court, or to
any regular court within the judicial region
where the petitioner resides or where the minor
may be found, for hearing and decision on the
merits.
Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
Page 320 of 525
REMEDIAL LAW
Considering that the writ is made enforceable
within a judicial region, petitions for the
issuance of the writ of habeas corpus, whether
they be filed under Rule 102 or pursuant to
Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed with any of the proper RTCs
within the judicial region where enforcement
thereof is sought [Tujan-Militante v. Cada-
Deapera, G.R. No. 210636 (2014)]
Procedure
A verified petition is filed alleging:
a. The personal circumstances of the
petitioner and of the respondent;
b. The name, age and present
whereabouts of the minor and his or her
relationship to the petitioner and the
respondent;
c. The material operative facts constituting
deprivation of custody; and
d. Such other matters which are relevant to
the custody of the minor
The verified petition shall be accompanied
by a certificate against forum shopping,
which the petitioner must sign personally
[Sec. 4]
↓
If sufficient in form and substance, court
shall direct the clerk of court to issue
summons, which shall be issued together
with a copy of the petition personally on
respondent [Sec. 5]
↓
Within 5 days the respondent shall file a
verified answer [Sec. 7]
Note: A motion to dismiss 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]
↓
Upon filing of answer or expiration of period
to file it, court may order a social worker to
make a case study of the minor and the
parties and to submit a report and
recommendation at least 3 days before the
scheduled pre-trial [Sec. 8]
U.P. LAW BOC SPECIAL PROCEEDINGS
ii. To issue a birth certificate which
shall not bear any notation that it is
new or amended;
iii. To seal the original birth certificate
in the civil registry records which
can be opened only upon order of
the court which issued the adoption
decree; and d. to submit to the
issuing court proof of compliance
with the foregoing within 30 days
from receipt of decree
[Sec. 16; Secs. 13-14, R.A. 8552]
a. Effects of Adoption
1. Parental Authority
Except in cases where the biological parent is
the spouse of the adopter, all legal ties
between the biological parent(s) and the
adoptee shall be severed and the same shall
then be vested on the adopter(s)
[Sec. 16]
2. Legitimacy
The adoptee shall be considered as the
legitimate son/daughter of the adopter(s) for all
intents and purposes [Sec. 17]
3. Succession
In legal and intestate succession, the
adopter(s) and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s)
had left a will, the law on testamentary
succession shall govern. [Sec. 18]
Even if emancipation terminates parental
authority, the adoptee is still considered a
legitimate child of the adopter with all the rights
of a legitimate child such as: (1) to bear the
surname of the father and the mother; (2) to
receive support from their parents; and (3) to
be entitled to the legitime and other
successional rights
[In Re : Petition for Adoption of Lim, G.R. No.
168992-93 (2009)]
Page 312 of 525
REMEDIAL LAW
b. Instances When Adoption May
be Rescinded
Upon petition of the adoptee, with the
assistance of the DSWD, as guardian or
counsel, if a minor or if over 18 years of age but
is incapacitated.
Grounds for Rescission
a. Repeated physical and verbal
maltreatment by the adopter(s) despite
having undergone counseling;
b. Attempt on the life of the adoptee;
c. Sexual assault or violence; or
d. Abandonment and failure to comply with
parental obligations
Adoption, being in the best interest of the
child, shall not be subject to rescission by
the adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in
Art. 919 of the Civil Code
[Sec. 19]
c. Effects of Rescission of
Adoption
Restoration of parental authority or legal
custody if adoptee a minor or is
incapacitated
If the petition is granted, the parental authority
of the adoptee’s biological parent(s), if known,
or the legal custody of the DSWD, shall be
restored if the adoptee is still a minor or
incapacitated.
Reciprocal rights and obligations of the
adopter(s) and the adoptee to each other is
extinguished
Restoration of original birth certificate
The court shall order the Civil Registrar to
cancel the amended certificate or birth of the
adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status
prior to adoption, but only as of the date of
judgment of judicial judicial rescission
U.P. LAW BOC SPECIAL PROCEEDINGS
Vested rights acquired prior to rescission shall
be respected.
The foregoing effects of rescission is without
prejudice to the penalties imposable under the
RPC if the criminal acts are properly proven.
[Sec. 20]
3. Inter-country Adoption
Procedure
[A.M. 02-6-02-SC]
An alien or a Filipino citizen permanently
residing abroad shall allege in the petition:
a. That he is at least 27 years old and at
least 16 years older than the child to be
adopted, at the time of application,
unless the adopter is the parent by
nature of the child or the spouse of
such parent;
b. If married, the name of the spouse who
must be joined as co-petitioner except
when the adoptee is the legitimate child
of his spouse;
c. That he has the capacity to act and
assume all rights and responsibilities of
parental authority under his national
laws, and has undergone appropriate
counseling from an accredited
counselor in his country;
d. That he has not been convicted of a
crime involving moral turpitude;
e. That he is eligible to adopt under his
national law;
f. That he is in a position to provide
proper care and support;
g. That he agrees to uphold the basic
rights of the child under Philippine laws,
and UNCRC, and to abide by the rules
and regulations under R.A. 8043;
h. That he comes from a country with
whom the Philippines has diplomatic
relations and whose government
maintains a similarly authorized and
accredited agency and that adopted is
allowed under his national laws; and
i. That he possesses all the qualifications
and none of the disqualifications
provided in R.A. 8043 and in other
applicable Philippine laws
Page 313 of 525
REMEDIAL LAW
[Sec. 30; Sec. 9, R.A. 8043]
↓
Annexes to the petition written and
translated in the English language:
a. Birth certificate of petitioner;
b. Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c. Sworn statement of consent of
petitioner’s biological or adopted
children above 10 years old;
d. Physical, medical and psychological
evaluation of the petitioner certified by
a duly licensed physician and
psychologist;
e. ITRs or any authentic document
showing the current financial capability
of the petitioner;
f. Police clearance of petitioner issued
within 6 months before the filing of the
petition;
g. Character reference from the local
church/minister, the petitioner’s
employer and a member of the
immediate community who have known
the petitioner for at least 5 years;
h. Full body postcard-size pictures of
petitioner and his immediate family
taken at least 6 months before filing the
petition
[Sec. 31; Sec. 10, R.A. 8043]
↓
The court, after finding that the petition is
sufficient in form and substance and a
proper case for inter-country adoption, shall
immediately transmit the petition to the Inter-
Country Adoption Board for appropriate
action
[Sec. 32]
The Inter-Country Adoption Board shall
issue a clearance that the child cannot be
adopted locally, and when the Board is
ready to transmit the child to the authorized
and accredited inter-country adoption
agency, the adoptive parent(s) shall
personally fetch the child in the Philippines.
A supervised trial custody shall be done for
a period of 6 months from the time of
placement of the child to the adoptive
U.P. LAW BOC SPECIAL PROCEEDINGS
parents, to be facilitated by the inter-country
adoption agency where the adoptive
parents filed their application. Only after the
lapse of 6 months will an adoption decree
issue in the said country and a copy of which
shall be sent to the Board
[Sec. 11, R.A. 8043]
a. When Allowed
Only to be used as a last resort and in the best
interest of the child when the Inter-country
Adoption Board has exhausted all possibilities
for adoption under the Family Code.
[Sec. 7, R.A. 8043]
Family matching
No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the
child cannot be adopted locally.
[Sec. 11, R.A. 8043]
Only a child legally available for domestic
adoption may be the subject of inter-country
adoption.
[Sec. 29; Sec. 8, R.A. 8043]
b. Functions of the Regional Trial
Court
1. Receive the application
2. Assess the qualification of the prospective
adopter
3. Refer its findings, if favorable, to the Inter-
Country Adoption Board
[De Leon 340, 2015]
c. ‘Best Interest of the Child’
Standard
Inter-country adoption is allowed only when the
same shall prove beneficial to the child’s
interest and shall serve and protect his/her
fundamental rights. [De Leon 340, 2015]
Page 314 of 525
REMEDIAL LAW
M. WRIT OF HABEAS
CORPUS
Coverage
Extends to all cases of illegal confinement or
detention by which any person is deprived of
his liberty, or by which the rightful custody of
any person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Note: The privilege of the writ of habeas corpus
can only be suspended in cases of rebellion or
invasion and when public interest requires it.
[Sec. 15, Art. III, Constitution]
Rationale
The underlying rationale is not the illegality of
the restraint but the right of custody [Tijing v.
CA, G.R. No. 125901 (2001)]
Purpose
The purpose of the writ is to inquire into all
manner of involuntary restraint, and to relieve
a person therefrom if such restraint is illegal
1. To obtain immediate relief from illegal
confinement
2. To liberate those who may be imprisoned
without sufficient cause
3. To deliver them from unlawful custody
[Velasco v. CA, G.R. No. 118644 (1995)]
Concept of restraint
Actual and effective and not merely nominal or
moral restraint is required. [Zagala v. Illustre,
G.R. No. L-23999 (1926)]
Restrictive custody is, at best, nominal restraint
which is beyond the ambit of habeas corpus. It
is neither actual nor effective restraint that
would call for the grant of the remedy prayed
for. It is a permissible precautionary measure
to assure the PNP authorities that the police
officers concerned are always accounted for
[Ampatuan v Judge Macaraig, G.R. No.
182497 (2010)]
However, actual physical restraint is not always
required; any restraint which will prejudice
U.P. LAW BOC SPECIAL PROCEEDINGS
freedom of action is sufficient [Moncupa v.
Enrile, G.R. No. L-63345 (1986)]
Strict compliance with the technical
requirements for a habeas corpus petition as
provided in the Rules of Court may be
dispensed with where the allegations in the
application are sufficient to make out a case for
habeas corpus. Indeed, in the landmark case
of Villavicencio v. Lukban, 39 Phil. 778, the
Supreme Court declared that it is the duty of a
court to issue the writ if there is evidence that a
person is unjustly restrained of his liberty within
its jurisdiction even if there is no application
therefor. A petition which is deficient in form,
such as a petition-letter, may be entertained so
long as its allegations sufficiently make out a
case for habeas corpus. [Fletcher v. Director of
BuCor, UDK- 14071, (2009)].
Who may issue the writ
1. The SC, CA, and RTC have concurrent
jurisdiction to issue WHC [Sec. 2, Rule 102]
2. Family courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the writ in relation to custody of
minors [Sec. 20, AM 03-04-04-SC, Re
Proposed Rule on Custody of Minors and
Writ of Habeas corpus in Relation to
Custody of Minors]
Writs issued by the Supreme Court, the Court
of Appeals, and the Sandiganbayan are
enforceable anywhere in the Philippines.
Those issued by the RTC and MTC are
enforceable only within the judicial region to
which they belong.
Even though the writ of habeas corpus was
issued by the CA but it designated the RTC as
the court to which the writ is made returnable,
the decision of the RTC is its own and not that
of the CA. [In re Datukan Malang Salibo,
(2015)].
Temporary release may constitute restraint
1. Where a person continued to be unlawfully
denied one or more of his constitutional
rights
2. Where there is present denial of due
process
Page 315 of 525
REMEDIAL LAW
3. Where the restraint is not merely
involuntary but appear to be unnecessary
4. Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa
v. Enrile, G.R. No. L-63345 (1986)]
When detained person released
General rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot
Exception: Doctrine of Constructive
Restraint – Restraints attached to release
which precludes freedom of action, in which
case the court can still inquire into the nature of
the involuntary restraint
Nature
Not a suit between private parties, but an
inquisition by the government, at the
suggestion and instance of an individual, but
still in the name and capacity of the sovereign.
There can be no judgment entered against
anybody since there is no real plaintiff and
defendant [Alimpos v. CA, G.R. Nos. L-50405-
06 (1981)]
Proceedings in habeas corpus are separate
and distinct from the main case from which the
proceedings spring. [Ching v. Insular Collector
of Customs, G.R. No. 10972 (1916)]
The question whether one shall be imprisoned
is always distinct from the question of whether
the individual shall be convicted or acquitted of
the charge on which he is tried, and therefore
these questions are separate, and may be
decided in different courts [Herrera, citing 4
Cranch, 75, 101]
The writ of habeas corpus is not designed to
interrupt the orderly administration of the laws
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose of relieving from illegal restraint
[People v. Valte, G.R. No. L-18760 (1922)]
Proceedings on habeas corpus to obtain
release from custody under final judgment
being in the nature of collateral attack, the writ
U.P. LAW BOC SPECIAL PROCEEDINGS
deals only with such radical defects as to
render the proceeding or judgment absolutely
void, and cannot have the effect of appeal, writ
of error or certiorari, for the purpose of
reviewing mere error and irregularities in the
proceedings [People v. Valte, G.R. No. L-
18760 (1922)]
Habeas corpus is a summary remedy. It is
analogous to a proceeding in rem when
instituted for the sole purpose of having the
person of restraint presented before the judge
in order that the cause of his detention may be
inquired into [Caballes v. CA, G.R. No. 163108
(2005)]
WHC may be used with writ of certiorari for
purposes of review
The two writs may be ancillary to each other
where necessary to give effect to the
supervisory powers of higher courts [Galvez v.
CA, G.R. No. 114046 (1994)]
WHC reaches the body and the jurisdictional
matters, but not the record. Writ of certiorari
reaches the record, but not the body [Galvez v.
CA, G.R. No. 114046 (1994)]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases [Herrera, citing
39 C.J.S. Habeas corpus §13, 486-488]
Overview of Procedure
Application for the writ by petition [Sec. 3,
Rule 102]
↓ he is so imprisoned or restrained; or, if both
Grant or disallowance of writ and issuance
by court or judge [Secs. 4-5, Rule 102]
↓ appellation, and the person who is served
Clerk of court issues the writ under the seal
of court (in case of emergency, by the judge
himself) [Sec. 5, Rule 102]
Note: ROC (Secs. 5 and 12) does not fix the
periods but uses “forthwith”. The special
rules for WHC relating to minors designates
periods. However, in practice and in
jurisprudence, the writ must be issued within
24 hours.
Page 316 of 525
REMEDIAL LAW
↓
Service
a. By whom: sheriff or other proper
officer BUT in case of emergency
where the judge himself issues the
writ, the judge may depute any
person to serve the writ [Sec. 5,
Rule 102]
b. How: leaving the original with the
person to whom it is directed and
preserving a copy on which to make
return
c. To whom: officer in custody or any
officer (when in custody of person
other than an officer) [Sec. 7, Rule
102]
↓
Writ executed and returned [Sec. 8, Rule
102]
↓
Hearing by the court (upon return) [Sec. 12,
Rule 102]
↓
Execution of the writ
a. Officer brings the person before the
judge, and
b. Officer makes the due return [Sec.
8, Rule 102]
1. Contents of the Petition
Signed and verified petition must set forth:
a. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty
b. The officer or name of the person by whom
are unknown or uncertain, such officer or
person may be described by an assumed
with the writ shall be deemed the person
intended
c. The place where he is so imprisoned or
restrained, if known
d. Copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency of
the remedy
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

If imprisonment or restraint is without any legal for what cause, and by what authority such
authority, such fact shall appear [Sec. 3, Rule transfer was made
102]
When the return considered evidence, and
Who may apply when only a plea
a. The party for whose relief it is intended, or Custody under
b. By some person on his behalf [Sec. 3, Rule warrant of Restraint is by
102] commitment in private authority
pursuance of law
Some person – any person who has a legally
The return shall be
justified interest in the freedom of the person
considered only as a
whose liberty is restrained or who shows some The return shall be
plea of the facts
authorization to make the application [Velasco considered prima
v. CA, G.R. No. 118644 (1995)] therein set forth,
facie evidence of
and the party
the cause of
claiming the custody
2. Contents of the Return restraint
must prove such
Form facts
a. Written and signed by the person who [Sec. 13, Rule 102]
makes it
b. Sworn by the person who makes it if 3. Peremptory Writ and
1. The prisoner is not produced, and Preliminary Citation
2. In all other cases, unless the return is
made and signed by a sworn public Distinction between the writ and the
officer in his official capacity [Sec. 11, privilege of the writ
Rule 102]
The writ of habeas corpus is a process that is
tantamount to a summons to appear before the
By whom made: The person or officer who has court issuing it for an inquiry into the cause of
the person under restraint, or in whose custody the restraint complained of. Its issuance does
the prisoner is found [Sec. 10, Rule 102] not amount to an adjudication of the issue of
legality of the restraint. It is just an order to
Contents appear and explain.
a. Whether he has or has not the party in his
custody or power, or under restraint The privilege of the writ, on the other hand, is
b. If he has the party in his custody or power, the writ issued to enforce the court’s decision
or under restraint, the authority and the true on the merits finding the restraint illegal and
and whole cause thereof, set forth at large, directing the release from custody of the
with a copy of the writ, order execution, or detained individual.
other process, if any, upon which the party
is held Preliminary citation Peremptory writ
c. If the party is in his custody or power or is
A written document
restrained by him, and is not produced,
which unconditionally
particularly the nature and gravity of the
Requires the commands the
sickness or infirmity of such party by
respondent to appear respondent to have
reason of which he cannot, without danger,
and show cause why the body of the
be bought before the court or judge
the peremptory writ detained person
d. If he has had the party in his custody or
power, or under restraint, and has should not be granted before the court at a
transferred such custody or restraint to time and place
another, particularly to whom, at what time, therein specified

Page 317 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
[Lee Yick Hon v. Collector of Customs, G.R.
No. L-16779 (1921)]
The order to present an individual before the
court is a preliminary step in the hearing of the
petition. This order is NOT a ruling on the
propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the
order to produce the body is not equivalent to
a grant of the writ of habeas corpus. [In the
Matter of the Petition for Habeas corpus of
Alejano v. Cabuay, G.R. No. 160792 (2005)]
Quantum of proof for the issuance or non-
issuance of the privilege
When respondents' defense to a petition for
habeas corpus is that they released the
detainees for whom the petition was filed, but
the allegation of release is disputed by
petitioners, and it is not denied that the
detainees have not been seen or heard from
since their supposed release, the
respondents have the burden in law of
proving by clear and convincing evidence
that they released the detainees. [Dizon v.
Eduardo, G.R. No. L-59118 (1988)]
4. When Not Proper or
Applicable
When WHC is NOT proper
a. For asserting or vindicating the denial of
right to bail [Enrile v. Salazar, G.R. No.
92163 (1990)]
b. Where the petitioner has the remedy of
appeal or certiorari [Galvez v. CA, G.R. No.
114046 (1994)]
c. For correcting errors in the appreciation of
facts or law [Sotto v. Director of Prisons,
G.R. No. L-18871 (1962)
Exception: If error affects court’s
jurisdiction making the judgment void
[Herrera]
d. For enforcing marital rights including
venture and living in conjugal dwelling
[Ilusorio v. Bildner, G.R. No. 139789
(2001)]
e. When restrained under a lawful process or
order of the court, petitioner’s remedy is to
file a motion to quash the information or the
Page 318 of 525
REMEDIAL LAW
warrant of arrest [In the matter of the
petition for habeas corpus of Datukan
Malang Salibo v. Warden, G.R. No. 197597
(2015)]
f. When detention was by virtue of a final
judgment, the writ of habeas corpus may
not issue [Adonis v. Tesoro, G.R. No.
182855 (2013)]
When WHC is proper
a. Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v.
Galang, G.R. No. L-18365 (1963)]
b. Where the court has no jurisdiction to
impose the sentence [Banayo v. President
of San Pablo, G.R. No. 1430 (1903)]
c. Where a person is deprived of liberty due
to mistaken identity. In such cases, the
person is not under any lawful process and
is continuously being illegally detained. [In
re Datukan Malang Salibo, (2015)].
5. When Writ Disallowed or
Discharged
a. When restraint is by lawful order or process
[Mangila v. Judge Pangilinan, G.R. No.
160739 (2013); Adonis v. Tesoro, G.R. No.
182855 (2013); Ampatuan v. Judge
Macaraig, G.R. No. 182497 (2010)]
b. The person alleged to be restrained of his
liberty is in the custody of an officer
1. Under process issued by the court or
judge or by virtue of a judgment or
order of a court of record, and
2. Said court had jurisdiction to issue the
process, render the judgment or make
the order, or
c. Jurisdiction appears after the writ is
allowed despite any informality or defect in
the process, judgment, or order [Sec. 4,
Rule 102]
d. If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with
an offense punishable by death [Sec. 14,
Rule 102]
e. Where the person in whose behalf the writ
is sought is out on bail [Mangila v.
Pangilinan, G.R. No. 160739 (2013)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

f. Even if the arrest of a person is illegal, the 6. Distinguished From Writ of

following supervening events may bar
release Amparo and Habeas Data
1. Issuance of a judicial process [Sayo v.
Chief of Police of Manila, G.R. No. L- Writ of
Writ of Writ of habeas
2128 (1948)] habeas
amparo data
corpus
Judicial process is defined as a writ, Designed to
warrant, subpoena, or other formal protect the
writing issued by authority of law image, privacy,
[Malaloan v. CA, G.R. No. 104879 honor,
(1994)] information,
Extends to
2. The filing of a complaint before a trial and freedom of
all cases of
court which issued a hold departure information of
illegal
order and denied motion to dismiss and an individual,
confineme
to grant bail [Velasco v. CA, G.R. No. and to provide
nt or
118644(1995)] ONLY covers a forum to
detention
3. Filing of an information for the offense extralegal enforce one’s
(deprivatio
for which the accused is detained bars killings and right to the truth
n of liberty),
the availability of WHC [Velasco v. CA, enforced and to
or where
G.R. No. 118644 (1995)] disappearanc informational
rightful
es or threats privacy but in
custody is
The writ of habeas corpus cannot be availed of thereof relation to a
withheld
in cases of detention by virtue of a judicial threat to one’s
process or valid judgment. Exceptions where from
right to privacy
the writ may be availed of as a post- person
in regard to life,
conviction remedy: entitled
security, and
a. There has been a deprivation of a thereto
liberty [Vivares
constitutional right resulting in the restraint v. St. Theresa’s
of a person; College, G.R.
b. The court had no jurisdiction to impose the No. 202666
sentence; or (2014)]
c. An excessive penalty has been imposed,
as such sentence is void as to such excess.
See Comparative Table at the end of Writ of
[Harden v. Director of Prisons, 81 Phil. 741;
Habeas Data for a more comprehensive list of
Go v. Dimagiba, G.R. No. 151876, (2005)].
distinctions.
What is to be inquired into is the legality of a
person’s detention as of, at the earliest, the 7. Writ of Habeas Corpus In
filing of the application for the writ of habeas Relation To Custody of
corpus, for even if the detention is at in its Minors [A.M. No. 03-04-04-SC]
inception illegal, it may no longer be illegal at
the time of the filing of the application, by
Applicability
reason of supervening events [Ampatuan v.
Rule applies to petitions for custody of minors
Macaraig, G.R. 182497 (2010)]
and writs of habeas corpus in relation thereto.
The Rules of Court applies suppletorily [Sec. 1]

In custody cases involving minors, the writ of

habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.

Page 319 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
The grant of the writ depends on the
concurrence of the following requisites: (1) that
the petitioner has the right of custody over the
minor; (2) that the rightful custody over the
minor is being withheld from the petitioner by
the respondents; and (3) that it is to the best
interest of the minor concerned to be in the
custody of petitioner and not that of the
respondents
[Masbata v. Relucio, G.R. No. 235498 (2018)
Who may file
Any person claiming rightful custody of a minor
[Sec. 2]
Where filed; where enforceable
A verified petition shall be filed with the Family
Court of the province or city where the
petitioner resides or where the minor may be
found, or with the CA or the SC.
If filed with the Family Court where the
petitioner resides, or where the minor may be
found, the writ is enforceable within the judicial
region where the Family Court belongs.
If filed with the CA or the SC, or with any of its
members, the writ shall be enforceable
anywhere in the Philippines. Upon issuance of
the writ by the SC or CA, it may be made
returnable to a Family Court or to any regular
court within the region where the petitioner
resides or where the minor may be found.
If the presiding judge of the Family Court is
absent, then the petition may be filed with a
regular court, provided that the regular court
shall refer the case to the Family Court as soon
as the presiding judge returns to duty.
If there are no Family Courts in the area, then
the petition may be filed with the regular courts
The writ is returnable to the Family Court, or to
any regular court within the judicial region
where the petitioner resides or where the minor
may be found, for hearing and decision on the
merits.
Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
Page 320 of 525
REMEDIAL LAW
Considering that the writ is made enforceable
within a judicial region, petitions for the
issuance of the writ of habeas corpus, whether
they be filed under Rule 102 or pursuant to
Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed with any of the proper RTCs
within the judicial region where enforcement
thereof is sought [Tujan-Militante v. Cada-
Deapera, G.R. No. 210636 (2014)]
Procedure
A verified petition is filed alleging:
a. The personal circumstances of the
petitioner and of the respondent;
b. The name, age and present
whereabouts of the minor and his or her
relationship to the petitioner and the
respondent;
c. The material operative facts constituting
deprivation of custody; and
d. Such other matters which are relevant to
the custody of the minor
The verified petition shall be accompanied
by a certificate against forum shopping,
which the petitioner must sign personally
[Sec. 4]
↓
If sufficient in form and substance, court
shall direct the clerk of court to issue
summons, which shall be issued together
with a copy of the petition personally on
respondent [Sec. 5]
↓
Within 5 days the respondent shall file a
verified answer [Sec. 7]
Note: A motion to dismiss 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]
↓
Upon filing of answer or expiration of period
to file it, court may order a social worker to
make a case study of the minor and the
parties and to submit a report and
recommendation at least 3 days before the
scheduled pre-trial [Sec. 8]
U.P. LAW BOC SPECIAL PROCEEDINGS
The court may also issue a provisional order
awarding custody of the minor. As far as
practicable, the following order of
preference shall be observed:
a. Both parents jointly;
b. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment,
unless the parent chosen is unfit;
c. The grandparent, or if there are several
grandparents, the grandparent chosen
by the minor over seven years of age
and of sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
d. The eldest brother or sister over twenty-
one years of age, unless he or she is
unfit or disqualified;
e. The actual custodian of the minor over
twenty-one years of age, unless the
former is unfit or disqualified; or
f. Any other person or institution the court
may deem suitable to provide proper
care and guidance for the minor
[Sec. 13]
The court shall provide in its order awarding
provisional custody appropriate visitation
rights to the non-custodial parent/s, unless
the court finds said parent/s unfit or
disqualified [Sec. 15]
↓
Within 15 days after filing of answer or
expiration of period to file it, the court shall
issue an order
1. Fixing a date for the pre-trial conference;
2. Directing the parties to file and serve
their respective pre-trial briefs in such
manner as shall ensure receipt thereof
by the adverse party at least 3 days
before the date of pre-trial; and
3. Requiring the respondent to present the
minor before the court
Notice of order shall be served separately to
the parties and their counsels. Pre-trial is
mandatory [Sec. 9]
↓
Page 321 of 525
REMEDIAL LAW
Filing of pre-trial brief which shall contain the
following:
a. A statement of the willingness of the
parties to enter into agreements that
may be allowed by law, indicating its
terms;
b. A concise statement of their respective
claims together with the applicable laws
and authorities;
c. Admitted facts and proposed
stipulations of facts;
d. The disputed factual and legal issues;
e. All the evidence to be presented, briefly
stating or describing its nature and
purpose;
f. The number and names of the witnesses
and their respective affidavits which
shall serve as the affiant's testimony on
direct examination; and
g. Such other matters as the court may
require to be included in the pre-trial
brief
Failure to file it or to comply with its required
contents shall have the same effect as
failure to appear at the pre-trial [Sec. 10]
↓
Pre-trial where the parties may agree on the
custody of the minor. If parties disagree,
court may refer to a mediator who has 5
days to effect an agreement between the
parties. If still not settled, court to proceed
with pre-trial conference
Failure to appear at pre-trial
a. If petitioner fails to appear personally,
the case shall be dismissed, unless his
counsel or a duly authorized
representative appears in court and
proves a valid excuse for the non-
appearance
b. If respondent has filed his answer but
fails to appear at the pre-trial, the
petitioner shall be allowed to present his
evidence ex parte. The court shall then
render judgment on the basis of the
pleadings and the evidence thus
presented
[Secs. 11-12]
↓
U.P. LAW BOC SPECIAL PROCEEDINGS
Nexus between right to privacy, and right to
life, liberty or security
The writ, however, will not issue on the basis
merely of an alleged unauthorized access to
information about the person. Availment of the
writ requires the existence of a nexus between
the right to privacy on the one hand, and the
right to life, liberty or security on the other
[Vivares v. St. Theresa’s College, G.R. No.
202666 (2014)]
It will not issue to protect purely property or
commercial concerns nor when the grounds
invoked in support of the petition therefor are
vague and doubtful [Manila Electric Company
v. Lim, G.R. No. 184769 (2010)]
Where the petitioner was not able to sufficiently
allege that his right to privacy in life, liberty or
security was or would be violated through the
supposed reproduction and threatened
dissemination of the subject sex video, the
petition is dismissible. xxx As the rules and
existing jurisprudence on the matter evoke,
alleging and eventually proving the nexus
between one’s privacy rights to the cogent
rights to life, liberty or security are crucial in
habeas data cases, so much so that a failure
on either account certainly renders a habeas
data petition dismissible [Lee v. Ilagan, G.R.
No. 203254 (2014)]
3. Who May File
Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of
extralegal killings and enforced
disappearances, the petition may be filed by
a. Any member of the immediate family of the
aggrieved party, namely the spouse,
children and parents, or
b. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph [Sec. 2]
Page 331 of 525
REMEDIAL LAW
4. Contents of the Petition
A verified written petition for a writ of habeas
data should contain
a. The personal circumstances of the
petitioner and the respondent
b. The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved party
c. The actions and recourses taken by the
petitioner to secure the data or information
d. The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in
control of the data or information, if known
e. The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or information
or files kept by the respondent.
f. In case of threats, the relief may include a
prayer for an order enjoining the act
complained of, and
g. Such other relevant reliefs as are just and
equitable [Sec. 6]
Issuance of writ
Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance
of the writ if on its face it ought to issue [Sec. 7]
5. Contents of Return
The respondent shall file a verified written
return together with supporting affidavits. It
shall contain, among others, the following:
a. The lawful defenses such as national
security, state secrets, privileged
communication, confidentiality of the
source of information of media and others
b. In case of respondent in charge, in
possession or in control of the data or
information subject of the petition
1. disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose
for its collection
2. the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or
information, and
U.P. LAW BOC SPECIAL PROCEEDINGS
3. the currency and accuracy of the data
or information held, and
c. Other allegations relevant to the resolution
of the proceeding
A general denial of the allegations in the
petition shall not be allowed [Sec. 10]
When to file return
Respondent must file a verified written return
within 5 working days from service of the writ,
together with supporting affidavits. The 5-day
period may be reasonably extended by the
Court for justifiable reasons [Sec. 10]
Prohibited pleadings and motions
a. Motion to dismiss
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings
c. Dilatory motion for postponement
d. Motion for a bill of particulars
e. Counterclaim or cross-claim
f. Third-party complaint
g. Reply
h. Motion to declare respondent in default
i. Intervention
j. Memorandum
k. Motion for reconsideration of interlocutory
orders or interim relief orders, and
Petition for certiorari, mandamus or
prohibition against any interlocutory order
[Sec. 13]
To whom returnable
If issued by
a. SC or any of its justices - before such Court
or any justice thereof, or CA/SB or any of
its justices, or the RTC of the place where
the petitioner or respondent resides/has
jurisdiction over the place where the data
or information is gathered, stored or
collected
b. CA/SB or any of its justices - before such
court or any justice thereof, or RTC (same
with scenario SC issued and then returned
in RTC)
c. RTC - returnable before such court or judge
[Sec. 4]
Page 332 of 525
REMEDIAL LAW
Effect of failure to file return
The court, justice, or judge shall proceed to
hear the petition ex parte [Sec. 14]
Procedure for hearing
Hearing on the petition shall be summary. BUT
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. 15]
6. Instances When Defenses
May Be Heard in Chambers
a. Where the respondent invokes the defense
that the release of the data or information
in question shall compromise national
security or state secrets, or
b. When the data or information cannot be
divulged to the public due to its nature or
privileged character
[Sec. 12]
Judgment
The court shall render judgment within 10 days
from the time of petition is submitted for
decision [Sec. 16]
Appeal
Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45,
5 working days from the date of notice of the
adverse judgment [Sec. 19]
7. Consolidation
When a criminal action is filed subsequent
to the filing of a petition for the writ, the latter
shall be consolidated with the criminal action
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of habeas data, the petition shall be
consolidated with the criminal action [Sec. 21]
U.P. LAW BOC SPECIAL PROCEEDINGS
8. Effect of Filing Criminal
Action
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The reliefs under the writ shall be available to
an aggrieved party by motion in a criminal case
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of habeas data [Sec. 22]
9. Institution of Separate Action
The filing of a petition for the writ of habeas
data shall not preclude the filing of separate
criminal, civil or administrative actions [Sec. 20]
10. Quantum of Proof in Application
for Issuance of Writ of Habeas Data
If the allegations in the petition are proven by
substantial evidence, the court shall (a) enjoin
Page 333 of 525
REMEDIAL LAW
the act complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information AND (b) grant other
relevant reliefs as may be just and equitable;
otherwise, the privilege of the writ shall be
denied [Sec. 16]
An indispensable requirement before the
privilege of the writ may be extended is the
showing, at least by substantial evidence, of
an actual or threatened violation of the right to
privacy in life, liberty or security of the victim
[Roxas v. Arroyo, G.R. No. 189155 (2010)]
Not only direct evidence, but circumstantial
evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions
consistent with the admissible evidence
adduced [Saez v. Arroyo, G.R. No. 183533
(2012)]
HOWEVER, the right to informational privacy
may yield to an overriding legitimate state
interest. [Gamboa v. Chan, G.R. No. 193636
(2012)
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Comparative table of the writs of habeas corpus, amparo, and habeas data
Habeas corpus Amparo Habeas data
Involves the right to
privacy in life, liberty
a. All cases of illegal
confinement and Involves right to life, or security violated or
detention by which liberty and security threatened by an
any person is violated or threatened unlawful act or
deprived of his with violation by an omission of a public
liberty unlawful act or omission official or employee, or
b. Deprivation of of a public official or of a private individual or
Nature, scope, rightful custody of employee or a private entity engaged in the
function any person including individual or entity gathering, collecting or
minors from the storing of data or
person entitled Covers extralegal information regarding
[Sec. 1]
killings and enforced the person, family,
disappearances or home and
Actual violation before
threats thereof [Sec. 1] correspondence of the
writ issues.
aggrieved party [Sec.
1]
May not be suspended
except in cases of Shall not diminish, Shall not diminish,
invasion or rebellion increase or modify increase or modify
Limitations
when public safety substantive rights [Sec. substantive rights [Sec.
requires it [Sec. 15, Art. 23] 23]
III, 1987 Const.]
Petition filed by the Any aggrieved party
aggrieved party or by any may file a petition.
qualified person or entity
in the following order: However, in cases of
a. Any member of the extralegal killings and
immediate family enforced
b. Any ascendant, disappearances, the
By a petition signed and descendant or petition may be filed by
verified by the party for collateral relative of (also successive):
the aggrieved within a. Any member of the
whose relief it is
Who may file the 4th civil degree of immediate family
intended, or by some
affinity or of the aggrieved
person on his behalf consanguinity
[Sec. 3] b. Any ascendant,
c. Any concerned descendant or
citizen, organization, collateral relative
association or of the aggrieved
institution party within the
fourth civil degree
Filing by the aggrieved of consanguinity or
suspends the right of all affinity
others [Sec. 2] [Sec. 2]

Page 334 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

a. SC or any member a. At the option of

thereof, on any day petitioner, RTC
and at any time where:
b. CA or any member 1. Petitioner
thereof in instances resides or
authorized by law 2. Respondent
a. SB, CA, SC, or any
c. RTC or a judge resides or
justice of such courts
thereof, on any day 3. That which has
b. RTC of place where
and at any time, jurisdiction
the threat, act or
Where filed enforceable only over the place
omission was
within his judicial where the data
committed or any of
district or information
its elements occurred
[Sec. 2] is gathered,
[Sec. 3]
d. MTC or first level collected or
courts in the stored
absence of RTC b. SC, CA, or SB – If
judges in a judicial public data files of
region [Sec. 35, B.P. government offices
129] [Sec. 3]
If SC/CA issued,
anywhere in
Philippines.

If granted by the RTC or

judge thereof, it is
Where
enforceable in any part
enforceable
of the judicial region
[Sec. 21, B.P. 129 which
modified the term judicial
district in Sec. 2, Rule
102 into judicial region]
where the judge sits
If issued by:
a. SC/CA, or a
member thereof,
returnable before
such court or any
Where
member thereof or
returnable
an RTC
b. RTC, or a judge
thereof, returnable
before himself
[Sec. 2]
Anywhere in Philippines Anywhere in
[Sec. 4] Philippines [Sec. 3]
If issued by: If issued by:
a. SC or any of its a. SC or any of its
justices, returnable justices, before
before such court or such Court or any
any justice thereof, or justice thereof, or
before the CA/SB or CA/SB or any of its
any of their justices, justices, or the
or to any RTC of the RTC of the place
place where the where the
threat, act or petitioner or
omission was respondent
committed or any of resides/has
its elements occurred jurisdiction over
b. CA/SB or any of their the place where
justices, returnable the data or

Page 335 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

before such court or information is

any justice thereof, or gathered, stored or
to any RTC of the collected
place where the b. CA/SB or any of its
threat, act, or justices, before
omission was such court or any
committed or any of justice thereof, or
its elements occurred RTC (same with
c. RTC or any judge scenario SC
thereof, returnable issued and then
before such court or returned in RTC)
judge c. RTC, returnable
[Sec. 3] before such court
or judge
[Sec. 4]
None for indigent
petitioner
Petitioner shall be
exempted from the
Upon the final Petition shall be
payment of the docket
disposition of such docketed and acted
and other lawful fees
proceedings the court or upon immediately,
Docket fees
judge shall make such without prejudice to
Court, justice or judge
order as to costs as the subsequent
shall docket the petition
case requires [Sec. 19] submission of proof of
and act upon it
indigency not later than
immediately [Sec 4]
15 days from filing
[Sec. 5]
Signed and verified Signed and verified and
either by the party for Verified and written
shall allege
whose relief it is petition shall contain
a. The personal
a. Personal
intended or by some circumstances of the
circumstances of
person on his behalf, petitioner
petitioner and
setting forth b. Name or appellation
respondent
a. The person in and circumstances of
b. Manner the right to
whose behalf the the respondent
Essential privacy is violated
application is made c. The right to life,
allegations/ or threatened and
is imprisoned or liberty, and security
Contents of its effects
restrained of his violated or threatened
c. Actions and
petition liberty with violation
recourses taken by
b. Name of the person d. The investigation
the petitioner to
detaining another or conducted, if any,
secure the data or
assumed appellation plus circumstances of
information
c. Place where he is each
d. The location of the
imprisoned or e. The actions and
files, registers, or
restrained of his recourses taken by
databases, the
liberty the petitioner
government office,
d. Cause of detention f. Relief prayed for

Page 336 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

[Sec. 3] and the person in

May include a general charge or control
prayer for other just and e. The reliefs prayed
equitable reliefs for
[Sec. 5] f. Such other
relevant reliefs as
are just and
equitable [Sec. 6]
Court or judge must,
when a petition is Upon filing of the
presented and it appears petition, the court,
that it ought to issue, justice, or judge shall
Upon the filing of the immediately order the
grant the same and then:
petition, the court, justice, issuance of the writ if
● the clerk of court
or judge shall immediately on its face it ought to
(CoC) shall issue
the writ under the order the issuance of the issue:
seal of the court or writ if on its face it ought to ● CoC shall issue
● in case of issue: the writ under the
emergency, the ● CoC shall issue the seal of the court
judge may issue the writ under the seal of and cause it to be
When proper writ under his own the court or served within 3
hand, and may ● In case of urgent days from
deputize any officer necessity, the justice issuance or
or person to serve it or the judge may ● In case of urgent
issue the writ under necessity, the
Also proper to be issued his or her own hand, justice or judge
when the court or judge and may deputize may issue the writ
has examined into the any officer or person under his or her
to serve it own hand, and
cause of restraint of the
[Sec. 6] may deputize any
prisoner, and is satisfied
officer or person to
that he is unlawfully serve it
imprisoned [Sec. 7]
[Sec. 5]
Writ may be served in The writ shall be served
The writ shall be served
any province by the (a) upon the respondent by
upon the respondent by a
sheriff, (b) other proper a judicial officer or by a
judicial officer or by a
officer, or (c) person person deputized by
person deputized by the
deputed by the court or the court, justice or
court, justice or judge who
judge. judge who shall retain a
shall retain a copy on
Service copy on which to make
which to make a return of
Service is made by a return of service.
service.
leaving the original with
the person to whom it is In case the writ cannot
In case the writ cannot be
directed and preserving be served personally
served personally on the
a copy on which to make on the respondent, the
respondent, the rules on
return of service. rules on substituted

Page 337 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

If that person cannot be substituted service shall service shall apply

found, or has not the apply [Sec. 8] [Sec. 9]
prisoner in his custody,
service shall be made on
any other person having
or exercising such
custody
[Sec. 7]
A public official or
Respondent is a public employee or a private
May or may not be an official or employee or individual or entity
Respondent
officer [Sec. 6] private individual or entity engaged in gathering,
[Sec. 1] collecting or storing
data [Sec. 1]
The officer to whom the
writ is directed shall
convey the person so
imprisoned or restrained
before:
● the judge allowing
the writ, or
● in his absence or
disability, before
some other judge of
the same court

How executed on the day specified in Respondent files the Respondent files the
and returned the writ, unless person return [Sec. 9] return [Sec. 10]
directed to be produced
is sick or infirm, and
cannot, without danger,
be brought therein.
Officer shall then make
the due return of the writ,
with the day and cause
of the caption and
restraint according to the
command thereof
[Sec. 8]
Within 5 working days
When to file On the day specified on Same as Amparo [Sec.
after service of the writ
return the writ [Sec. 8] 10]
[Sec. 9]
When the person to be Within 5 working days a. Lawful defenses
Contents of such as national
produced is imprisoned after service of the writ,
return security, state
or restrained by an the respondent shall file a
secrets, privileged

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

officer, the person who verified written return communications,

makes the return shall together with supporting confidentiality of
state, and in other cases affidavits which shall, the source of
the person in whose contain information of
custody the prisoner is a. Lawful defenses media etc.
b. The steps or actions b. In case of
found shall state in
taken to determine respondent in
writing to the court or
the fate or charge, in
judge before whom the
whereabouts of the possession or in
writ is returnable: control of the data
a. Truth of aggrieved party
c. All relevant or information
custody/power over subject of the
the aggrieved party information in the
possession of the petition
b. If he has custody or 1. A disclosure of
power, or under respondent pertaining
to the threat, act or the data or
restraint, the information
authority and the omission against the
aggrieved party about the
cause thereof, with petitioner, the
a copy of the writ, d. If the respondent is a
public official or nature of such
order, execution or data or
other process, if any employee, the return
shall further state information,
upon which the and the
party is held acts
1. To verify identity purpose for its
c. If the party is in his collection
custody or power, of aggrieved party
2. To recover and 2. The steps or
and is not produced, actions taken
particularly the preserve
evidence by the
nature and gravity of respondent to
the sickness or 3. To identify and
collect witness ensure the
infirmity security and
d. If he has had the statements
4. To determine confidentiality
party in his custody of the data or
or power, and has cause, manner,
location, and time information
transferred such 3. The currency
custody or restraint of death or
disappearance and accuracy
to another, of the data or
particularly to whom, 5. To identify and
apprehend information
at what time, for held
what cause, and by persons involved
6. To bring 4. Other
what authority such allegations
transfer was made suspected
offenders before relevant to the
[Sec. 10] resolution of
a competent court
[Sec.9] the proceeding
[Sec.10]
Return or statement Respondent shall file a
Respondent shall file a
Formalities of shall be signed and verified written return
verified written return
return sworn to by the person together with supporting
together with
who makes it if the affidavits [Sec. 9]

Page 339 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

prisoner is not produced, supporting affidavits

unless the return is [Sec. 10]
made and signed by a
sworn public officer in his
official capacity [Sec. 11]
a. CoC who refuses to
issue the writ after a. Contempt without
allowance and prejudice to other
demand, or a. Contempt without disciplinary actions
b. A person to whom a prejudice to other 1. CoC who
writ is directed, who disciplinary actions refuses to
1. neglects/refuses 1. CoC who refuses issue the writ
to obey or make to issue the writ after its
return of the after its allowance, or
same according allowance, or 2. A deputized
to the command 2. A deputized person who
thereof, person who refuses to
2. or makes false refuses to serve serve the writ
return, the writ [Sec. 8]
Penalties for 3. or upon demand [Sec. 7] b. Contempt
refusing to made by or on b. Contempt punishable punishable by
behalf of the by imprisonment or a imprisonment or a
issue or serve
prisoner, refuses fine fine
OR for faulty
to deliver to the 1. A respondent 1. A respondent
return who refuses to who refuses to
person
demanding, make a return, or make a return,
within 6 hours a 2. A respondent or
true copy of the who makes a 2. A respondent
warrant or order false return, or who makes a
of commitment, 3. Any person who false return, or
otherwise 3. Any person
shall forfeit to the party disobeys or resist who otherwise
aggrieved the sum of a lawful process disobeys or
or order of the resist a lawful
P1000, recoverable in a
court process or
proper action, and may
[Sec. 16] order of the
also be punished for
court
contempt [Sec. 11]
[Sec. 16]
No, not even on highly
meritorious grounds.
Is period of
Yes, for justifiable
return Note: Motion for
reasons [Sec. 10]
extendable? extension of time to file a
return is a prohibited
pleading [Sec. 11]
Is a general
Not allowed [Sec. 9] Not allowed [Sec. 10]
denial allowed?

Page 340 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Court, judge, or justice

Court or justice shall
Effect of failure
proceed to hear the
to file return
petition ex parte [Sec. 12]
Summary.
shall hear the motion
ex parte, granting the
petitioner such reliefs
as the petition may
warrant
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary.

However, the court, With possibility of

Summary.
The writ does not act
upon the prisoner who
Nature of seeks relief, but upon the
Hearing person who holds him in
what is alleged to be
unlawful authority
[Caballes v. CA, G.R.
No. 163108 (2005)
Date and time of As specified in the writ
hearing [Sec. 8]
In custody of minors a
motion to dismiss,
Prohibited except on the ground of
pleadings lack of jurisdiction [Sec.
6, Rule on Custody of
Minors and WHC]
justice, or judge may call preliminary conference
for a preliminary similar to Amparo [Sec.
conference to simplify the 14]
issues and look at the
possibility of obtaining Hearing in chambers
stipulations and may be conducted
admissions from the where respondent
parties. invokes the defense of
national security or
Same priority as petitions state secrets, or the
for Habeas corpus data is of privileged
[Sec. 13] character [Sec. 12]
As specified in the writ,
As specified in the writ,
not later than 10
not later than 7 days from
working days from the
the issuance of the writ
date of issuance writ
[Sec. 6]
[Sec. 7]
a. Motion to dismiss
b. Motion for extension
of time to file
opposition, affidavit,
position paper and
other pleadings
c. Dilatory motion for Same as Amparo [Sec.
postponement 13]
d. Motion for bill of
particulars
e. Counterclaims or
cross-claims
f. Third-party complaint
g. Reply

Page 341 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

h. Motion to declare
respondent in default
i. Intervention
j. Memorandum
k. Motion for
reconsideration of
interlocutory orders or
interim relief orders
l. Petition for certiorari,
mandamus, or
prohibition
[Sec. 11]
Substantial evidence
a. if respondent is a
private individual or
Clear and convincing entity, ordinary Substantial evidence
Burden of
evidence [Dizon v. diligence required to prove the
proof/Standard
Eduardo, G.R. No. L- b. if public official or allegations in the
of diligence
59118 (1988)] employee, petition [Sec. 16]
extraordinary
diligence
[Sec. 17]
Yes. If warrant of Public official or employee
commitment is in cannot invoke the
Presumption of
pursuance with law, it presumption that official
official duty
serves as prima facie duty has been regularly
cause of restraint. performed [Sec. 17]
Upon filing of the petition
or at any time before final
judgment, the court,
justice or judge may grant
any of the following
reliefs:
Interim reliefs a. temporary protection
order
b. inspection order
c. production order
d. witness protection
order
[Sec. 14]
Within 10 days from the Within 10 days from the
time the petition is time the petition is
Judgment
submitted for decision submitted for decision
[Sec. 18] [Sec. 16]
5 working days from
Within 48 hours from 5 working days from the
Appeal the date of notice of
notice of the judgment of date of notice of adverse
adverse judgment to

Page 342 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

final order appealed judgment to the SC under the SC under Rule 45

[Sec. 39, B.P. 129] Rule 45 [Sec. 19] [Sec. 19]
Institution of
separate Not precluded
actions
Consolidated with a Consolidated with a
Consolidation criminal action filed criminal action filed
of actions subsequent to the petition subsequent to the
[Sec. 23] petition [Sec. 21]
No more separate petition
Effect of filing shall be filed. Reliefs Same as Amparo [Sec.
criminal action available by motion in the 21]
criminal case [Sec. 22]

P. CHANGE OF NAME
[Rule 103]

1. Differences Under Rule 103, R.A. No. 9048 and Rule 108
[De Leon 537-540]

Rule 103 R.A. 9048, as amended Rule 108

Change of first name or
nickname, day or month
Change of full name or Correction of substantial
(not year) of birthdate,
Scope surname (substantial errors or cancellation of
gender, and correction of
corrections) entries in Civil Registry
clerical errors of entries
in Civil Registry
Judicial: Hearing
necessary; Adversarial
Judicial: Hearing Administrative: No since it involves
Nature of proceedings
necessary hearing required substantial changes and
affects the status of
individuals
Any person having direct Any person interested in
and personal interest in any act, event, order or
A person desiring to correction of a clerical or decree concerning civil
Who may file
change one’s name typographical error in an status of persons which
entry and/or change of has been recorded in civil
first name or nickname register
Signed and verified
Initiatory pleading Sworn affidavit Verified petition
petition
RTC of province where
Local civil registry office RTC of city or province
petitioner has been
Where to file of city or municipality where corresponding civil
residing for 3 years prior
where record being registry is located
to filing

Page 343 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

sought to be corrected or
changed is kept

If already migrated to
another place within
the Philippines: Local
civil registrar of place
where interested party is
presently residing or
domiciled

Filipino citizens
presently residing or
domiciled in foreign
countries: Philippine
Consulate
a. Births
b. Marriage
c. Deaths
d. Legal separations
e. Judgments of
a. Correction of clerical
annulments of
or typographical
marriage
errors, and
f. Judgments declaring
b. Change of
marriages void from
1. First name or
Correction of clerical or the beginning
nickname
typographical errors in g. Legitimations
2. Day and month
any entry in civil registry h. Adoptions
in date of birth,
documents, except i. Acknowledgments of
Coverage or
corrections involving natural children
3. Sex of a person
change in sex, age, j. Naturalization
where it is
nationality and status of a k. Election, loss or
patently clear
person recovery of
that there was a
citizenship
clerical or
l. Civil interdiction
typographical
m. Judicial
error or mistake
determination of
in the entry
filiation
n. Voluntary
emancipation of a
minor
o. Changes of name
Where to Court of Appeals, under Civil Registrar General Court of Appeals, under
Appeal Rule 109 Rule 109

Page 344 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
Procedure
Filing of a signed and verified petition for
change of name [Sec. 2]
↓
Court issues order fixing the date and place
of hearing. Any interested person may
oppose [Secs. 3-4]
↓ defective. [Republic v. Cagandahan, G.R. No.
Publication of court order fixing date and
place of hearing, at least once a week for 3
consecutive weeks in a newspaper of
general circulation in the province [Sec. 3]
↓ In order to justify a request for change of name,
Hearing on the petition [Sec. 4]
↓ for the change and proof that the person
Judgment granting/denying change of name
[Sec. 5]
↓
Furnishing of judgment on the civil registrar,
who shall forthwith enter the same [Sec. 6]
What is changed
The name that can be changed is the name
that appears in the civil register, and not in the
baptismal certificate or that which the person is
known in the community [No Yao Siong v.
Republic, G.R. No. L-20306 (1966)]
A change of name granted by the court affects
only a petitioner. A separate petition for change
of name must be filed for his/her spouse and
children [Secan Kok v. Republic, G.R. No. L-
27621 (1973)]
Jurisdictional requirements
An alien may petition for change of name but
he must be domiciled in the Philippines [Ong
Huan Tin v. Republic, G.R. No. L-20997
(1967)]
Verification is a formal, not a jurisdictional,
requirement. The lack of verification is not a
ground for dismissing the petition. However,
before setting the petition for hearing, the court
should have required the petitioner to have the
petition verified [Oshito v. Republic, G.R. No.
L-21180 (1967)]
All aliases of the applicant must be set forth in
the petition’s title. Such defect is fatal, even if
Page 345 of 525
REMEDIAL LAW
said aliases are contained in the body of the
petition [Go Chiu Beng v. Republic, G.R. No. L-
29574 (1972)]
Failure to implead the local civil registrar as
well as all persons who have or claim any
interest did not render the petition fatally
166676 (2008)]
Change of name requires adversarial
proceedings
there must be a proper and compelling reason
requesting will be prejudiced by the use of his
official name. To assess the sufficiency of the
grounds invoked therefor, there must be
adversarial proceedings [Republic v.
Mercadera, G.R. No. 186027 (2010)]
2. Grounds for Change of Name
a. The name is ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce
b. Change results as a legal consequence of
legitimation
c. The change will avoid confusion
d. A sincere desire to adopt a Filipino name to
erase signs of former alienage [Ang Chay
v. Republic, G.R. No. L-28507 (1970)]
e. Having continuously used and been known
since childhood by a Filipino name, having
been unaware of alien parentage [Uy v.
Republic, G.R. No. L-22712 (1965)]
f. When the surname 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 [Republic v.
Coseteng-Magpayo, G.R. No. 189476
(2011)]
g. Intersexuality is a valid ground for change
of name and change of entry of sex in the
civil registry. Where the person is
biologically or naturally intersex the
determining factor in his gender
classification would be what the individual,
having reached the age of majority, with
good reason, thinks of his sex. Sexual
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

development in cases of intersex persons

makes the gender classification at birth Q. ABSENTEES
inconclusive. It is at maturity that the
gender of such persons is fixed [Republic [Rule 107]
v. Cagandahan, G.R. No. 166676 (2008)]

When not proper 1. Purpose of the Rule

When what is sought to be changed relates to
status.
Rule 103 cannot be resorted to for expediency
if the petition substantially seeks to change
one’s status from legitimacy to illegitimacy.
When a petition for cancellation or correction of
an entry in the civil register involves substantial
and controversial alterations including those on
citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, a strict compliance
with the requirements of Rule 108 is mandated.
[Republic v. Coseteng-Magpayo, G.R. No.
189476 (2011); Republic v. Cagandahan, G.R.
No. 166676 (2008)]
Legal separation is not a ground for the female
spouse to apply for a change of name under
Rule 103 [Laperal v. Republic, G.R. No. L-
18008 (1962)]
A person’s first name cannot be changed on
the ground of sex reassignment [Silverio v.
Republic, G.R. No. 184689 (2007)]
A petition to correct an alleged erroneous entry
in one’s birth certificate pertaining to the date
of marriage of his parents, notwithstanding the
fact that it qualifies as a substantial correction,
may be filed under Rule 108 [Onde v. Office of
the Local Civil Registrar, G.R. No. 197174
(2014)]
It is undoubtedly true that if the subject matter
of a petition is not for the correction of clerical
errors of a harmless and innocuous nature, but
one involving nationality or citizenship, which is
indisputably substantial as well as
controverted, affirmative relief cannot be
granted in a proceeding which is summary in
nature. [Republic v. Kho, G.R. No. 170340
(2007), citing Republic v. Valencia, G.R. L-
32181 (1986)]
The declaration of absence made in
accordance with the provisions of the Civil
Code has for its sole purpose to enable the
taking of the necessary precautions for the
administration of the estate of the absentee.
[In Re Petition for Declaration of Absence of
Roberto L. Reyes, G.R. No. L-32036 (1986)]
General rule: No independent action for
declaration of presumption of death [In Re
Petition for the Presumption of Death of Nicolai
V. Szatraw, G.R. No. L-1780 (1948)]
Exception: For purpose of contracting a
second marriage [Art. 41, FC]
2. Who May File; When to File
PETITION FOR APPOINTMENT OF A
PROVISIONAL REPRESENTATIVE
When filed
To provisionally represent absentee when a
person
a. Disappears from his domicile, his
whereabouts being unknown, and
b. Has not left an agent to administer his
property or the power conferred upon the
agent has expired
[Sec. 1, Rule 107]
Who may file
a. Any interested party
b. Relative
c. Friend
[Sec. 1, Rule 107]

Page 346 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
PETITION FOR DECLARATION OF
ABSENCE AND APPOINTMENT OF A
TRUSTEE OR ADMINISTRATION
When filed
a. After 2 years
1. From disappearance of and without
any news from absentee, or
2. Since the receipt of the last news about
him
b. After 5 years if the absentee left an
administrator of his property
[Sec. 2, Rule 107]
Who may file
a. Spouse present
b. Heirs instituted in a will, who may present
an authentic copy of the same
c. Relatives who would succeed by the law of
intestacy
d. Those who have over the property of the
absentee some right subordinated to the
condition of his death
[Sec. 2, Rule 107]
Who may be appointed
a. Spouse present shall be preferred when
there is no legal separation
b. Any competent person if absentee left no
spouse, or spouse is incompetent
[Sec. 7, Rule 107]
Procedure
Filing of a petition [Sec. 3]
↓ found, and the price of any property that may
Court issues order fixing the date and place
of hearing. Any interested person may
oppose
Copies of order shall be served upon the
known heirs, legatees, devisees, creditors,
and other interested persons, at least 10
days before day of hearing [Sec. 4-5]
↓ the previous marriage or declaring it void ab
Publication of court order fixing date and
place of hearing, at least once a week for 3
consecutive weeks in a newspaper of
general circulation in the province or city
where absentee resided [Sec. 3]
↓
Page 347 of 525
REMEDIAL LAW
Hearing on the petition where petitioner
must first show his compliance with Sec. 4
of serving copies of the notice to interested
persons [Sec. 6]
↓
Judgment granting/denying the declaration
of absence and appointment of trustee or
administrator [Sec. 6]
Note: in case of declaration of absence,
judgment won’t take effect until 6 months
after its publication in a newspaper of
general circulation and in the Official
Gazette
↓
Furnishing of judgment on the civil registrar,
who shall forthwith enter the same [Sec. 6]
Termination of administration
Trusteeship or administration of property of
absentee shall cease upon order of court if
a. Absentee appears personally or through an
agent
b. Absentee’s death is proved and heirs
appear
c. Third person appears, showing by proper
document that he acquired title over the
property of the absentee
[Sec. 8, Rule 107]
Effects of reappearance
If the absentee appears, or without appearing
his existence is proved, he shall recover his
property in the condition in which it may be
have been alienated or the property acquired
therewith; but he cannot claim either fruits or
rents [Art. 392, NCC]
The subsequent marriage shall be
automatically terminated by the recording of
the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling
initio [Art. 42, FC]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

fully and properly developed, where opposing

R.
CANCELLATION OR counsel have been given opportunity to
CORRECTION OR ENTRIES IN demolish the opposite party’s case, and where
THE CIVIL REGISTRY the evidence has been thoroughly weighed and
[Rule 108] considered [Eleosida v. Local Civil Registrar of
Quezon City, G.R. No. 130277 (2002)]
1. Entries Subject to Parties to be impleaded
Cancellation or Correction a. Civil registrar, and
under Rule 108, in relation to b. All persons who have or claim any interest
which would be affected
R.A. No. 9048 [Sec. 3, Rule 108]
a. Births
Notice and publication of order fixing time
b. Marriage
and place for hearing
c. Deaths
Reasonable notice to persons named in the
d. Legal separations
petition, and publication once a week for 3
e. Judgments of annulments of marriage consecutive weeks [Sec. 4, Rule 108]
f. Judgments declaring marriages void from
the beginning
A reading of Sections 4 and 5 shows that the
g. Legitimations
Rules mandate two sets of notices to different
h. Adoptions
potential oppositors, one given to the persons
i. Acknowledgments of natural children
named in the petition and another given to
j. Naturalization
other persons who are not named in the
k. Election, loss or recovery of citizenship
petition but nonetheless may be considered
l. Civil interdiction
interested or affected parties (i.e. creditors).
m. Judicial determination of filiation
Summons must, therefore, be served not for
n. Voluntary emancipation of a minor
the purpose of vesting the courts with
o. Changes of name jurisdiction but to comply with the requirements
[Sec. 2, Rule 108]
of fair play and due process to afford the
person concerned the opportunity to protect his
Cancellation or correction of entries in the
interest if he so chooses [Republic v.
civil registry requires adversarial Lugsanay-Uy, G.R. No. 198010 (2013)]
proceedings
Corrections of entries in the civil register
Opposition
including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage,
Period to file
involve substantial alterations. Substantial
Within 15 days from notice of petition, or from
errors in a civil registry may be corrected and last date of publication of notice [Sec. 5, Rule
the true facts established provided the parties
108]
aggrieved by the error avail themselves of the
appropriate adversary proceedings [Onde v May be filed by
Office of the Local Civil Registrar of Las Piñas, a. Civil registrar, and
G.R. No. 197174 (2014)] b. Any person having or claiming any interest
under entry whose cancellation or
Substantial Change – change that affects the correction is sought [Sec. 5, Rule 108]
civil status, citizenship, or nationality of a party
[Republic v. Bautista, G.R. No. L-35316 (1987)]
Effect of failure to implead and notify the
affected or interested parties
One where the trial court has conducted
A petition which seeks the correction of entries
proceedings where all relevant facts have been
in the birth certificate pertaining to first name,

Page 348 of 525

U.P. LAW BOC SPECIAL PROCEEDINGS
surname and citizenship is not merely clerical.
When the corrections will result in changes in
the status from “legitimate” to “illegitimate” and
the citizenship from “Chinese” to “Filipino”, the
petitioner should have impleaded not only the
local civil registrar but also her parents and
siblings as they are affected by the changes or
corrections.
It is clear therefore that when the petition for
cancellation or correction of an entry in the civil
register involves substantial and controversial
alterations, including those on citizenship,
legitimacy or paternity or filiation, or legitimacy
of marriage, a strict compliance with the
requirements of Rule 108 is mandated, failing
in which the petition must be dismissed.
[Republic v. Lagunsay Uy, G.R. No. 198010
(2013)]
Such failure, however, may be excused
a. where there is the publication of the notice
of hearing, and earnest efforts were made
by petitioners in bringing to court all
possible interested parties
b. where the interested parties themselves
initiated the corrections proceedings
c. when there is no actual or presumptive
awareness of the existence of the
interested parties, or
d. when a party is inadvertently left out
The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning
cancellation or correction of entries in civil
registry are separate and distinct. They may
not be substituted one for the other. If both
reliefs are to be sought in the same
proceedings all the requirements of Rule 103
and 108 must be complied with [Republic v.
Valencia, G.R. No. L-32181 (1986)]
Grounds for cancellation or correction
Upon good and valid grounds [Sec. 2]
EFFECT OF R.A. 9048
The intent and effect of the law is to exclude
the change of first name from the coverage of
Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the
Civil Registry) of the ROC, until and unless an
Page 349 of 525
REMEDIAL LAW
administrative petition for change of name
is first filed and subsequently denied. In
sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial [Silverio v.
Republic, G.R. No. 174689 (2007)]
This does not mean, however, that the trial
courts are divested of its authority or
jurisdictions over petitions for correction of
entries and change of first name or nickname.
It only means that the local civil registrar has
primary, not exclusive, jurisdiction over such
petitions for correction of clerical errors and
change of first name or nickname. RA 9048
was enacted to give the people an option to
have the erroneous entries in their civil records
corrected via an administrative proceeding
before the local civil registrar that is less
expensive and more expeditious.
Nonetheless, it would be inappropriate to apply
the procedure prescribed in RA 9048 to
petitions for the correction of entries in the civil
registry before the courts. The promulgation of
rules of procedure for courts of justice is the
exclusive domain of the Supreme Court [Re
Final Report On The Judicial Audit Conducted
At The Regional Trial Court, Br. 67, Paniqui,
Tarlac, Adm. Matter No. 06-7-414-RTC (2007)]
If one wants to either
● Change one’s first name or nickname and
the ground therefor is one of those stated
in Sec. 4, R.A. 9048, or
● Cancel and or correct any entries in the civil
registry that is clearly a clerical or
typographical error
Then the REMEDY is R.A. 9048.
If application is denied, one can either
● appeal the decision to the proper judicial
court, or
● avail of Rule 103 or Rule 108, filing the
appropriate petition before the proper court
HOWEVER, if one wants to change one’s
name (first name, surname or both) and the
ground therefor is one of those allowed by law
and jurisprudence, REMEDY is Rule 103.
U.P. LAW BOC SPECIAL PROCEEDINGS
AND, if one wants to cancel and or correct any
entries in the civil registry AND the correction
and cancellation entails a modification or
increase in substantive rights, REMEDY is
Rule 108.
R.A. 9048, as amended by R.A. 10172
Procedure
Filing of petition for the correction of a
clerical or typographical error in an entry
and/or change of first name or nickname in
the civil register, with its supporting
documents [Sec. 5]
↓ Sec. 4.
The city or municipal civil registrar or the
consul general shall examine the petition
and its supporting documents [Sec. 6]
↓ consul general of the action taken on the
If sufficient in form and substance, the
examiner shall post the petition in a
conspicuous place for 10 consecutive days
[Sec 6]
↓
In case of a petition for change of first name,
the petition has to be published once a week
for 2 consecutive weeks in a newspaper of
general circulation, with the petitioner also
submitting a certification that he has no
pending case or prior criminal record [Sec.
6]
↓ the civil registrar general or file the appropriate
Within 5 working days after the completion
of the posting and or publication
requirement, the city or municipal civil
registrar or the consul general shall render a
decision [Sec. 6]
Entries subject to change/cancellation or
correction
a. Clerical or typographical errors, and
b. Change of
1. First name or nickname
2. Day and month in date of birth, or
3. Sex of a person where it is patently
clear that there was a clerical or
typographical error or mistake in the
entry,
can be corrected or changed by the concerned
city or municipal civil registrar or consul general
Page 350 of 525
REMEDIAL LAW
[Sec. 1]
If the petition is granted
The civil registrar general shall, within 10
working days from receipt of the decision
granting a petition, exercise the power to
impugn such decision by way of an objection
based on the following grounds
a. The error is not clerical or typographical
b. The correction of an entry or entries in the
civil register is substantial or controversial
as it affects the civil status of a person, or
c. The basis used in changing the first name
or nickname of a person does not fall under
The civil registrar general shall immediately
notify the city or municipal civil registrar or the
decision. Upon receipt of the notice thereof, the
city or municipal civil registrar or the consul
general shall notify the petitioner of such
action.
If the civil registrar general fails to exercise his
power to impugn the decision of the city or
municipal civil registrar or of the consul general
within the period prescribed herein, such
decision shall become final and executory.
The petitioner may seek reconsideration with
petition with the proper court [Sec. 7]
If the petition is denied
The petitioner may either appeal the decision
to the civil registrar general or file the
appropriate petition with the proper court [Sec.
7]
R.A. 9048 proceeding merely a summary
proceeding
R.A. 9048 refers specifically to the
administrative summary proceeding before the
local civil registrar [Re Final Report On The
Judicial Audit Conducted At The Regional Trial
Court, Br. 67, Paniqui, Tarlac, Adm. Matter No.
06-7-414-RTC (2007)]
U.P. LAW BOC SPECIAL PROCEEDINGS
Ground for cancellation or correction
Clerical or typographical errors
Meaning of clerical or typographical error
A mistake committed in the performance of
clerical work in writing, copying, transcribing or
typing an entry in the civil register that
a. Is harmless and innocuous, such as
1. Misspelled name or place of birth
2. Mistake in entry of day and month in
date of birth or sex or the like
b. Is visible to the eyes or obvious to the
understanding
c. Can be corrected or changed only by
reference to other existing record or
records
d. Does not involve the change of nationality,
age, status or sex of the petitioner
[Sec. 2(3), R.A. 9048, as amended]
Ground for change of first name or
nickname:
a. The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce
b. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
by that by that first name or nickname in the
community, or
c. The change will avoid confusion [Sec. 4]
APPEALS IN
S.
SPECIAL PROCEEDINGS
[Rule 109]
1. Judgments and Orders for
Which Appeal May Be Taken
An appeal may be taken from an order or
judgement which:
a. allows or disallows a will
b. determines who are the lawful heirs or the
distributive share of the estate to which
such heir is entitled
c. allows or disallows any claim against the
estate or any claim presented on behalf of
the estate to offset a claim against it.
Page 351 of 525
REMEDIAL LAW
d. settles the account of an executor,
administrator, trustee, or guardian.
e. constitutes in estate proceedings or those
relating to the administration of a trustee or
a guardian, a final determination in the
lower court of the rights of the party
appealing
Exception: no appeal allowed from the
appointment of a special administrator
f. is the final order or judgment rendered in
the case, and affects the substantial rights
of the person appealing
Exception: unless order is a denial of
motion for new trial or reconsideration
Order of probate court that certain properties
should be included in the inventory is
interlocutory and cannot be appealed under
Section 1, Rule 109. Remedy is certiorari under
Rule 65. [Aranas v. Mercado, G.R. No. 156407
(2014)].
2. When to Appeal
In certain special proceedings, appeal may be
taken from one aspect of the case while the
court proceeds to hear another aspect of the
case.
Example: An appeal may be taken from an
order admitting the will to probate, while the
court proceeds to resolve its intrinsic validity.
Where a court issues an order granting letters
testamentary in solidum, it cannot be
questioned by filing a petition for review on
certiorari under Rule 45. In that case, the
appeal should have been brought up to the CA
under Rule 45, pursuant to Rule 109. [Republic
v. Marcos, (2009)].
Summary of Periods to Appeal
Deadline to file an
Proceeding
appeal
Special proceedings Notice of appeal:
15 days from notice
of the order or
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

judgement appealed taken for purposes of further remedies the

from parties may avail of.

Record on appeal: Where multi-appeals are allowed, we see no

30 days from notice reason why a separate petition
for certiorari cannot be allowed on an
of the order or
interlocutory aspect of the case that is separate
judgement appealed
and distinct as an issue from the aspect of the
from if the case case that has been adjudged with finality by the
involves multiple lower court. [Briones v. Henson-Cruz, G.R. No.
appeals 159130 (2008)

[Sec. 3, Rule 41] When record on appeal required

Writ of habeas 48 hours from notice The test for determining if a record on appeal
corpus of judgement [Sec. is required is to ask if the court a quo
3, Rule 41] notwithstanding the appeal still needs to hold
Writ of amparo 5 working days from on to the original record since it has not fully
notice of judgement disposed of or decided the case.
[Republic v. Nishina, G.R. No. 186053 (2010)]
[Sec. 19, A.M. No.
07-9-12-SC]
Writ of habeas data 5 working days from 4. Rule on Advance Distribution
notice of judgement
Although it is within the trial court’s discretion
[Sec. 19, A.M. No.
whether or not to permit the advance
08-1-16-SC] distribution of the estate, its exercise of
discretion is qualified by the following:
3. Modes of Appeal 1. Only part of the estate not affected by a
pending controversy or appeal may be the
Rules 40, 41, 42, and 45 apply in conformity subject of advance distribution [Sec. 2,
with Sec. 2, Rule 72 on the applicability of rules Rule 109]; and
of civil actions. 2. The distributes must post a bond, fixed by
the court, conditioned for the payment of
outstanding obligations of the estate [Sec.
If ordinary appeal under Rule 40 or 41, and the
1, par. 2, Rule 90]
special proceedings are subject to multiple
appeals, appeal period is 30 days where both
notice of appeal and record on appeal are
required. [De Leon & Wilwayco (2015)]

Multiple appeals
Permitted in special proceedings as practical
recognition of the possibility that material
issues may be finally determined at various
stages of the special proceedings. [Aranas v.
Mercado, G.R. No. 156407 (2014)]

In this multi-appeal mode, the probate court

loses jurisdiction only over the subject matter
of the appeal but retains jurisdiction over the
special proceeding from which the appeal was

Page 352 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

CRIMINAL
PROCEDURE
REMEDIAL LAW

Page 353 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

III. CRIMINAL PROCEDURE

A. GENERAL MATTERS

1. Jurisdiction over Subject Matter and Jurisdiction over Person of the

Accused Distinguished

Jurisdiction over Jurisdiction over Territorial jurisdiction

subject matter person of the accused

Definition The authority of the court… The place of the

…to
hear and decide the
case. Simply put, it
means jurisdiction
over the offense
charged
commission of the
…over the person offense charged
charged determines venue of
the action, and is an
essential element of
jurisdiction [Alfelor v.
Intia G.R. No. L-27590
(1976)]

Exception: Those
crimes mentioned in
Art. 2, RPC are not
covered by this rule

How Conferred by law; Acquired through: The offense should

acquired cannot be conferred 1. Arrest of the have been committed
by the parties accused or any one of its
2. Consent of the essential ingredients
Jurisdiction cannot accused took place within the
be fixed by the will of 3. Waiver of objections territorial jurisdiction of
the parties; nor as when the said court. [Uy v. CA,
acquired through accused enters his G.R. No. 119000
waiver, or enlarged plea (1997)] One cannot be
by the parties’ 4. Voluntary held to answer for any
omission; nor submission of the crime he committed
conferred by accused to the except in the
acquiescence of the jurisdiction of the jurisdiction where he
court, or by mere court. committed said crime
administrative policy [People v. Mercado,

Page 354 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

of any trial court G.R. No. L-2760

[Cudia v. Court of (1950)]
Appeals, G.R. No. Note: there is no
110315 (1998)] voluntary appearance
in case of special
appearance to
challenge the
jurisdiction of the court
[Garcia v.
Sandiganbayan, G.R.
Nos. 170122 & 171381
(2009)]

How to Jurisdiction is N/A Jurisdiction is

determine determined by the determined by the
which court allegations in the allegations in the
has complaint or complaint or
jurisdiction information [Avecilla information [Avecilla v.
v. People, G.R. No. People, G.R. No.
46370 (1992)]. 46370 (1992)].

Applicable Jurisdiction is N/A N/A

law to determined by the
determine procedural law in
jurisdiction force at the time of
the institution of the
action; not the law in
force at the time of
the commission of
the crime [People v.
Lagon, G.R. No.
45815 (1990)]

In determining
whether the court
has jurisdiction over
an offense, the
penalty to be
considered is that
which may, under
law, be imposed for
the offense and not

Page 355 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

the actual penalty

imposed after trial

Waiver of Cannot be waived by Right to object may be Cannot be waived by

objection the parties waived (e.g., failure of the parties
the accused to object
in time)

Principle of adherence of Exception: When subsequent legislation:

jurisdiction/continuing jurisdiction
General rule: Once a court acquires
jurisdiction over a controversy, it shall continue
to exercise it until final determination of the
case [Mendoza v. Comelec, G.R. No. 188308
(2009)].
It is not affected by:
1. A valid amendment of the information
[People v. Chupeco, G.R. No. L-19568
(1964)]; or
2. Subsequent legislation vesting jurisdiction
in another tribunal.
1. Expressly provides, or
2. Is clearly intended to apply to actions
pending before its enactment [Palana v.
People, G. R. No. 149995 (2007)]
Dismissal of the case on jurisdictional
grounds
General rule: An objection on the ground that
the court lacks jurisdiction over the subject
matter may be raised or considered motu
proprio by the court at any stage of the
proceedings or appeal
Exception: Estoppel by reasons of public
policy, as when the party has initially invoked
such jurisdiction [Tijam v. Sibonghanoy, G.R.
no. L-21450 (1968)]

Page 356 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
2. Requisites for Exercise of
Criminal Jurisdiction
Criminal jurisdiction
The authority to hear and try a particular
offense and impose the punishment for it
[People v. Mariano, G.R. No. L-40527 (1976)]
Requisites for a court to exercise
jurisdiction:
a. Subject matter jurisdiction: the offense is
one it is authorized by law to take
cognizance of
b. Territorial jurisdiction: the offense has
been committed within its territorial
jurisdiction
c. Jurisdiction over the person: the person
charged must have been brought before it
for trial, forcibly by arrest or upon his
voluntary submission to the court.
All three requisites must concur before a court
can acquire jurisdiction [Antiporda v.
Garchitorena, G.R. No. 133289 (1999), citing
Arula v. Espino, G.R. No. L-28949 (1969)].
3. Jurisdiction of Criminal
Courts
a. MTC/MeTC/MCTC
Jurisdiction
Except those cases falling within the
jurisdiction of higher courts, these courts shall
have exclusive original jurisdiction over:
1. Violations of city or municipal ordinances
committed within their territorial jurisdiction
[Sec. 32, B.P. 129, as amended]
2. Offenses punishable with imprisonment not
exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable or accessory penalties,
including civil liability irrespective of its
kind, nature, or value [Sec. 32, B.P. 129]
Page 357 of 525
REMEDIAL LAW
3. Offenses involving damage to property
through criminal negligence [Sec. 32, B.P.
129]
4. Summary procedure in certain cases
a. Violations of traffic laws, rules and
regulations
b. Violations of the rental law
c. B.P. 22 cases
d. Violation of municipal and city
ordinances
e. All other criminal cases where the
penalty prescribed by law for the
offense charged is imprisonment not
exceeding 6 months, or a fine not
exceeding P1,000, or both
f. Offenses involving damage to property
through criminal negligence where the
imposable penalty does not exceed
P10,000 [Sec. 1(b), 1991 Rules on
Summary Procedure]
5. Special jurisdiction to decide on
applications for bail in the absence of all
RTC judges in a province or city [Sec. 35,
B.P. 129, as amended by R.A. 7691].
Concurrent original jurisdiction with RTCs over
violations of R.A. 7610 (Child Abuse Act) in
cities or provinces where there are no family
courts yet, depending on the penalties
prescribed for the offense charged [Sec. 16-A,
R.A. 7610, as amended by R.A. 9231]
SC Admin Circ. No. 09-94 (1994):
# The provisions of Sec. 32(2) of B.P. 129,
apply only to offenses punishable by
imprisonment or fine, or both, in which
cases the amount of the fine is disregarded
in determining the jurisdiction of the court.
# In cases where the law only imposes the
fine, and such fine exceeds P4,000, the
RTC shall have jurisdiction, including
offenses committed by public officers
and employees in relation to their office
U.P. LAW BOC CRIMINAL PROCEDURE
b. RTC
Jurisdiction
Exclusive original jurisdiction in criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, EXCEPT those
under the exclusive and concurrent jurisdiction
of the Sandiganbayan [Sec. 20, B.P. 129]
Appellate jurisdiction over cases decided by
first-level courts within its territorial jurisdiction
[Sec. 22, B.P. 129, as amended by R.A. 7691]
Jurisdiction over criminal cases under specific
laws such as:
1. Criminal and civil aspects of written
defamation [Art. 360, RPC]
2. Criminal cases commenced by information
against a child upon determination of
probable cause by the prosecutor [Sec. 33,
R.A. 9344, as amended by R.A. 10630]
where there are no family courts [Sec. 4(g),
R.A. 9344]
3. Violence against women and children, in
the absence of an RTC designated as a
Family Court where the offense was
committed [R.A. 9262 (Anti-VAWC Act)]
4. Designated special courts over cases in
violation of R.A. 9165 (Dangerous Drugs
Act) [Sec. 90, R.A. 9165]
5. Violations of intellectual property rights [SC
Admin-Circ. No. 03-03 (2003)]
6. Money laundering cases [Sec. 5, R.A.
9160] EXCEPT those committed by public
officers and private persons in conspiracy
with such public officers, as jurisdiction is
with the Sandiganbayan
For offenses cognizable by the Sandiganbayan
where the information a) does not allege any
damage to the government or any bribery; or b)
the alleged damage to the government or the
bribery arising from the or closely related
transactions are of an amount not exceeding
P1 million [Sec. 4, P.D. 1606, as amended by
R.A. 10660]
Page 358 of 525
REMEDIAL LAW
c. Sandiganbayan
Jurisdiction
1. Violations of R.A. 3019
2. Violations of R.A. 1379
3. Violations of Book 2, Title VII, Section 2,
Chapter 2 of the RPC (Indirect Bribery,
Corruption of Public officials, etc.), where
one or more of the accused are officials
occupying the following positions in the
government, at the time of the commission
of the offense:
a. Officials of the executive branch
occupying the positions of regional
direction and higher, otherwise
classified as Grade “27” and higher of
R.A. 6758 (see enumeration in RA
10660)
b. Members of Congress and officials
thereof classified as “Grade 27” and up
under R.A. 6758 (see enumeration in
RA 10660)
4. Other offenses, simple or complex, with
other crimes committed by the above-
mentioned public officials and employees
in relation to their office.
5. Criminal cases filed pursuant to and in
connection with EO 1, 2, 14, 14-A (1986)
An offense is deemed committed in relation to
his office when:
1. The office is a constituent element of the
crime as defined in the statute
2. The offense be intimately connected with
the office of the offender
3. The fact that the offense was committed in
relation to the office must be alleged in the
Information [People v. Magallanes, G.R.
No. 118013-14 (1995)]
Failure to allege that the offense was
committed in relation to the office or was
necessarily connected with the discharge of
their functions vests jurisdiction with the RTC.
[People v. Cawaling G.R. No. 117970 (1998)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

d. Military Courts 10. Where the charges are manifestly false

and motivated by vengeance
General rule: Ordinary courts will have 11. Where there is no prima facie case and a
jurisdiction over cases involving members of motion to quash on that ground has been
the armed forces, and other persons subject denied
to military law, regardless of who the co- 12. Where preliminary injunction has been
accused or victims are. issued by the SC to prevent the threatened
unlawful arrest of petitioners [Brocka v.
Exception: When the offense is service-
Enrile, G.R. No. 69863-65 (1990)]
oriented, it will be tried by the court martial;
13. To prevent the use of the strong arm of the
Provided, that the President may, in the
law in an oppressive and vindictive manner
interest of justice, order or direct, at any time
before arraignment, that any such crimes or [Hernandez v. Albano, G.R. No. L-19272
offenses be tried by the proper civil courts. (1967)]
[Sec. 1, R.A. 7055]
B. PROSECUTION OF
4. When Injunction May Be
OFFENSES
Issued To Restrain Criminal
Prosecution 1. Criminal Actions; How
General rule: Criminal prosecution may NOT Instituted
be blocked by court prohibition or injunction
[Brocka v. Enrile, G.R. No. 69863-65 (1990)] The institution of a criminal action generally
for the reason that public interest requires that depends upon whether the offense is one
criminal acts be immediately investigated and which requires a preliminary investigation (PI)
prosecuted for the protection of society or not:
[Domingo v. Sandiganbayan, G.R. No. 109376
(2000)] Offenses requiring Other offenses
PI
Exceptions
1. To afford adequate protection to the Nature of Offenses
constitutional rights of the accused
2. For the orderly administration of justice Those where the Offenses where the
3. To avoid oppression or multiplicity of suits penalty prescribed penalty prescribed
4. Where there is a prejudicial question which by law is at least 4 by law is less than
is sub judice years, 2 months 4 years, 2 months,
5. Where acts of the officer are without or in and 1 day [Sec. 1, and 1 day
excess of authority Rule 112, as
6. When the prosecution is under an invalid amended by A.M.
law, ordinance or regulation No. 05-8-26-SC]
7. When double jeopardy is clearly apparent
8. When the court has no jurisdiction over the How Instituted
offense
9. When it is a case of persecution rather than
prosecution

Page 359 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

By filing the a. Filed directly Criminal cases required to be filed with

lupon
complaint with the with the MTCs and
Offenses punishable by imprisonment not
appropriate officer MCTCs; or
exceeding one (1) year or a fine not exceeding
for PI [Sec. 1(a), b. Filed with the
P5,000 [Sec. 408(c), LGC] and where the
Rule 110] office of the
parties actually reside in the same city or
prosecutor [Sec. municipality
1(b), Rule 110]
c. In Manila and Exceptions, when [PGP-ODP]:
other chartered 1. There is no Private offended party [Sec.
cities, the 408(d), LGC]
complaint shall be 2. One party is the Government or any
filed with the office subdivision thereof [Sec. 408(a), LGC];
of the prosecutor 3. One party is a Public officer or employee,
unless otherwise and the dispute relates to the performance
provided in their of his Official functions [Sec. 408(b), LGC];
charters [Sec. 1(b), 4. Parties actually reside in Different cities or
Rule 110] municipalities, EXCEPT where such
barangays adjoin each other AND the
parties agree to amicable settlement by an
Effect of institution appropriate lupon [Sec. 408(f), LGC];
The institution of a criminal action shall 5. Accused is under Police custody or
interrupt the running of the prescription period detention
of the offense charged UNLESS otherwise
provided in special laws [Sec. 1, Rule 110] 2. Who May File; Crimes That
Falling under the authority of the lupon
Cannot be Prosecuted De
While the dispute is under mediation, Officio
conciliation or arbitration, the prescriptive
periods shall be interrupted upon the filing of General rule: Complaint or Information may
the complaint with the Punong Barangay only be filed or dismissed if there is prior written
[Sec. 410, LGC] authority or approval of the provincial or city
prosecutor or chief state prosecutor or the
Limitation: Interruption shall not exceed 60 Ombudsman or his deputy [Sec. 4, Rule 112,
days from filing of complaint with the punong as amended by A.M. 05-8-26-SC] .
barangay [Sec. 410(c), LGC].
Note: Secs. 3 and 4, Rule 110 discuss who
The prescriptive periods shall resume upon should subscribe (not file) the complaint or
receipt by the complainant information.
1. of the complaint or
2. the certificate of repudiation or Exceptions: Crimes that cannot be
3. of the certification to file action issued by prosecuted de oficio [ACSAAD]:
the Lupon or Pangkat Secretary 1. Adultery
2. Concubinage
3. Seduction
4. Abduction
5. Acts of Lasciviousness

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

6. Defamation outrage in silence rather than go through with

the scandal of a public trial [People v.
Rationale Yparraguirre, G.R. No. 124391 (2000)]
This was imposed out of consideration for the
aggrieved party who might prefer to suffer the

Adultery and Concubinage Seduction, Abduction, Acts of Defamation, which

Lasciviousness consists of imputation
of any of the foregoing
offenses

Who Can File

Offended Spouse Offended party, it includes: Offended Party

a. Minors, even independently of
those in item b, except if
incompetent or incapable
b. Parents, grandparents, guardian
– right to file shall be exclusive of
all other persons and shall be
exercised successively in this
order
c. State – Only if the offended party
dies or becomes incapacitated
before she can file the complaint,
and she has no known parents,
grandparents or guardian

Requirements

a. Must include both guilty The offender must not have been None
parties, if both alive pardoned by any of a and b in the
b. Must not have consented preceding column
to the offense or
pardoned the offenders
c. c. Marital relationship
must still be subsisting
[Pilapil v. Ibay-Somera,
G.R. No. 80116, (1989)].

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

EVENTS THAT MAY OCCUR AFTER THE [People v. de Guzman, [G.R. No. 185843
FILING OF THE CASE (2010)]
a. Death of offended party
Pardon distinguished from Consent
Death after filing the complaint would not
Pardon Consent
deprive the court of jurisdiction. The death of
the offended party in private crimes is essential Definition
solely for the initiation of the action. [People v.
Diego, G.R. No. 1626 (1937)] Refers to past acts Refers to future acts

It is not one of the causes for extinguishment of In order to absolve In order to absolve
criminal liability enumerated in Art. 89 of the the accused from the accused from
Revised Penal Code. liability, it must be liability, it is sufficient
extended to both even if granted only
b. Desistance by offended party
offenders to the offending
spouse
Desistance does not bar the People of the
Philippines from prosecuting the criminal
action, but it operates as a waiver of the right When given
to pursue civil indemnity [People v. Amaca,
G.R. No. 110129 (1995)]. Given after the Given before the
commission of the commission of the
c. Pardon by offended party
crime but before the crime
institution of the
General rule: A pardon by the offended party
criminal action
does not extinguish criminal action but civil
liability with regard to the interest of the injured In adultery and concubinage
party is extinguished by his express waiver
[Art. 23, RPC]. If there is more than one
May be done Can only be done
accused, the pardon must be extended to all
expressly or expressly
offenders.
impliedly
Exception: Seduction, abduction and acts of
lasciviousness shall not be prosecuted if the There is implied
offender has been expressly pardoned by the pardon when the
offended party or her parents, grandparents or offended party
guardian [Art. 344, RPC] [Sec. 5, Rule 110] continued to live with
his spouse even
When should pardon be done after the commission
General rule: Pardon must be made before the of the offense. There
filing of the criminal complaint in court [People is no implied pardon
v. Bonaagua, G.R. No. 18897 (2011)] when the wife
continues living in
Exception: In rape, marriage between the the conjugal home
offender and the offended party would be after her arrest only
effective as pardon even when the offender
in order to take care
has already commenced serving his sentence

Page 362 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
of their children
[Ligtas v. CA, G.R.
No. L-47498 (1987)]]
In Seduction, Abduction and Acts of
Lasciviousness
Must be expressly Offended party
made cannot consent to
the crime
d. Subsequent marriage
General rule: In cases of seduction,
abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him,
together with the co-principals, accomplices,
and accessories after the fact of the above-
mentioned crimes [Art. 344, RPC]
Exceptions:
1. Marriage was invalid or contracted in bad
faith to escape criminal liability [People v.
Santiago, G.R. No. L-27972 (1927)]
2. In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
concerned [People v. Bernardo (38 O.G.
3479)]
Remedies if the prosecutor refuses to file
an information
a. Action for mandamus to compel the
prosecutor to charge the accused, in case
of grave abuse of discretion
b. Lodge a complaint before the court having
jurisdiction over the offense;
c. Take up the matter with the Department of
Justice under the appropriate
administrative procedure;
d. Institute an administrative charge against
the erring prosecutor; and
Page 363 of 525
REMEDIAL LAW
e. File criminal action against the prosecutor
for negligence to prosecute or tolerance of
the crime [Art 208, RPC] with the
corresponding civil action for damages for
failure to render service by a public officer
[Art 27, NCC]
3. Criminal Actions, When
Enjoined
See When Injunction May Be Issued To
Restrain Criminal Prosecution, supra.
4. Control of Prosecution
General rule: All criminal actions commenced
by a complaint or information shall be
prosecuted under the direction and control
of the prosecutor.
Exception: A private prosecutor may be
authorized in writing by the Chief of the
Prosecution office or the Regional State
Prosecutor to prosecute the case subject to the
approval of the court [Sec. 5, Rule 110, as
amended by A.M. No. 02-2-07-SC (2002)]
Conditions for a private prosecutor to
prosecute a criminal action
a. The public prosecutor has heavy work
schedule or there is no public prosecutor
assigned in the province or the city
b. The private prosecutor is authorized in
writing by the Chief of the Prosecutor office
or the Regional State Prosecutor
c. The authority of the private prosecutor was
approved by the Court
d. The private prosecutor shall continue to
prosecute the case up to the end of the trial
unless the authority is revoked or otherwise
withdrawn. [Sec. 5, Rule 110, A.M. No. 02-
2-07-SC (2002)]
e. In case of withdrawal or revocation of
authority, the same must be approved by
the court [DOJ Memorandum Circular No.
25 (2002)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

f. The prosecution of the civil liability has not EXTENT OF PROSECUTOR’S CONTROL
been reserved or waived.
Prior to filing After filing

Rule in Cases filed before MTCs/MCTCs

When the prosecutor assigned thereto or to the Matters which are The following
case is not available, the following may within the control of matters are already
prosecute the case: the prosecutor within the control of
a. Offended party 1. What case to file the court and no
b. Any peace officer; or 2. Whom to longer within the
c. Public officer charged with the enforcement prosecute discretion of the
of the law violated may prosecute the case. 3. Manner of prosecutor:
prosecution 1. Suspension of
This authority shall cease upon actual 4. Right to arraignment [Sec
intervention of the prosecutor or upon elevation
withdraw 1, Rule 116]
of the case to the RTC [OCA Circular No. 39-
information 2. Granting a
02, stating in toto Sec. 5, Rule 110, as
before reinvestigation
amended by A.M. No. 02-2-07-SC]
arraignment [Levista v.
Cases in the Court of Appeals and the even without Alameda, G.R.
Supreme Court notice and No. 182677
General rule: Only the Solicitor General may hearing [Crespo (2010)]
bring or defend actions in behalf of the v. Mogul, G.R. 3. Dismissal of the
Republic of the Philippines, or represent the No. L-53373 case [Crespo v.
People of the Philippines or State in criminal (1987)] Mogul, G.R. No.
proceedings before the SC and the CA [Cariño L-53373 (1987)]
v. De Castro, G.R. No. 176084 (2008)] 4. Downgrading of
the offense or
Exceptions: dropping of
a. When there is denial of due process of law accused before
to the prosecution and the State or its
plea [Sec. 14(b),
agents refuse to act on the case to the
Rule 110]
prejudice of the State and the private
offended party [Cariño v. De Castro, G.R.
No. 176084 (2008)], and Once a complaint or information is filed in court,
b. When the private offended party questions any disposition of the case as its dismissal or
the civil aspect of a decision of a lower the conviction or acquittal of the accused rests
court [Heirs of Delgado v. Gonzalez, G.R. on the sound discretion of the court. A motion
No. 184337 (2009)] to dismiss should be filed with the court, which
has the option to grant or deny it [Crespo v.
Cases elevated to the Sandiganbayan and Mogul, G.R. No. L-53373 (1987)]
the Supreme Court
The Office of the Ombudsman, through the
Special Prosecutor, shall represent the People
of the Philippines, except in cases filed
pursuant to EO Nos. 1,2, 14, 14-A as these are
under the PCGG [Sec. 4, P.D. 1606, as
amended by R.A. 10660]

Page 364 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Limitations on the court’s control 5. Sufficiency of Complaint or

a. The prosecution is entitled to notice of
hearing;
Information
b. The court must suspend arraignment, upon
motion by the proper party, when a petition Complaint Information
for review of the resolution of the
prosecutor is pending at either the DOJ, or Definition
the OP; provided, that the period of
suspension shall not exceed 60 days
counted from the filing of the petition with Sworn written statement Accusation in
the reviewing office [Sec. 11(c), Rule 116] charging a person with writing, charging a
c. The court must make its own independent an offense, subscribed person with an
evaluation or assessment of the merits of by the offended party, offense, subscribed
the case (e.g. on a motion to dismiss any peace officer or by the prosecutor
[should be to quash]). Otherwise, there will other public officer and filed with the
be a violation of private complainant’s right charged with the court [Sec. 4, Rule
to due process and erroneous exercise of enforcement of the law 110]
judicial discretion [Martinez v. CA, [G.R. violated [Sec. 3, Rule
No. L-112387 (1994)] 110]

Who subscribes
Effect of lack of presence of the fiscal
Although the private prosecutor had previously
been authorized to present the evidence for the Subscribed by: Subscribed by the
prosecution, the absence of the City Fiscal at a. offended party; prosecutor
the hearing means that the prosecution of the b. any peace officer;
case was NOT under the control of the City or *Indispensable
Fiscal; thus, it follows that the evidence c. other officer requirement.
presented by the private prosecutor at said charged with the
hearing could not be considered as enforcement of the
evidence for the plaintiff [People v. Beriales, law violated.
G.R. No. L-39962 (1976)]
Where filed
Note: OCA Circular No. 39-02 [stating in toto
Sec. 5, Rule 110, as amended by A.M. No. 02- May be filed in court or Filed with the court
2-07-SC]: However, in MTCs or MCTCs when the prosecutor’s office
the prosecutor assigned thereto or to the [Sec. 1, Rule 110]
case is not available, the offended party,
any peace officer, or public officer charged Oath Requirement
with the enforcement of the law violated
may prosecute the case. This authority shall
Must be “sworn,” hence Requires no oath
cease upon actual intervention of the
under oath
prosecutor or upon elevation of the case to the
*Fiscal filing the
RTC.
information is
acting under the
oath of his office

Page 365 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
[NOTE: The complaint contemplated under
Sec. 3 differs from the complaint filed in the
prosecutor’s office for purposes of preliminary
investigation.]
CONTENT REQUIRED FOR VALIDITY OF
AN INFORMATION
A complaint or information is sufficient if it
states the [ADA-ODP]:
a. Name and surname of the Accused; or
any appellation or nickname by which he is
known or had been known
i. When an offense is committed by more
than one person, all of them shall be
included in the complaint or information
[Sec. 6, Rule 110]
b. Designation of the offense given by the
statute
c. Acts or Omissions complained of as
constituting the offense
d. Name of the Offended party
e. Approximate Date of the commission of
the offense, and
f. Place where the offense was committed
FORM REQUIRED FOR VALIDITY
a. In writing
b. In the name of the People of the Philippines
c. Against all persons responsible for the
offense involved [Sec. 2, Rule 110]
Test for sufficiency of the information
Whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty of the
offense charged [Lazarte v. Sandiganbayan,
G.R. No. 180122 (2009)]
General rule: A defective information cannot
support a judgment of conviction
Exception: Where the defect in the information
was cured by evidence during the trial and no
objection appears to have been raised
[Abunado v. People, G.R. No. 159218 (2004)]
Page 366 of 525
REMEDIAL LAW
Waiver of objection to sufficiency
General rule: An accused is deemed to have
waived his right to assail sufficiency of the
information when he voluntarily entered a plea
during arraignment and participated in the trial
[Frias v. People, G.R. No. 171437 (2007)].
Objections relating to the form of the complaint
or information cannot be made for the first time
on appeal. The accused should move for a bill
of particulars or for quashal of information
before arraignment, otherwise he is deemed to
have waived his objections to such a defect
[People v. Teodoro, G.R. No. 172372 (2009)]
Exception: When the defect consists in the
lack of authority of the prosecutor who filed the
information, as such defect would be
jurisdictional. [Sec. 9, Rule 117]
a. Name of the accused
The complaint or information must state the
name and surname of the accused or any
appellation or nickname by which he has been
or is known.
If his name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such name shall be
inserted in the complaint or information and
record. [Sec. 7, Rule 110]
John Doe Informations
When the information does not sufficiently
describe the accused and all are described as
“John Does,” the arrest warrants against them
are void. [Pangandaman v. Casar, G.R. No. L-
71782 (1988)]
Mistake in the name of the accused
Mistake does not necessarily amount to a
mistake in the identity of the accused
U.P. LAW BOC CRIMINAL PROCEDURE
especially when sufficient evidence is adduced
to show that the accused is pointed to as one
of the perpetrators of the crime. [People v.
Amodia, G.R. No. 173791 (2009)]
b. Name of the offended party
The complaint or information must state the
name and surname of the person against
whom or against whose property the offense
was committed, or any appellation or nickname
by which such person has been or is known. If
there is no better way of identifying him, he
must be described under a fictitious name.
a. In crimes against property, if the name of
the offended party is unknown, the property
must be described with such particularity
as to properly identify the offense charged
b. If the true name of the person against
whom or against whose property the
offense was committed is thereafter
disclosed or ascertained, the court must
cause such true name to be inserted in the
complaint or information and the record
c. If the offended party is a juridical person, it
is sufficient to state its name, or any name
or designation by which it is known or may
be identified, without need of averring that
it is a juridical person. [Sec. 12, Rule 110]
c. Date of commission
General rule: It is not necessary to state the
precise date the offense was committed. The
offense may be alleged to have been
committed on a date as near as possible to
the actual date of the commission.
Exception: When it is an essential element of
the offense (e.g., abortion, bigamy) [Sec. 11,
Rule 110]
Variance in alleged date from proven in trial
General rule: Allegation in an information of a
date different from the one established during
trial is not fatal to the prosecution. It is just
deemed supplanted by evidence presented
Page 367 of 525
REMEDIAL LAW
during trial or may even be corrected by a
formal amendment of the information.
Exception: Fatal when discrepancy is so great
that it induces the perception that the
information and the evidence are no longer
pertaining to one and the same offense. The
defective allegation in the information is struck
down for violating the right of the accused to be
informed [People v. Delfin, G.R. No. 201572
(2014)]
d. Place of commission
General rule: The complaint or information is
sufficient if it can be understood from its
allegations that the offense was committed or
some of its essential ingredients occurred at
some place within the jurisdiction of the court.
Exception: If the particular place where it was
committed constitutes an essential element of
the offense charged or is necessary for its
identification [Sec. 10, Rule 110]
6. Designation of Offense
The designation of the offense given by the
statute must be stated in the complaint or
information with the averment of acts or
omissions constituting the offense and the
attendant qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section
or subsection of the statute punishing it. [Sec.
8, Rule 110]
Enough to describe with sufficient
particularity
Specific acts of accused do not have to be
described in detail in the information, as it is
enough that the offense be described with
sufficient particularity to make sure the
accused fully understands what he is being
charged with [Guy v. People, G.R. No. 166794-
96 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE
Allegations in the complaint prevail:
# Over the designation of the offense: The
facts, acts or omissions alleged and not its
title, determine the nature of the crime. The
designation is only the prosecutor’s
conclusion [People v. Magdowa, G.R. No.
48457 (1941)]
# Over reference to the section or
subsection of the statute punishing the
crime: What is controlling and determines
the nature and character of the crime
charged are the facts alleged in the
information. [Batulanon v. People, G.R. No.
139857 (2006)]
Conviction of a more serious crime than
alleged
General rule: Accused may be convicted of a
crime more serious than that named in the title
if such crime is covered by the facts alleged in
the body of the information and its commission
is established by evidence [Buhat v. CA, G.R.
No. 119601 (1996)]]
Exception: Cannot be convicted under one act
when he is charged with the violation of another
if the change:
# Involves change in the theory of the trial
# Requires a different defense
# Surprises the accused in any way [US v.
Panlilio, G.R. No. L-9876 (1914)]
7. Cause of the Accusation
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated:
a. In ordinary and concise language; and
b. Not necessarily in the language used in the
statute; but
c. In terms sufficient to enable a person of
common understanding to know what
offense is being charged, as well as its
qualifying and aggravating circumstances
[Sec. 9, Rule 110]
Page 368 of 525
REMEDIAL LAW
Purpose of requiring allegation of every
element
1. To enable the court to pronounce proper
judgment
2. To furnish the accused with information as
to enable him to make a defense
3. As a protection against further prosecution
for the same cause
Failure to allege:
# Any of the elements of the offense:
Accused cannot be convicted of the
offense charged, even if the missing
elements have been proven during trial.
Even a plea of guilty will not cure such
defect, nor justify conviction.
# Qualifying and aggravating
circumstances: They are not considered
even if proven during trial [Viray v. People,
G.R. No. 205180 (2013)]
○ If aggravating circumstances were not
alleged, they can still be the basis for
awarding exemplary damages under
Art. 2229 (by way of example or
correction for public good) [People v.
Dalisay, G.R. No. 188106 (2009)]
Note: The failure to allege such cannot be
cured by an amendment of the information
after the accused entered his plea [People v.
Antonio, G.R. No. 142727 (2002)]]
Rule on Negative Averments
General rule: Whenever an accused claims to
be within the statutory exception, it is more
logical and convenient that he should aver and
prove the fact than that the prosecutor should
anticipate such defense, and deny it [Cabrera
v. Marcelo, G.R. Nos. 157419-20 (2004)]
Exception: Where the exemptions are so
incorporated in the language defining the crime
that the ingredients of the offense cannot be
accurately and clearly set forth if the exemption
were omitted, the indictment, to be sufficient,
must show that the person charged does not
U.P. LAW BOC CRIMINAL PROCEDURE
fall within the exemptions [People v. San Juan,
G.R. No. L-22944 (1968)]
When habitual delinquency is alleged
The information must specify:
a. Date of the commission of the previous
crimes
b. The date of last conviction or release
[People v. Venus, G.R. No. 45141 (1936)]
Where complex crime is charged
Allegations do not necessarily have to charge
a complex crime as defined by law. It is
sufficient that the information contains
allegations which show that one offense was a
necessary means to commit the other [People
v. Alagao, G.R. No. L-20721 (1966)]
8. Duplicity of the Offense;
Exception
Duplicity of the offense is the joinder of two or
more separate and distinct offenses in one and
the same information or complaint [Loney v.
People, G.R. No. 152644 (2006)]
General rule: A complaint or information must
charge only one offense.
Exception: Multiple offenses may be charged
when the law prescribes a single punishment
for various offenses [Sec. 13, Rule 110]:
a. Complex crimes - E.g., Acts committed in
furtherance of rebellion are crimes in
themselves but absorbed in the single
crime of rebellion [Enrile v. Salazar, G.R.
No. 92163 (1990)]
b. Special complex crimes
c. Continuous crimes (Requisites:)
i. Plurality of acts performed
separately during a period of time
ii. Unity of penal provisions violated
iii. Unity of criminal intent [People v.
Ledesma, G.R. No. L-41522
(1976)]
Page 369 of 525
REMEDIAL LAW
d. Crimes susceptible of being committed in
various modes
i. The allegations in the information
would be regarded as a description
of only one offense and information
is not rendered defective [Jurado v.
Suy Yan, G.R. No. L-20714 (1971)]
e. Crimes of which another offense is an
ingredient
f. When a single act violates different
statutes [Loney v. People, G.R. No.
152644 (2006)]
Remedy to duplicity of offense
Accused must move for the quashal of the
information before arraignment. [Sec. 1 and 3,
Rule 117]
Failure to file motion to quash
Accused is deemed to have waived the
objection and may be convicted of as many
offenses are charged and proved. [Sec. 3, Rule
120]
9. Amendment or Substitution
of Complaint or Information
Amendment
A change in either the form or substance of the
same offense in the Information. It is not a new
charge; it just supersedes the original
Information but relates back to the date at
which the original information was filed
[Teehankee Jr. v. Madayag, G.R. No. 103102
(1992)]
Not all defects in an information may be cured
by an amendment. An Information which is void
ab initio cannot be amended to obviate a
ground for quashal. An amendment which
operates to vest jurisdiction is impermissible
[Leviste v. Alameda G.R. No. 182677 (2010)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

KINDS OF AMENDMENT Amendment as to General rule:

Formal Amendment Substantial form can only be Amendment as to
Amendment made under two substance at this
conditions: stage of the case is
Definition 1. With leave of court; proscribed [People
and v. Zulueta, G.R. No.
This merely states This consists of the 2. It does not cause L-4017 (1951)]
with additional recital of facts prejudice to the since:
precision constituting the rights of the 1. It violates the right
something which is offense charged accused [Sec 14, to be informed of
already contained and determinative Rule 110] the nature and
in the original of the jurisdiction cause of the
information, and of the court accusation during
which, therefore [Teehankee v. his plea [Buhat v.
adds nothing Madayag, G.R. No. People, G.R. No.
essential for 103102 (1992)] 119601 (1996)]
conviction for the 2. It violates the rule
crime charged on double jeopardy.
[Gabionza v. CA,
G.R. No. 140311 Exception:
(2001)] Amendment may be
allowed if it is
When Amendment should be made beneficial to the
accused, [People v.
Before plea or arraignment Janairo, G.R. No.
129254 (2007)]
General rule: Any formal or substantial
amendment, made before the accused Test Whether An Amendment Is Formal
enters his plea may be done without leave Whether or not a defense under the original
of court [Sec. 14, Rule 110] information would be equally available after the
amendment and whether or not any evidence
Exception: If the amendment downgrades the accused might have would be equally
the nature of the offense charged in, or applicable in one form as in the other [People
excludes any accused from, the v. Degamo, G.R. No. 121211 (2003), citing
complaint/information, it can be made only Teehankee v. Madayag, G.R. No. 103102
1. Upon motion of the prosecutor (1992)]
2. With notice to the offended party and
SUBSTITUTION OF INFORMATION
3. With leave of court
When it becomes manifest at any time before
judgment that a mistake has been made in
After plea and during trial charging the proper offense and the accused
cannot be convicted of the offense charged or
any other offense necessarily included therein,
the accused shall not be discharged if there
appears good cause to detain him. In such

Page 370 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

case, the court shall commit the accused to Offense The amended Involves a
answer for the proper offense and dismiss the
involved information different
original case upon the filing of the proper
refers to the offense which
information [Sec. 19, Rule 119, ROC]
same offense does not
charged in the include those
Limitations of substitution
a. At any time before judgment [Sec. 14, Rule original provided in
110] information or the original
b. The accused cannot be convicted of the to an offense charge;
offense charged or of any other offense which is cannot invoke
necessarily included therein [Sec. 19, Rule included in the double
119] original jeopardy
c. The accused would not be placed in double charge; can
jeopardy [Sec. 14, Rule 110] invoke double
jeopardy
Amendment and Substitution
Distinguished Double Can be Cannot be
Amendment Substitution jeopardy invoked only if invoked.
as the new Substitution
Applicabi- The same Involves Defense information is presupposes
lity attempted, different a substantial that the new
frustrated, offense amendment information
necessarily and it was involves a
includes or done after the different
included plea offense which
offense does not
include or is
Scope Formal or Substantial not included in
substantial changes the original
changes charge.

Necessity Amendment Must be with

of leave of before plea leave of court [Teehankee Jr. v. Madayag, G.R. No. 103102,
court has been (1992)]
entered Can
be effected Variance between Allegation and Proof
without leave Variance Consequence
of court

Necessity When Another PI is When the offense The accused will

of new PI amendment is entailed and proved is LESS than be convicted of
and plea the offense charged the offense
Only as to accused has
form, no need to plead anew proved
for another PI [Sec. 4, Rule
and retaking 120]
of plea

Page 371 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

When the offense The accused will Those In the proper court of the
proved is GREATER be convicted of committed on first port of entry or of
than the offense the offense board a any municipality or
charged charged vessel in the territory through which
[Sec. 4, Rule course of its such vessel passed
120] voyage during its voyage, subject
to the generally accepted
When the offense The case should principles of international
proved is DIFFERENT be dismissed law [Sec. 15, Rule 110]
and NOT and a new
NECESSARILY Information Piracy, which May be instituted
INCLUDED/INCLUDES should be filed, has no anywhere [People v. Lol-
the offense charged charging the territorial lo and Saraw, G.R. No.
proper offense. limits 17958 (1922)]
[Sec. 14, Rule
110] Libel If one of the offended
parties is a private
individual:
10. Venue of Criminal Actions a. Where the libelous
article is printed and first
General rule: Venue is criminal cases is published, or
jurisdictional. In all criminal prosecutions, the b. Where said
action must be instituted and tried in the courts individual actually
of the municipality or territory where:
resides
a. The offense was committed, or
b. Any of its essential ingredients occurred
If one of the offended
[Sec. 15(a), Rule 110].
parties is a public official:
a. Where the official
Exceptions:
holds office at the time of
Crime Venue the commission of the
offense
Felonies Proper court where 1. If the office is in
under Art. 2, criminal action was first Manila, then CFI Manila
RPC filed [Sec. 15, Rule 110] 2. If the office is any
other city or province,
Those In the court of any then file where he holds
committed on municipality or territory office
a railroad where such train, aircraft, b. Where the libelous
train, aircraft, or other vehicle passed article is printed and first
or any other during its trip, including published
public or place of departure and
private vehicle arrival [Sec. 15, Rule
in the court of 110]
its trip

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U.P. LAW BOC CRIMINAL PROCEDURE
Cases filed May be filed in the place
under B.P. 22 where the check was
dishonored or issued. In
the case of a cross-
check, in the place of the
depositary or collecting
bank [People v. Grospe,
G.R. No. L-74053-54,
(1988)]
Illegal The victim has the option
recruitment to file the case in his
cases (R.A. place of residence or in
8042 or the place where the
Migrant crime was committed
Workers Act) [Sto Tomas v. Salac G.R.
No. 152642 (2012)]
Violations of RTCs have jurisdiction
RA 10175 over any violation of the
(Cybercrime provisions of the Act,
Prevention including any violation
Act of 2012) committed by a Filipino
national regardless of the
place of commission
[Sec. 21]
In exceptional SC has the power to
circumstances order a change of venue
to ensure a or place of trial to avoid
fair trial and miscarriage of justice
impartial [Sec. 5(4), Art. VII,
inquiry Constitution]
Transitory or The courts of the
continuing territories where the
offenses essential ingredients of
the crime took place
have concurrent
jurisdiction. The first
court taking cognizance
of the case will exclude
the others [People v.
Grospe, G.R. No. L-
74053 (1988)]
Page 373 of 525
REMEDIAL LAW
11. Intervention of Offended
Party
General rule: An offended party has the right
to intervene in the prosecution of a crime,
where the civil action for recovery of civil
liability is instituted in the criminal action [Sec.
16, Rule 110]
Note: Regardless of the intervention, the
prosecution of the case is still subject to the
control of the prosecutor [Ricarze v. People,
G.R. No. 160451 (2007)]
Exceptions:
a. Where, from the nature of the crime and the
law defining and punishing it, no civil
liability arises in favor of a private
offended party (e.g. treason, rebellion,
espionage and contempt) [Rodriguez v.
Ponferrada, G.R. No. 155531-34 (2005)]
b. Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
1. Waived the same or
2. Expressly reserved his right to
institute a separate civil action or
3. Already instituted such action
[Rodriguez v. Ponferrada, G.R. No. 155531-34
(2005)]
C. PROSECUTION OF
CIVIL ACTION
1. Rule on Implied Institution of
Civil Action with Criminal
Action
General rule: The civil action for the recovery
of civil liability arising from the offense charged
is deemed instituted with the criminal action.
U.P. LAW BOC CRIMINAL PROCEDURE
Exception: When the offended party:
a. Waives the civil action
b. Reserves the right to institute it separately
c. Institutes the civil action prior to the
criminal action; [Sec. 1, Rule 111]
Civil liability of employer in a criminal
action
At most, the employer can only be held
subsidiarily liable for the delict committed by
his employee. [Art. 102, 103, RPC] The
employer cannot be held vicariously liable,
under Art. 2180, in the criminal action.
[Maniago v. CA, G.R. No. 101809 (1996)]
2. When Civil Action May
Proceed Independently
a. Independent civil actions
Independent civil actions those that are
separate and distinct from and shall proceed
independently of the criminal action. Only a
preponderance of evidence shall be required in
such cases: [Sec. 3, Rule 111]
a. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for
damages for the same act or omission may
be instituted [Art 29, NCC]
b. Cases involving violation of constitutional
rights, defamation, fraud, physical injuries,
refusal or failure to render aid or protection
by the members of the police or the
prosecuting attorney, quasi-delict) [Sec. 3,
Rule 111] [Art. 32, 33, 34, 35 and 2176,
NCC]
Prohibition on double recovery
In no case may the offended party recover
damages TWICE for the same act or omission
charged in the criminal action. [Sec. 3, Rule
111]
Note: The judgment of the court must state the
civil liability or damages to be recovered by the
Page 374 of 525
REMEDIAL LAW
offended party from the accused, if any,
EXCEPT, when enforcement of civil liability by
a separate civil action has been reserved or
waived. [Sec. 2, Rule 120, ROC]
b. Reservation of right to file civil
action
When reservation shall be made
1. Before the prosecution starts to present its
evidence, and
2. Under circumstances affording the
offended party a reasonable opportunity to
make such reservation. [Sec. 1(2), Rule
111]
Note: Failure of the court to adjudge as to civil
liability amounts to the reservation of the right
to a separate civil action.
Effect of reservation of right
The prescriptive period of the civil action that
was reserved shall be tolled. [Sec. 2, Rule 111]
When reservation to file separately not
allowed
1. B.P. 22 cases [Sec. 1(b), Rule 111]
2. Cases cognizable by the Sandiganbayan
[Sec. 4, P.D. 1606, as amended by R.A.
10660]
3. Tax cases [Sec. 7(b)(1), RA 9282]
Note: In such cases, only the civil liability
arising from the crime charged (cause of action
arising from the delict) is deemed instituted.
[Sarmiento v. CA, G.R. No. 122502 (2002)]]
c. Separate action filed by the
accused
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action [Sec. 1, Rule
111]
U.P. LAW BOC CRIMINAL PROCEDURE
3. When Separate Civil Action Is
Suspended
When the civil action is filed before the
criminal action
General Rule: If the civil action is instituted
before the institution of the criminal action,
such pending civil action, in whatever stage it
may be found, shall be suspended until final
judgment of the criminal action has been
rendered. [Sec. 1, Rule 111]
Exceptions:
a. In cases of independent civil actions
b. In cases where the civil action presents a
prejudicial question
c. Where the civil action is not one intended
to enforce the civil liability arising from the
offense
Note: Rules preclude a motu proprio
suspension by the judge of the civil action; it
must be by petition of the defendant [Yap v.
Paras, G.R. No. 101236 (1992)]]
Consolidation of civil with criminal action
Before judgment on the merits is rendered in
the civil action, such may be consolidated with
the criminal action in the court trying the
criminal action, upon motion of the offended
party. The evidence already adduced in the
civil action will be automatically reproduced in
the criminal action. [Sec. 2, Rule 111]
Note: There can also be no motu proprio
consolidation. It must be upon motion of the
offended party.
When criminal action filed before
After the criminal action has been commenced,
the separate civil action arising therefrom
cannot be instituted until final judgment has
been entered in the criminal action. [Sec. 1,
Rule 111]
Page 375 of 525
REMEDIAL LAW
4. Effect of Death of the
Accused or Convicted On
Civil Action
Before Arraignment
The criminal case shall be dismissed
without prejudice to any civil action that
the offended party may file against the
estate of the deceased [Sec. 4, Rule 111]
After arraignment and during pendency
of the criminal action
The civil liability is extinguished. But,
a. An independent civil action enforcing
liabilities under Art. 32, 33, 34, 35 and
2176 may be continued against the
estate or legal representative of the
accused, after proper substitution.
b. b. If the civil action has been reserved
and subsequently filed, the civil action
shall proceed after substitution of
parties. [Sec. 4, Rule 111]
During appeal
Civil and criminal liabilities are extinguished
[People v. Alison, G.R. No. L-30612 (1983)]
Note: Only civil liability ex delicto is
extinguished. A separate civil action may
be instituted based on other sources of civil
liability [People v. Culas, G.R. No. 211166
(2017)]
After judgment
The civil liability is not extinguished. Claims
shall be filed against the estate of the
accused under Rule 86 of the ROC. [Sec. 5,
Rule 86]
U.P. LAW BOC CRIMINAL PROCEDURE
5. Prejudicial Question
Definition
One which arises in a case, where the
resolution of which is a logical
antecedent of the issue involved therein
and the cognizance of which pertains to
another tribunal [People v. Consing, G.R.
No. 148193 (2003)]
There is a prejudicial question only when
the matter that has to be priorly decided
by another authority is one where the
cognizance of which pertains to that
authority and should not, under the
circumstances, be passed upon by the
court trying the criminal case [Rojas v.
People, G.R. No. L-22237 (1974)]
It is a question based on a fact distinct
and separate from the crime but so
intimately connected with it that it
determines the guilt or innocence of the
accused [Ras v. Rasul, G.R. No. L-50411
(1980)]
Elements
a. The previously instituted civil action
involves an issue similar or
intimately related to the issue raised
in the subsequent criminal action.
b. The resolution of such issue
determines whether or not the
criminal action may proceed. [Sec. 7,
Rule 111]
Effect
Page 376 of 525
REMEDIAL LAW
Suspension of the criminal action [Sec.
6, Rule 111]
It does not prescribe the dismissal of the
criminal action [Yap v. Paras, G.R. No.
101236, (1992)]
Where filed
A petition for suspension of criminal
action based upon the pendency of a
prejudicial question in a civil action is
filed in either:
a. Office of the prosecutor (in the PI
stage);
b. Court conducting the PI; or
c. Court where criminal action has been
filed for trial, at any time before the
prosecution rests. [Sec. 6, Rule 111]
Rationale
To avoid two conflicting decisions in the
civil case and in the criminal case [Sy
Thiong Shiou v. Sy Chim, G.R. No.
174168 (2009)]
Example
The nullity and forgery of the prior deed
of sale is based on the very same facts
which would be necessarily determinative
of the accused’s guilt or innocence in the
case for estafa. If the first alleged sale is
void or fictitious, then there would have
been no double sale and the accused
would be declared innocent [Ras v.
Rasul, G.R. No. 50411 (1980)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Prejudicial question where administrative 3. If the amounts are not so alleged but
and criminal cases, but no civil case, any of these damages are
involved subsequently awarded by the court, the
In San Miguel Properties, Inc. v. Perez [G.R. filing fees based on the amount
No. 166836 (2013)] the SC held that the awarded shall constitute a first lien on
administrative case before the HLURB case the judgment. [Sec. 1, Rule 111]
raises a prejudicial question that sufficed to b. Estafa – offended party shall pay in full the
suspend the criminal proceedings since the filing fees based on the amount involved
action before the HLURB was “civil in nature” [See Sec. 20, Rule 141]
and could not be instituted elsewhere except in
the HLURB whose jurisdiction over the action
was exclusive and original. D. PRELIMINARY
INVESTIGATION
6. Rule on Filing Fees in Civil
Action Deemed Instituted 1. Nature of Right
With the Criminal Action
Definition
General rule: An inquiry or proceeding to determine
a. Actual Damages - no filing fees required whether there is sufficient ground to
b. Moral, exemplary, nominal, temperate engender a well-founded belief that a crime
damages: has been committed and the respondent is
1. If amount is specified in the probably guilty thereof, and should be held
complaint/information - the for trial [Sec. 1, Rule 112, as amended by
corresponding filing fees shall be paid A.M. No. 05-8-26-SC].
by the offended party upon the filing Nature
thereof in court. What it is What it is not
2. If amount is not specified in the 1. Merely Not a trial of the case
complaint/information, the filing fees inquisitorial, and on the merits” and
shall constitute a first lien on the it is often the only does not place the
judgment awarding such damages means of persons against
[Sec. 1, Rule 111] discovering the whom it is taken in
persons who jeopardy [Paderanga
Exceptions: may reasonably v. Drilon, G.R. No.
a. Violations for B.P.22 be charged with 96080 (1991)]
1. The offended party shall pay in full the a crime, to
filing fees based on the amount of the enable the
check involved, which shall be prosecutor to
considered as the actual damages prepare his
claimed. complaint or
2. Where the complaint or information information
also seeks to recover liquidated, moral, 2. This is a
nominal, temperate or exemplary substantive right.
damages, the offended party shall pay To deny the
additional filing fees based on the accused’s claim
amounts alleged therein. to a PI would be
to deprive him of

Page 377 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
the full measure
of his right to due
process [Duterte
v.
Sandiganbayan,
G.R. No. 130191
(1998)]
Who determines probable cause
This is an executive function that the courts
cannot interfere with in the absence of grave
abuse of discretion. [Salapuddin v. Court of
Appeals, G.R. No. 184681 (2013)]. A
prosecutor cannot then be compelled by
mandamus to file a case against an alleged
criminal, except when such prosecutor acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction [Hegerty v. CA,
409 SCRA 285 (2003)]
Statutory basis of the right to
preliminary investigation
This is NOT a constitutional right; rather, the
right thereto is of statutory character and
may be invoked only when specifically
created by statute. It is not a fundamental
right and may be waived expressly or by
silence [Marinas v. Siochi, G.R. Nos. L-
25707 (1981)]
Waiver of right
The right to PI is a personal right which the
accused may waive either expressly or by
implication but at all times must be
unequivocal. The waiver, whether express or
implied, must be in a clear and unequivocal
manner [Larranaga v. CA. G.R. No. 130644
(1998)]
Mere failure of a defendant and/or his counsel
to appear during PI cannot be construed as a
waiver [Larranaga v. CA, G.R. No. 130644
(1998)]
When the accused waives his right to PI, the
fiscal may forthwith file the corresponding
information with the proper court [People v.
Perez, G.R. No. L-15231 (1960)]
Page 378 of 525
REMEDIAL LAW
An application for or admission to bail shall not
bar the accused from assailing the regularity or
questioning the absence of a PI of the charge
against him provided that he raises the
challenge before entering his plea [Sec. 26,
Rule 114]
When right deemed waived [W-FI-ANG]
a. Express Waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)]
b. Failure to Invoke it during arraignment
[People v. De Asis, G.R. No. 105581
(1993)]; and
c. Consenting to be Arraigned and entering a
plea of Not Guilty without invoking the right
to PI [People v. Bulosan, G.R. No. L-58404
(1988)]
The right cannot be raised for the first time on
appeal [Pilapil v. Sandiganbayan, G.R. No.
101978 (1993)]
When right not deemed waived
a. Failure to appear before the prosecutor
during the clarificatory hearing or when
summoned, when the right was invoked at
the start of the proceeding [Larranaga v.
CA, G.R. No. 130644 (1998)]; or
b. When the accused filed an application for
bail and was arraigned over his objection
and the accused demanded that PI be
conducted [Go v. CA, G.R. No. 101837
(1992)]
2. Purposes of Preliminary
Investigation
The following are the specific purposes of
preliminary investigation [IPA]:
a. To Inquire concerning the commission of a
crime and the connection of the accused
with it. This is so that:
i. the accused may be informed of the
nature and character of the crime
charged against him, and,
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

ii. if there is probable cause for believing c. Other officers as Election Code.
him guilty, that the State may take the may be [Sec. 2(6), Art.
necessary steps to bring him to trial; authorized by IX-C,
b. To Preserve the evidence and keep the law Constitution;
witnesses within the control of the State; [Sec. 2, Rule 112, Section 265,
and as amended by A.M. BP881
c. To determine the Amount of bail, if the No. 05-8-26-SC] (Omnibus
offense is bailable. [Callo-Claridad v. Election Code),
Esteban, G.R. No. 191567 (2013)] as amended by
Section 43,
3. Who May Conduct RA9369] [
Determination of Existence of b. Ombudsman:
over cases
Probable Cause public officers
and employees
Probable cause
[Section 15[1],
Probable cause pertains to facts and
RA6770
circumstances sufficient to support a well-
(Ombudsman
founded belief that a crime has been
Act of 1989)]
committed and the accused is probably guilty
c. Presidential
thereof. [Shu v. Dee, G.R. No. 182573 (2014)]
Commission on
Good
Quantum of Evidence
Governance with
The quantum of evidence now required in PI is
assistance of the
such evidence sufficient to “engender a well-
OSG: over
founded belief” as to the fact of the commission cases
of a crime and the respondent's probable guilt
investigated by
thereof. A PI is not the occasion for the full and
it) [EO14,
exhaustive display of the parties’ evidence. (1986)]
[Estrada v. Ombudsman, G.R. No. 212140
(2015)]
JUDICIAL DETERMINATION v. EXECUTIVE
Hearsay evidence is admissible during PI [De
DETERMINATION OF PROBABLE CAUSE
Lima v. Guerrero, G.R. No. 229781 (2017),
Executive Judicial
citing Estrada v. Ombudsman, G.R. No. Determination Determination
212140 (2015)] Ascertains To ascertain
whether a whether a
Who May Conduct Preliminary criminal case warrant of
Investigation must be filed in arrest should
As Provided by the As Provided by court. The be issued
Rules of Court Law public against the
a. Provincial/city a. COMELEC: over Nature prosecutor is accused [Sec.
prosecutors and all election given a broad 2, Art. III,
their assistants offenses discretion to Constitution]
b. National and punishable determine
regional state under the whether
prosecutors Omnibus probable cause
exists and to

Page 379 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

charge those within the jurisdiction of the Sandiganbayan,

whom he but also those within the jurisdiction of regular
believes to courts as well [Uy v. Sandiganbayan, G.R. No.
have 105965-70 (2001)]
committed the
crime. [People A person under PI by the Ombudsman is
v. Borje, Jr.,
entitled to file a motion for reconsideration of
G.R. No.
the adverse resolution, under Sec. 7 of the
170046 (2014)]
Rules of Procedure of the Ombudsman. To
deny the accused of his right to file a motion for
Made by Prosecutor Judge
whom
reconsideration would also deprive him of his
Determination Determination
right to a full preliminary investigation [Sales v.
of PC to hold a of PC for the Sandiganbayan, G.R. No. 143802 (2001)]
person for trial arrest of the
[Sec. 1, Rule accused Procedure for Preliminary Investigation
Purpose
112, as [Baltazar v. Filing of the complaint, which
amended by People, G.R. a. Shall state the address of the
A.M. No. 05-8- No. 174016 respondent
26-SC] (2008)] b. Shall be accompanied by the affidavits
Sufficient Set of facts and of the complainant and his witnesses,
ground to circumstances and other supporting documents to
engender a which would establish probable cause. The affidavits
well-founded lead a shall be subscribed and sworn to before
belief that a reasonably any prosecutor or government official
crime has been discreet and authorized to administer oath or if absent
committed, and prudent man to
or unavailable, before a notary public,
that the believe that the
each of whom must certify that he
respondent is offense
personally examined the affiants and
probably charged in the
that he is satisfied that they voluntarily
guilty thereof Information or
Standard and should be any offense executed and understood their
held for trial included affidavits.
[Sec. 1, Rule therein has c. Shall be in such number of copies as
112, as been there are respondents, plus 2 copies for
amended by committed by the official file
A.M. No. 05-8- the person [Sec. 3(a), Rule 112, as amended by A.M.
26-SC] sought to be No. 05-8-26-SC]
arrested ↓
[Baltazar v. Action of the investigating officer
People, G.R. a. Within 10 days after the filing of the
No. 174016 complaint, the investigating officer shall
(2008)] either:
1. Dismiss the complaint, if he finds no
Determination of Probable Cause made by ground to continue the investigation;
the Ombudsman or
The Ombudsman is authorized to conduct PI 2. Issue a subpoena to the respondent,
and to prosecute all criminal cases involving attaching the complaint and
public officers and employees, not only those supporting affidavits and documents

Page 380 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec. 3(b), Rule 112, as amended by Determination

A.M. No. 05-8-26-SC]. Within ten (10) days after the investigation,
the investigating officer shall determine
Respondent has the right to examine the whether or not there is sufficient ground to
evidence submitted by complainant which hold the respondent for trial [Sec. 3(f), Rule
he may not have furnished and to copy 112, as amended by A.M. No. 05-8-26-SC].
evidence at his expense [Sec. 3(b), Rule
112, as amended by A.M. No. 05-8-26-SC]. Note: Not receiving a copy of affidavits of a co-
↓ respondent does not deny a respondent his
Respondent’s counter-affidavit right to due process, since the Rules of
It must be made within ten (10) days from Procedure of the Office of the Ombudsman
receipt of subpoena with the complaint and only require that a respondent be furnished a
must comply with the same requirements as copy of the complainant’s affidavit and other
a complaint. Respondent is not allowed to supporting documents. [Estrada v.
file a motion to dismiss in lieu of counter- Ombudsman, G.R. No. 212140-41 (2015)]
affidavit [Sec. 3(c), Rule 112, as amended
by A.M. No. 05-8-26-SC]. 4. Resolution of the
Investigating Prosecutor
If the respondent cannot be subpoenaed, or
if subpoenaed, does not submit counter-
If he finds probable cause to hold respondent
affidavits within the ten (10) day period, the
for trial, he shall prepare the resolution and
investigating officer shall resolve the
information and shall certify under oath in the
complaint based on the evidence presented
information that [E-RG-I-CE]:
by the complainant [Sec. 3(d), Rule 112, as
a. He, or as shown by the record, an
amended by A.M. No. 05-8-26-SC] This
authorized officer has personally Examined
situation would have the effect of an ex-parte
the complainant and his witnesses;
investigation [Riano 210, 2016 Ed.].
b. There is Reasonable Ground to believe
↓
that a crime has been committed and the
Clarificatory hearing
accused is probably guilty thereof;
The investigating officer may set a hearing if
c. The accused was Informed of the
there are facts and issues to be clarified from
complaint and of the evidence against him;
a party or a witness. The parties can be
and
present at the hearing but without the right
d. He was given opportunity to submit
to examine or cross-examine. They may,
Controverting Evidence
however, submit to the investigating officer
questions which may be asked to the party
If he finds no probable cause, he shall
or witness concerned [Sec. 3(e), Rule 112,
recommend the dismissal of the complaint
as amended by A.M. No. 05-8-26-SC].
[Sec. 4, Rule 112, as amended by A.M. No. 05-
8-26-SC]
The hearing shall be held within 10 days
from submission of the counter-affidavits
Note: Notwithstanding the absence of a
and other documents or from the expiration
certification as to the holding of a PI (not the
of the period for their submission. It shall be
actual PI), the information is, nonetheless,
terminated within five (5) days [Sec. 3(e),
considered valid for the reason that such
Rule 112, as amended by A.M. No. 05-8-26-
certification is not an essential part of the
SC].
information itself and its absence cannot vitiate
↓

Page 381 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
it as such [Alvizo v. Sandiganbayan, GR. No.
101689 (1983)]
5. Review
Within five (5) days from the resolution, the
investigating officer shall forward the case to
the provincial/city/chief state prosecutor, or
to the Ombudsman or his deputy in cases
cognizable by the Sandiganbayan in the
exercise of its original jurisdiction.
↓ appealed resolution, unless the Secretary of
Within ten (10) days from receipt of the
resolution, the Prosecutor/Ombudsman
shall act on the resolution and shall
immediately inform the parties of such
action.
↓
No complaint/information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or approval
of the provincial/city/chief state prosecutor,
or Ombudsman or his deputy.
Where the investigating prosecutor
recommends the dismissal of the complaint
but the prosecutor/Ombudsman or his
deputy disapproves his recommendation,
the latter, may by himself, file the information
or direct another assistant/state prosecutor
to do so without conducting a new PI.
↓ appealable administratively before the
If upon petition by a proper party under such
rules as the Department of Justice may
prescribe or motu proprio, the Secretary of
Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor
concerned either to file the corresponding
information without conducting another
preliminary investigation, or to dismiss or
move for dismissal of the complaint or
information with notice to the parties. The
same rule shall apply in preliminary
investigations conducted by the officers of
the Office of the Ombudsman.
Page 382 of 525
REMEDIAL LAW
[Sec. 4, Rule 112, as amended by A.M. No. 05-
8-26-SC]
Remedies to review the resolution of the
investigation officer
1. Filing an appeal with the investigating
officer.
Note: The appeal does not prevent the filing of
the corresponding information in court based
on the finding of probable cause in the
Justice directs otherwise, but the appellant and
the prosecutor shall see to it that, pending
resolution of the appeal, the proceedings in
court are held in abeyance [Section 9, DOJ
Circular No. 70 (2000)].
2. Petition for review to the SOJ, who may
review the resolutions of his subordinates
in criminal cases despite the information
being filed in court [Community Rural Bank
of Guimba v. Talavera, A.M. No. RTJ-05-
1909 (2005); see also DOJ Circ. No. 70].
Note: The party filing a petition for review is
allowed to file a motion for the suspension of
the arraignment [Sec. 11(c), Rule 116].
3. If the SOJ decision is adverse to the
appealing party, such decision is
Office of the President and the decision of
the latter may be appealed before the CA
pursuant to Rule 43 [De Ocampo v. Sec. of
Justice, G.R. No. 147932 (2006)]
Note: Under Memorandum Circular No. 58
(2003), no appeals from or petitions for review
of decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations shall be
entertained by the Office of the President,
except those involving offenses punishable by
reclusion perpetua to death [Angeles v. Gaite,
G.R. No. 176596 (2011)].
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. The resolution of the Secretary of Justice When warrant of arrest shall not issue
may also be reviewed by the Court of A warrant of arrest shall not issue if the
Appeals through a petition for certiorari accused is already under detention pursuant to
under Rule 65 of the Rules of Court, solely a warrant issued by the municipal trial court or
on the ground that the SOJ committed if the complaint or information was filed
grave abuse of discretion amounting to pursuant to Sec. 6, Rule 112 (When accused
lack of jurisdiction [Argovan v. San Miguel lawfully arrested without warrant) or is for an
Corporation, G.R. No. 188767, (2013)]. offense penalized by fine only. The court shall
then proceed in the exercise of its original
5. In criminal cases, the ruling of the jurisdiction [Sec. 5(c), Rule 112, as amended
Ombudsman shall be elevated to the by A.M. No. 05-8-26-SC]
Supreme Court by way of Rule 65, solely
under the ground of grave abuse of 7. Cases Not Requiring
discretion [Villanueva v. Ople, G.R. No.
Preliminary Investigation nor
165125 (2005)].
Covered By the Rule on
6. When Warrant of Arrest May Summary Procedure
Issue If the complaint is filed directly with the
prosecutor involving an offense punishable by
The PI conducted by the judge which is
an imprisonment of less than 4 years, 2
properly called preliminary examination is for
months and 1 day, the procedure outlined in
the determination of probable cause for the
Sec. 3(a), Rule 112, as amended by A.M. No.
issuance of warrant of arrest [P/Supt. Cruz v.
05-8-26-SC shall be observed. The prosecutor
Judge Areola, A.M. No. RTJ-01-1642 (2002)]
shall act on the complaint based on the
affidavits and other supporting documents
When the RTC/MTC may issue a Warrant of
submitted by the complainant within ten (10)
Arrest
days from its filing [Sec. 8(a), Rule 112, as
a. Within 10 days from the filing of the
amended by A.M. No. 05-8-26-SC]
complaint or information, the judge shall
personally evaluate the resolution of the
Sec. 3(a), Rule 112, as amended by A.M. No.
prosecutor and its supporting evidence.
05-8-26-SC states that:
b. He may immediately dismiss the case if the
a. The complaint shall state the address of
evidence on record clearly fails to establish
the respondent and shall be accompanied
probable cause.
by affidavits of the complainant and his
c. If he finds probable cause, he shall issue
witnesses, as well as other supporting
a warrant of arrest or a commitment order
documents to establish probable cause.
when the complaint or information was filed
b. They shall be in such number of copies as
pursuant to Sec. 7 of Rule 112, as
there are respondents, plus 2 copies for the
amended by A.M. No. 05-8-26-SC.
official file. The affidavits shall be
d. In case of doubt on the existence of
subscribed and sworn to before any
probable cause, the judge may order the
prosecutor or government official
prosecutor to present additional evidence
authorized to administer oath, or, in their
within 5 days from notice and the issue
absence or unavailability, before a notary
must be resolved by the court within 30
public, each of whom must certify that he
days from the filing of the complaint or
personally examined the affiants and that
information. [Sec. 5(a), Rule 112, as
amended by A.M. No. 05-8-26-SC]

Page 383 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
he is satisfied that they voluntarily
executed and understood their affidavits.
If the complaint or information is filed with
the MTC/MCTC for an offense covered by
this section
a. The procedure in Sec. 3(a) quoted above
shall be observed.
b. If within 10 days after the filing of the
complaint of information, the judge finds no
probable cause after personally evaluating
the evidence, or after personally examining
in writing and under oath the complainant
and his witnesses in the form of searching
questions and answers, he shall dismiss
the same.
c. He may, however, require the submission
of additional evidence, within 10 days from
notice, to determine further the existence of
probable cause.
d. If the judge still finds no probable cause
despite the additional evidence, he shall,
within 10 days from its submission or
expiration of said period, dismiss the case.
e. When he finds probable cause, he shall
issue a warrant of arrest, or a commitment
order if the accused had already been
arrested, and hold him for trial.
f. However, if the judge is satisfied that there
is no necessity for placing the accused
under custody, he may issue summons
instead of a warrant of arrest.
[Sec. 8(b), Rule 112, as amended by A.M. No.
05-8-26-SC]
8. Remedies of Accused If There
Was No Preliminary
Investigation
Effect of denial of right
The absence of a PI does not impair the validity
of an information or render it defective. Neither
does it affect the jurisdiction of the court or
constitute a ground for quashing the
information [Villaflor v. Vivar, G.R. No. 134744
(2001)]
Page 384 of 525
REMEDIAL LAW
Remedies of the accused if there was no PI
a. Call the attention of the court to the
deprivation of the required PI before
entering his plea [Larranaga v. CA. G.R.
No. 130644 (1998)]
b. After the filing of the complaint/information
in court without a PI, the accused may
within 5 days from the time he learns of its
filing, ask for a PI with the same right to
adduce evidence in his defense as
provided in Rule 112 [Sec. 6, Rule 112, as
amended by A.M. No. 05-8-26-SC]
c. File a certiorari, if refused and such refusal
is tainted with grave abuse of discretion
[Riano 186, 2016 Ed.]
The trial court, instead of dismissing the
information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI [Villaflor v. Vivar, G.R. No. 134744
(2001)]
The right cannot be raised for the first time on
appeal [Pilapil v. Sandiganbayan, G.R. No.
101978 (1993)]
Restraining preliminary investigation
General rule: The power of the Fiscal to
investigate crimes committed within his
jurisdiction will, ordinarily, not be restrained.
Exceptions: Extreme cases may exist where
relief in equity may be availed of to stop a
purported enforcement of a criminal law where
it is necessary:
a. For the orderly administration of justice;
b. To prevent the use of the strong arm of the
law in an oppressive and vindictive
manner;
c. To avoid multiplicity of actions;
d. Since there is a prejudicial question which
is sub judice
e. When the acts of the officer are without or
in excess of authority
f. Since double jeopardy is clearly apparent
g. When the court has no jurisdiction over the
offense
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

h. When the case of one of persecution rather presence of his

than prosecution counsel;
i. When the charges are manifestly false and 2. he may apply for
motivated by the lust for vengeance bail;
j. When there is clearly no prima facie case 3. the investigation
against the accused and a motion to quash must be
on that ground has been denied terminated within
k. To afford adequate protection to 15 days from its
constitutional rights [Hernandez v. Albano, inception
G.R. No. L-19272 (1967)] [Sec. 6, Rule 112, as amended by A.M. No. 05-
l. In proper cases, because the statute relied 8-26-SC]
upon is unconstitutional, or was “held
invalid” [Ladlad v. Velasco, G.R. No. Procedure
172070-72 (2007)] An inquest is considered commenced upon
receipt by the Inquest officer from the law
9. Inquest enforcement authorities of the
complaint/referral documents which should
Inquest include:
Is an informal and summary investigation 1. Affidavit of arrest, investigation report,
conducted by a public prosecutor in criminal statement of the complainant and
cases involving persons arrested and detained witnesses, all of which must be subscribed
without the benefit of a warrant of arrest issued and sworn to before him;
by the court for the purpose of determining 2. Other supporting evidence gathered by the
whether said persons should remain under police in the course of the latter's
custody and correspondingly be charged in investigation of the criminal incident
court [Leviste v. Alameda, G.R. No. 182677 involving the arrested or detained person.
(2010), citing Sec. 1, DOJ Circ. No. 61 (1993)] [Sec. 3, DOJ Circ. No. 61 (1993)]

In the absence of an inquest prosecutor, the The inquest proceedings must be terminated
offended party or peace officer may directly file within the period prescribed under the
the complaint in court [Sec. 6, Rule 112, as provisions of Art. 125, RPC. [Sec. 3, DOJ Circ.
amended by A.M. No. 05-8-26-SC] No. 61 (1993)]

Remedy of a person arrested without a Crime or offense Period to deliver

warrant punishable by: person arrested to
After the filing of proper judicial
Before the authorities:
the complaint but
complaint or Light penalties or 12 hours
before
information is filed
arraignment their equivalent
The accused may ask The accused may Correctional 18 hours
for PI. ask for PI within 5 penalties or their
Requisites: days after he learns equivalent
1. he must sign a of the filing of the Afflictive or capital 36 hours
waiver of the complaint or penalties or their
provisions of information equivalent
Article 125 of
RPC, in the

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

General rule: No peace officer or person has

E. ARREST the power or authority to arrest anyone without
a warrant except in those cases expressly
authorized by law [Umil v. Ramos, G.R. No.
81567 (1991)]
1. Arrest, How Made
Exceptions:
Definition
a. In flagrante delicto [Sec. 5(a), Rule 113]
Arrest is the taking of a person into custody in
b. Hot pursuit arrest [Sec. 5(b), Rule 113]
order that he may be bound to answer for the
c. Arrest of escaped prisoner [Sec. 5(c), Rule
commission of an offense [Sec. 1, Rule 113]
113]
d. Other lawful warrantless arrests
How made
1. If a person lawfully arrested escapes or
a. by actual restraint of a person to be
is rescued, any person may
arrested;
immediately pursue or retake him
b. by his submission to the custody of the
without a warrant at any time and in any
person making the arrest [Sec. 2, 1st par.,
place within the Philippines [Sec. 13,
Rule 113]
Rule 113]
2. For the purpose of surrendering the
Application of actual force, manual touching of
accused, the bondsmen may arrest
the body, physical restraint or a formal
him or, upon written authority endorsed
declaration of arrest is not required. It is
on a certified copy of the undertaking,
enough that there be an intent on the part of
cause him to be arrested by a police
one of the parties to arrest the other and an
officer or any other person of suitable
intent on the part of the other to submit, under
age and discretion [Sec. 23, Rule 114]
the belief and impression that submission is
3. An accused released on bail may be re-
necessary [Sanchez v. Demetriou, G.R. No.
arrested without the necessity of a
111771 (1993)]
warrant if he attempts to depart from
the Philippines without permission of
No violence or unnecessary force shall be used
the court where the case is pending
in making an arrest [Sec. 2, 2nd par., Rule 113]
[Sec. 23, Rule 114]
An arrest may be made on any day and at any
Note: A legitimate warrantless arrest
time of the day or night [Sec. 6, Rule 113]
necessarily includes the authority to validly
search and seize from the offender (1)
2. Arrest without Warrant, When dangerous weapons, and (2) those that may be
Lawful used as proof of the commission of an offense
[People v. Montilla, G.R. No. 123872, (1998)]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

In flagrante delicto Hot pursuit arrest Arrest of escaped prisoner

arrest
A peace officer or a A peace officer or a private
private person may, person may, without
without warrant, arrest warrant, arrest a person
a person when, in his when an offense has just
presence, the person been committed and the
to be arrested: officer or private person has
1. Has committed probable cause to believe,
2. Is actually based on personal
committing, or knowledge of facts or
3. Is attempting to circumstances that the
commit an offense person to be arrested has
Definition
[Sec. 5(a), Rule committed it [Sec. 5(b),
113] Rule 113]
A peace officer or a private
person may, without warrant,
arrest a person when the
person to be arrested is a
prisoner who has escaped
1. from a penal
establishment or place
where he is serving final
judgment or temporarily
confined while his case is
pending; or
2. While being transferred
from one confinement to
another [Sec. 5(c), Rule
113]

Escapee may be immediately

pursued or re-arrested
without a warrant at any time
and in any place within the
Philippines [Sec. 13, Rule
113]
[OA-PVAO] [C-PK] N/A
1. The person to be 1. An offense has just
arrested must been Committed.
execute an Overt - There must be a
Act indicating that large measure of
he has just immediacy
committed, is between the time the
actually offense was
committing, or is committed and the
attempting to time of the arrest. If
Requisites
commit a crime, there was an
and appreciable lapse of
2. Such overt act is time between the
done in the arrest and the
Presence or within commission of the
the View of the crime, a warrant of
Arresting Officer arrest must be
[Zalameda v. secured [People v.
People, G.R. No. del Rosario, G.R.
183656 (2009); No. 127755 (1999);

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

People v. Laguio, People v. Agojo ,

G.R. No. 128587 G.R. No. 181318
(2007)]. (2009)]; and
2. The person making the
“In his presence” arrest has probable
means: cause to believe, based
1. He sees the on Personal
offense, even Knowledge of facts and
though at a circumstances, that the
distance, or person to be arrested
2. He hears the has committed it.
disturbances
created by the
offense and
proceeds at once
to the scene
[People v.
Evaristo, G.R. No.
93828 (1992)]
“Reliable information” Personal knowledge does Rationale
alone, absent any not require actual At the time of arrest, the
overt act indicative of a presence at the scene escapee is in continuous
felonious enterprise in while a crime was being commission of a crime (i.e.,
the presence and committed; it is enough that evasion of service of
within the view of the evidence of the recent sentence). [Parulan v.
arresting officers, are commission of the crime is Director of Prisons, G.R. No.
not sufficient to patent and the police officer L-28519 (1968)]
constitute probable has probable cause to
Notes
cause that would justify believe based on personal
an in flagrante delicto knowledge of facts or
arrest [People v. circumstances, that the
Molina, G.R. No. person to be arrested has
133917 (2001)] recently committed the
crime [Pestilos v.
Generoso, G.R. No.
182601 (2014)]

Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall be
forthwith delivered to the nearest police station
or jail and shall be proceeded against in
accordance with Sec. 7 of Rule 112 [Sec. 5,
2nd par., Rule 113]
General rule: PI is required to be conducted
before a complaint/information is filed for an
offense where the penalty prescribed by law is

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

at least 4 years, 2 months and 1 day, without

regard to the fine [Sec. 1, Rule 112, , as
amended by A.M. No. 05-8-26-SC]

Exception: When a person is lawfully arrested

without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.

RULES ON ILLEGALITY OF ARREST

Effect
The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas, G.R. No. 170233
(2007)]

Waiver
Any objection involving the arrest or the
procedure in the court’s acquisition of
jurisdiction over the person of an accused must
be made before he enters his plea; otherwise
the objection is deemed waived. Accordingly,
an application for or admission to bail shall
not bar the accused from challenging the
validity of his arrest or the legality of the warrant
issued, provided that it was raised before he
enters his plea. [Sec. 26, Rule 114]

A waiver of the right to question an illegal

warrantless arrest does not also mean a waiver
of the inadmissibility of evidence seized during
an illegal warrantless arrest [People v. Nuevas,
G.R. No. 170233 (2007)]

When invalid arrest is cured

1. When the accused voluntarily submits to
the jurisdiction of the trial court [Dolera v.
People, G.R. No. 180693 (2009); People v.
Alunday, G.R. No. 181546 (2008)]
2. By the filing of an information in court and
the subsequent issuance by the judge of a
warrant of arrest [Sanchez v. Demetriou,
G.R. No. 111771 (1993)]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

3. Method of Arrest
By Officer without By Private Person
By officer with Warrant
Warrant (Citizen’s Arrest)
1. Execute the warrant General rule: The 1. The private person
within 10 days from its officer shall inform the shall inform the
receipt. In case of his person to be arrested person to be arrested
failure to execute the of: of the intention to
warrant, the head of the 1. His authority; and arrest him and the
office to whom the 2. The cause of the cause of the arrest
warrant was issued shall arrest except in the same
state the reasons cases as those for
therefor. [Sec. 4, Rule Exceptions: arrest by an officer
113] 1. When the person to without a warrant
2. General Rule: The be arrested is [Sec. 9, Rule 113]
officer shall inform the engaged in the 2. The private person
person to be arrested of commission of the must deliver the
the cause of the arrest offense; arrested person to
and the fact that a 2. When he is pursued the nearest police
warrant has been issued immediately after station or jail, and he
for his arrest. its commission; shall be proceeded
3. When he has against in
Exception: This does not escaped, flees or accordance with
Duties of the apply: forcibly resists Sec. 7, Rule 112
Arresting a. When the person to be before the officer [Sec. 5, Rule 113]
Person arrested flees; has the opportunity Otherwise, the
b. When he forcibly resists to so inform him; or private person may
before the officer has 4. When the giving of be held liable for
opportunity to so inform such information illegal detention [Art.
him; will imperil the 125, RPC]
c. When the giving of such arrest.
information will imperil [Sec. 8, Rule 113]
the arrest [Sec. 7, Rule
113]

3. The officer need not have

the warrant in his
possession at the time of
the arrest but after the
arrest, if the person
arrested so requires, the
warrant shall be shown to
him as soon as
practicable [Sec. 7, Rule
113]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. Arrest the accused and

deliver him to the nearest
police station or jail
without unnecessary
delay [Sec. 3, Rule 113];
5. No violence or
unnecessary force shall
be used in making an
arrest. The person
arrested shall not be
subject to a greater
restraint than is
necessary for his
detention [Sec. 2, 2nd
par., Rule 113].
1. To orally summon as many persons as he deems N/A
necessary to assist him in effecting the arrest [Sec.
10, Rule 113]
2. To break into building or enclosure when the
following concur:
a. The person to be arrested is or is reasonably
believed to be in said building;
Rights of the b. He has announced his authority and purpose of
arresting entering therein; and
Officer c. He has requested and been denied admittance.
[Sec. 11, Rule 113]
3. To break out from the building/enclosure when
necessary to liberate himself [Sec. 12, Rule 113];
4. To search the person arrested for dangerous
weapons or anything which may have been used or
constitute proof in the commission of an offense
without a warrant [Sec. 13, Rule 126]

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U.P. LAW BOC CRIMINAL PROCEDURE
4. Requisites of a Valid Warrant
of Arrest
Essential requisites
The warrant must:
a. Be issued upon probable cause
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce; and
b. Particularly describe the person to be
arrested
[Sec. 2, Art. III, Constitution]
When Issued
A judge issues a warrant of arrest upon the
filing of the information by the public prosecutor
and after personal evaluation by the judge of
the prosecutor’s resolution and supporting
evidence [Sec. 5(a), Rule 112, as amended by
A.M. No. 05-8-26-SC]
The judge does not have to personally examine
the complainant and his witnesses.
Established doctrine provides that it is
sufficient for the fiscal to provide supporting
documents regarding the existence of probable
cause:
a. If the judge finds probable cause, he shall
issue a warrant of arrest, or
b. If he finds no probable cause, he may
disregard the fiscal’s report and require the
submission of supporting affidavits of
witnesses
[People v. Gray, G.R. No. 180109 (2010); AAA
v. Carbonell, G.R. No. 171465 (2007)]
When warrant of arrest is not necessary
A warrant of arrest shall not issue
a. if the accused is already under detention
pursuant to a warrant issued by the
municipal trial court in accordance with
Sec. 5(b) of Rule 112; or
b. if the complaint or information
Page 392 of 525
REMEDIAL LAW
1. was filed pursuant to Sec. 6 of Rule 112
or
2. is for an offense penalized by fine only
[Sec. 5(c), Rule 112, as amended by
A.M. No. 05-8-26-SC]
Note: If complaint or information is filed with the
MTC judge, and the judge finds probable
cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already
been arrested. However, if the judge is
satisfied that there is no necessity for placing
the accused under custody, he may issue
summons instead of a warrant of arrest [Sec.
8(b), Rule 112, as amended by A.M. No. 05-8-
26-SC]
5. Determination of Probable
Cause For Issuance of
Warrant of Arrest
Probable cause, in connection with the
issuance of a warrant of arrest, assumes the
existence of facts and circumstances that
would lead a reasonably discreet and prudent
man to believe that a crime has been
committed and that it was likely committed by
the person sought to be arrested [People v.
Tan, G.R. No. 182310 (2009)] [See D.3, supra]
F. BAIL
1. Nature
Definition
Bail is the security given for the release of a
person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance
before any court as required under the
conditions hereinafter specified [Sec. 1, Rule
114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Purpose 2. When a Matter of Right;

a. To relieve an accused from imprisonment
Exceptions
until his conviction and yet secure his
appearance at the trial [People v. Hon.
Bail is a matter of right
Donato, G.R. No. 79269 (2011) & Enrile v.
a. Before or after conviction, but pending
Sandiganbayan, G.R. No. 213847 (2016)]
appeal, by the first-level courts;
b. To honor the presumption of innocence
b. Before conviction by RTC of an offense not
until his guilt is proven beyond reasonable
punishable by death, reclusion perpetua, or
doubt [Sec. 14, Art. III, Constitution]; and
life imprisonment
c. To enable him to prepare his defense
[Sec. 4, Rule 114]
without being subject to punishment prior
to conviction [Cortes v. Judge Catral, A.M.
Bail on offenses where minors are accused
No. RTJ-97-1387 (1997)]
For purposes of recommending the amount of
bail, the privileged mitigating circumstance of
A person is allowed to petition for bail as soon
minority shall be considered [Sec. 34, R.A
as he is deprived of his liberty by virtue of his
9344]
arrest or voluntary surrender. An accused need
not wait for his arraignment before filing a
Where a child is detained, the court shall order
petition for bail [Serapio v. Sandiganbayan,
a. the release of the minor on recognizance to
G.R. No. 148468 (2003)]
his/her parents and other suitable person;
b. the release of the child in conflict with the
Requirement of custody
law on bail; or
General rule: Custody of the law is required
c. the transfer of the minor to a youth
before the court can act on an application for
detention home/youth rehabilitation center
bail [Miranda v. Tuliao, G.R. No. 158763
(2006)]
Exception: When the offense involved is a
capital offense, admission to bail may only be
Exceptions: Custody is not required in cases
denied when evidence of guilt is strong [Sec. 5,
of witnesses posting bail:
Rule 114]
a. When bail is required to guarantee the
appearance of a material witness [Sec. 14,
Capital offense
Rule 119];
A capital offense is an offense which under the
b. When bail is required to guarantee the
law existing at the time of commission and of
appearance of a prosecution witness in
the application for admission to bail is
cases where there is substitution of the
punishable by death [Sec. 6, Rule 114]
information [Sec. 14, Rule 110]
The capital nature of the offense is determined
Forms of Bail
by the penalty prescribed by law and not the
1. Corporate surety
one actually imposed [Riano, 335, 2016 Ed.,
2. Property bond
citing Bravo v. De Borja, G.R. No. L-65228
3. Cash deposit
(1985)]
4. Recognizance
Note: R.A. 9346 (An Act Prohibiting the
Imposition of Death Penalty in the Philippines)
enacted on June 24, 2006 (which repealed

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U.P. LAW BOC CRIMINAL PROCEDURE
R.A. 8177 and R.A. 7659) prohibited the
imposition of the death penalty.
Generally not applicable to extradition
proceedings
General rule: Right to bail is available only in
criminal proceedings and does not apply to
extradition proceedings because extradition
courts do not render judgments of conviction or
acquittal [Gov. of USA v. Purganan and
Jimenez, G.R. No. 148571 (2002)]
Exception: Only upon clear and convincing
evidence:
a. That once granted, the applicant will not be
flight risk or will not pose danger to the
community; and
b. That there exists special humanitarian and
compelling circumstances [Gov. of USA v.
Purganan and Jimenez, G.R. No. 148571
(2002)]
Exception to the exception: When the
accused is a minor, he is entitled to bail
regardless of whether the evidence of guilt is
strong
Note: Bail is a matter of discretion in extradition
proceedings [Govt. of HK Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
When not available
Right to bail is not available:
a. After a judgment of conviction has become
final; if he applied for probation before
finality, he may be allowed temporary
liberty under his bail;
b. After the accused has commenced to serve
his sentence [Sec. 24, Rule 114]
c. To military personnel accused under
general courts martial [Comendador v. de
Villa, G.R. No. 93177 (1991)]
Page 394 of 525
REMEDIAL LAW
3. When a Matter of Discretion
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is
discretionary [Sec. 5, Rule 114]
The application for bail may be filed in and
acted upon by the RTC despite the filing of
notice of appeal, provided that it has not
transmitted the original record to the appellate
court [Sec. 5, Rule 114]
If the RTC decision changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved only by the appellate court [Sec. 5,
Rule 114]
If the conviction by the trial court is for a capital
offense, the accused convicted of a capital
offense is no longer entitled to bail, and can
only be released when the conviction is
reversed by the appellate court [Sec. 13, Article
III, Constitution]
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be
cancelled upon showing by the prosecution,
with notice to the accused, of any of the
following [Sec. 5, Rule 114]:
a. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused
b. The accused previously escaped from
legal confinement, evaded sentence or
violated bail conditions without valid
justification
c. Commission of offense while under
probation, parole or conditional pardon
d. Probability of flight;
e. Undue risk of the commission of another
crime during the pendency of the appeal
[Sec. 5, Rule 114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Upon conviction of the RTC, the bail posted
earlier as a matter of right loses its force and
the accused must file a new and separate
petition for bail.
In deportation proceedings, bail is
discretionary upon the Commissioner of
Immigration and Deportation [Harvey v.
Defensor-Santiago, G.R. No. 82544 (1990)]
Note: In Enrile v. People [G.R. No. 213847
(2015)], the Court ruled that an accused should
be granted bail if it is shown that: (1) the
detainee will not be a flight risk or a danger to
the community; and (2) there exist special,
humanitarian, and compelling circumstances.
The SC further explained that bail for the
provisional liberty of the accused, regardless of
the crime charged should be allowed
independently of the merits charged, provided
his continued incarceration is injurious to his
health and endanger his life.

COURT Before Conviction After Conviction Where to File

Pending Action

MTC (before the

MTC Right Right records are elevated;
else, RTC)
Discretionary if the penalty
imposed by the trial court
does not exceed 6 years.
However, if the penalty RTC (before the
Non- imposed exceeds 6 years or records are elevated;
Right
capital if the prosecution proves that except if offense is
RTC the circumstances downgraded, then CA
enumerated in Sec. 5, Rule
114 exist, bail will be denied
or cancelled.
Discretionary, when
Capital evidence of guilt is Cannot be granted bail N/A
not strong

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. Hearing of Application for Bail the Philippines, or otherwise unable to testify

[Sec. 8, Rule 114]
in Capital Offenses
Where application for bail is filed
In general
General rule: The application may be filed with
At the hearing of an application for bail filed by
the court where the case is pending.
a person in custody for the commission of an
offense punishable by reclusion perpetua or life
Exceptions:
imprisonment, the prosecution has the
a. If the judge of the court where the case is
burden of showing that evidence of guilt is
pending is absent or unavailable, the
strong [Sec. 8, Rule 114]
application may be filed with any
RTC/MTC/MeTC/MCTC judge in the
Evidence of guilt in the Constitution and the
province, city or municipality;
Rules refers to a finding of innocence or
b. Where the accused is arrested in a \the
culpability, regardless of the modifying
case is pending, the application may be
circumstances [Bravo v. De Borja, G.R. No. L-
filed with any RTC of the said place, or, if
65228 (1985)]
no judge is available, then with any
MeTC/MTC/MCTC judge in the said place.
Duties of judge hearing the petition for bail
c. When a person is in custody but not yet
when capital offenses are involved
charged, he may apply with any court in the
a. In all cases whether bail is a matter of right
province or city/municipality where he is
or discretion, notify the prosecutor of the
held
hearing of the application for bail or require
[Sec. 17, Rule 114, as amended by A.M. No.
him to submit his recommendation [Sec.
05-8-26-SC]
18, Rule 114]
b. Where bail is a matter of discretion,
Note: Where the grant of bail is a matter of
conduct a hearing of the application for bail
discretion, or the accused seeks to be released
regardless of whether or not the
on recognizance, the application may only be
prosecution refuses to present evidence to
filed in the court where the case is pending, on
show that the guilt of the accused is strong
trial, or appeal [Sec. 17, Rule 114, as amended
for the purpose of enabling the court to
by A.M. No. 05-8-26-SC]
exercise its sound discretion [Sec. 7-8,
Rule 114]
When bail is filed with a court other than where
c. Decide whether the guilt of the accused is
the case is pending, the judge who accepted
strong based on the summary of evidence
the bail shall forward it, together with the order
of the prosecution
of release and other supporting papers, to the
d. If the guilt of the accused is not strong,
court where the case is pending, which may,
discharge the accused upon the approval
for good reason, require a different one to be
of the bail bond [Sec. 19, Rule 114].
filed [Sec. 19, Rule 114]
Otherwise, the petition should be denied.
[Gacal v. Infante, A.M. No. RTJ- 04-1845
(2011)] 5. Guidelines in Fixing Amount
of Bail
Note: Evidence presented during the bail
hearing are automatically reproduced at the The considerations are primarily, but not
trial, but upon motion of either party, the court limited, to the following factors:
may recall any witness for additional a. Financial ability of the accused
examination unless the latter is dead, outside b. Nature and circumstances of the offense

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U.P. LAW BOC CRIMINAL PROCEDURE
c. Penalty for the offense charged
d. Character and reputation of the accused
e. Age and health of the accused
f. Weight of the evidence against the
accused
g. Probability of the accused appearing at the
trial
h. Forfeiture of other bail
i. Fact that accused was a fugitive from
justice when arrested
j. Pendency of other cases where the
accused is on bail
[Sec. 9, Rule 114]
The amount should be high enough to assure
the presence of the accused when required but
no higher than is reasonably calculated to fulfill
this purpose. [Yap Jr. v. CA, G.R. No. 141529
(2001)]
6. When Bail Not Required
When bail is not required
a. When a person has been in custody for a
period equal to or more than the possible
maximum imprisonment of the offense
charged
b. If the maximum penalty is destierro, he
shall be released after 30 days of
preventive imprisonment [Sec. 16, Rule
114].
c. In cases where a person is charged with
violation of a municipal/city ordinance, a
light felony and/or criminal offense, the
penalty of which is not higher than 6
months imprisonment and/or a fine of
P2,000, or both, where it is established that
he is unable to post the required cash or
bail bond [Sec. 1, R.A. 6036]. NOTE: The
title of R.A. 6036 reads “arresto mayor”
instead of “6 months”.
When bail is nonetheless required
a. When accused was caught committing the
offense in flagrante;
b. When accused confesses to the
commission of the offense unless he later
Page 397 of 525
REMEDIAL LAW
repudiates the same in a sworn statement
or in open court as having been extracted
through force or intimidation;
c. When accused is found to have previously
escaped legal confinement, evaded
sentence, or jumped bail;
d. When accused is found to have violated
Section 2, R.A. 6036, which provides that
the violation of the accused of the sworn
statement (required instead of bail) binding
himself, pending final decision of his case,
to report to the Clerk of the Court hearing
his case periodically every two weeks shall
justify the court to order his immediate
arrest, if the failure of the accused to report
is not justified;
e. When accused is a recidivist or habitual
delinquent or has been previously
convicted for an offense to which the
law/ordinance attaches an equal/greater
penalty or for two/more offenses to which it
attaches a lighter penalty
f. When accused committed the offense
while on parole or under conditional
pardon;
g. When accused has previously been
pardoned for violation of municipal/city
ordinance for at least two times [Sec. 1,
R.A. 6036].
7. Increase or Reduction of Bail
After the accused is admitted to bail, the court
may, upon good cause, increase or decrease
the amount [Sec. 20, Rule 114]
Increased bail
The accused may be committed to custody if
he does not give bail in the increased amount
within a reasonable period [Sec. 20, Rule 114]
Reduced bail
A person in custody for a period equal to or
more than the minimum of the principal penalty
prescribed for the offense charged may be
released on a reduced bond [Sec. 16, Rule
114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

8. Forfeiture and Cancellation of Automatic cancellation

a. Upon acquittal of the accused
Bail b. Upon dismissal of the case, or
c. Upon execution of judgment of conviction
Forfeiture of bail
[Sec. 22, Rule 114]
When the presence of the accused out on bail
is required by court or Rules of Court and he
failed to appear, his bail shall be declared 9. Application not a Bar to
forfeited and the bondsmen are given 30 days Objections on Illegal Arrest,
within which to: Lack of or Irregular
a. Produce their principal
Preliminary Investigation
b. Show cause why no judgment should be
rendered against them for the amount of
An application or an admission to bail shall not
their bail
bar the accused from challenging or
c. Produce the body of their principal or give
questioning the:
the reason for his non-production; and
a. Validity of his arrest
d. Explain why the accused did not appear
b. Legality of the arrest warrant
before the court when first required to do
c. Regularity of PI, or
so [Sec. 21, Rule 114].
d. Absence of PI
Failing in items (3) and (4) above, a judgment
Provided, that the accused raises them before
shall be rendered against the bondsmen, jointly
entering his plea.
and severally, for the amount of the bail. The
court shall not reduce or otherwise mitigate the
The court shall resolve the objections as early
liability of the bondsmen, unless the accused
as practicable but not later than the start of the
has been surrendered or is acquitted [Sec. 21,
trial of the case [Sec. 26, Rule 114]
Rule 114]

For the purpose of surrendering the accused,

the bondsmen may arrest him or, upon written
authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a
police officer or any other person of suitable
age and discretion [Sec. 23, Rule 114]
CANCELLATION OF BAIL
Application by bondsmen
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
upon:
a. Surrender of the accused; or
b. Proof of his death [Sec. 22(1), Rule 114].
G. ARRAIGNMENT AND
PLEA
Arraignment
It is the stage where issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void [People
v. Albert, G.R. No. 114001 (1995)].
The accused must be informed of:
1. The reason for the indictment
2. The specific charges the accused is bound
to face
3. The corresponding penalty for the charges

In order to cancel a bail on the ground of

surrender, the surrender must be voluntary.
[Esteban v. Alhambra, G.R. No. 135012
(2004)]

Page 398 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Rationale
Its importance is based on the constitutional
right of the accused to be informed. It is at this
stage that the accused, for the first time, is
given the opportunity to know the precise
charge that confronts him [Kummer v. People,
G.R. No. 174461 (2013)]
Plea
Pertains to the matter which the accused, on
his arraignment, alleges in answer to the
charge against him
1. How Made
Procedure of Arraignment
The court shall issue an order directing the
public prosecutor to submit the record of the
PI to the branch Clerk of Court for the latter
to attach the same to the record of the case.
↓ the same in the language or dialect known to
The court shall inform the accused of his
right to counsel and ask him if he desires to
have one. Unless the accused is allowed to
defend himself in person or has employed
counsel of his choice, the court must assign
a counsel de oficio to defend him. [Sec. 6,
Rule 114]
↓ court acquires jurisdiction over his person [Sec.
a. If the accused pleads not guilty, either:
1. The accused admits the act or
omission charged in the complaint or
information but interposes a lawful
defense, the order of trial may be
modified. [Sec. 11(e), Rule 119]
2. He raises a negative defense, that is,
he denies the charge, in which case
regular trial proceeds.
b. If the accused pleads guilty:
1. For a non-capital offense, the court
may receive evidence to determine
the penalty to be imposed [Sec. 4,
Rule 116]
2. For a capital offense, the court shall
conduct a searching inquiry into the
voluntariness and full
comprehension of the consequences
of his plea and shall require the
Page 399 of 525
REMEDIAL LAW
prosecution to prove his guilt and the
precise degree of culpability [Sec. 3,
Rule 116]
If the accused does not enter any plea or
makes a conditional plea, a plea of not guilty
is entered by the court [Sec. 1(c), Rule 116]
Arraignment
WHERE MADE: Arraignment is made before
the court where the complaint or information
was filed or assigned for trial. [Sec. 1(a), Rule
116]
HOW AND BY WHOM MADE: The
arraignment shall be made in open court by the
judge or clerk by furnishing the accused with a
copy of the complaint or information, reading
him, and asking him whether he pleads guilty
or not guilty. The prosecution may call at the
trial witnesses other than those named in the
complaint or information [Sec. 1(a), Rule 116]
When held
General rule: The accused should be
arraigned within 30 days from the date the
1(g), Rule 116]
Exceptions: Unless a shorter period is
provided by special law or Supreme Court
circular [Sec. 1(g), Rule 116]
a. When an accused is under preventive
detention, his case should be raffled within
3 days from filing and accused shall be
arraigned within 10 days from receipt by
the judge of the records of the case [RA
8493 (Speedy Trial Act)];
b. Where the complainant is about to depart
from the Philippines with no definite date of
return, the accused should be arraigned
without delay [R.A. 4908]
U.P. LAW BOC CRIMINAL PROCEDURE
Instances that are excluded in computing
the 30 day period for arraignment
1. Time of the pendency of the motion to
quash
2. Time of the pendency of the motion for a
bill of particulars
3. Other causes justifying suspension of the
arraignment [Sec. 1(g), Rule 116]
If the accused is under preventive detention
The pre-trial conference of his case shall be
held within 10 days after arraignment.
Presence of the offended party
The private offended party shall be required to
appear in the arraignment for the purpose of:
a. Plea bargaining
b. Determination of civil liability, and
c. Other matters requiring his presence
The court may allow the accused to enter a
plea of guilty to a lesser offense which is
necessarily included in the offense charged
with the conformity of the trial prosecutor alone
when the offended party failed to appear
despite due notice.
[Sec. 1(f), Rule 116; Part B(2), A.M. No. 03-1-
09-SC]
Duty of the court before arraignment
The court shall:
a. Inform the accused of his right to counsel;
b. Ask him if he desires to have one; and
c. Must assign a counsel de officio to defend
him, unless the accused:
1. Is allowed to defend himself in person;
or
2. Has employed a counsel of his choice
[Sec. 6, Rule 116]
Before arraignment and plea, the accused
may avail of any of the following:
a. Motion for bill of particulars: to enable
him to properly plead and prepare for trial
[Sec. 9, Rule 116]
b. Motion to suspend arraignment: upon
motion by the proper party, the arraignment
shall be suspended in the ff. cases:
1. Accused appears to be suffering from
unsound mental condition which
effectively renders him unable to fully
Page 400 of 525
REMEDIAL LAW
understand the charge against him and
to plead intelligently. In such case, the
court shall order his mental
examination and, if necessary, his
confinement for such purpose;
2. Existence of a prejudicial question;
3. A petition for review of the resolution
of the prosecutor is pending at either
the DOJ Secretary or the Office of the
President for a period of suspension
not exceeding 60 days from filing of
petition with the reviewing office. [Sec.
11, Rule 116]
c. Motion to quash the complaint or
information: on any of the grounds under
Sec. 3, Rule 117 in relation to Sec. 1, Rule
117
d. Challenge the validity of the arrest or
legality of the warrant or assail the
regularity or question the absence of PI of
the charge [Sec. 26, Rule 114]
If the accused does not question the legality of
the arrest or search, this objection is deemed
waived [People v. Racho y Raquero, G.R. No.
186529 (2010)]
Specific rules
a. Accused must personally appear during
arraignment and enter his plea; counsel
cannot enter plea for the accused. [Sec.
1[b], Rule 116]
b. Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary. [see Sec. 3(m), Rule 131]
c. If the accused has not been validly
arraigned, the judgment is void. [Riano
394, 2016 Ed., citing Taglay v. Daray, G.R.
No. 164258, (2012)]. Note that trial in
absentia may be conducted only after valid
arraignment. [Sec. 14(2), Art. III,
Constitution]
d. If accused went into trial without being
arraigned, subsequent arraignment will
cure the error provided that the accused
was able to present evidence and cross
examine the witnesses of the prosecution
during trial.
If an information is amended in substance
which changes the nature of the offense (not
merely as to form), arraignment on the
U.P. LAW BOC CRIMINAL PROCEDURE
amended information is mandatory.
[Teehankee v. Madayag, G.R. No. 103102
(1992)]
2. When a Plea of Not Guilty
Should Be Entered
a. When the accused so pleaded
b. When he refuses to plead or makes a
conditional plea [Sec. 1(c), Rule 116]
Conditional Plea of Guilty – A plea entered
by the accused subject to the proviso that a
certain penalty be imposed upon him. It is
equivalent to a plea of not guilty. [People v.
Madraga, G.R. No. 129299, (2000)]
c. When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116]
d. Where the plea of guilty was compelled by
violence or intimidation [Riano 402, 2016
Ed., citing People v. Baetiong, 2 Phil. 126]
e. When the plea is indefinite or ambiguous
[Riano 403, 2016 Ed., citing People v.
Strong, G.R. No. L-38626 (1975)]
Plea as Admission of Material Facts
General Rule: A plea of guilty is a judicial
confession of guilt. It is an admission of
material facts alleged in the Information,
including the circumstances alleged. [People v.
Comendador, G.R. No. L-38000 (1980)]
Exceptions:
a. When the accused did not fully understand
the meaning and consequences of his plea
Note: In such case, there is a necessity of a re-
arraignment and retaking of his plea [People v.
Nuelan, G.R. No. 123075 (2001)]
b. Where the information is insufficient to
sustain conviction of the offense charged.
[People v. Lopez, G.R. No. 1063, (1947)]
c. Where the information does not charge an
offense, any conviction thereunder being
void
d. Where the court has no jurisdiction
[Cadimas v. Director of Prisons, G.R. No.
L-9725, (1955)]
Page 401 of 525
REMEDIAL LAW
3. When Accused May Enter a
Plea of Guilty to a Lesser
Offense
DURING ARRAIGNMENT
Requisites
a. The lesser offense is necessarily included
in the offense charged
b. The plea must be with the consent of both
the offended party and the prosecutor
c. [Sec. 2, Rule 116]
In case of failure of the offended party to
appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone {Sec. 1(f), Rule 116]
AFTER ARRAIGNMENT BUT BEFORE
TRIAL
After arraignment but before trial, the accused
may still be allowed to plead guilty to said
lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or
information is necessary [Sec. 2, Rule 116]
AFTER TRIAL HAS BEGUN
After the prosecution has rested its case, a
change of plea to a lesser offense may be
granted by the judge, with the approval of the
prosecutor and the offended party if the
prosecution does not have sufficient evidence
to establish the guilt of the accused for the
crime charged. The judge cannot on its own
grant the change of plea [People v. Villarama,
G.R. No. 99287 (1992)]
4. Accused Pleads Guilty to
Capital Offense; What the
Court Should Do
Conditions that the trial court must observe to
obviate an improvident plea of guilty by the
accused:
a. Searching inquiry into the voluntariness
and full comprehension of the
consequences of the pleas; and
U.P. LAW BOC CRIMINAL PROCEDURE
b. Require prosecution to present evidence to
prove the guilt and precise degree of
culpability of the accused;
c. Accused may present evidence in his
behalf
[Sec. 3, Rule 116]
Note: A plea of guilty to a capital offense does
not result to an immediate rendering of
judgment [Riano, 407, 2016 Ed.]
5. Searching Inquiry
A “searching inquiry” means more than
informing cursorily the accused that he faces a
jail term but so also, the exact length of
imprisonment under the law and the certainty
that he will serve time at the national
penitentiary or a penal colony [People v. Bello,
G.R. No. 130411-14 (1999)]
The procedure in Sec. 3, Rule 116, when the
accused pleads guilty to a capital offense, is
mandatory. [Riano 407, 2016 Ed., citing
People v. Oden, G.R. No. 155511-22 (2004)]
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
A plea of guilty to a capital offense can be held
null and void where the trial court has
inadequately discharged the duty of conducting
the prescribed "searching inquiry” [People v.
Durango, G.R. Nos. 135438-39 (2000)]
Rationale
This is to enjoin courts to proceed with more
care where the possible punishment is in its
severest form and to avoid improvident pleas
of guilt [People v. Samontanez, G.R. No.
134530 (2000)]
Guidelines for conducting a search inquiry
a. Ascertain from the accused himself:
1. How he was brought into the custody of
the law
2. Whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations, and
Page 402 of 525
REMEDIAL LAW
3. Under what conditions he was detained
and interrogated during the
investigations.
b. Ask the defense counsel a series of
questions as to whether he had conferred
with, and completely explained to, the
accused the meaning and consequences
of a plea of guilty.
c. Elicit information about the personality
profile of the accused (age, socio-
economic status, and educational
background) which may serve as a
trustworthy index of his capacity to give a
free and informed plea of guilty.
d. Inform the accused the exact length of
imprisonment or nature of the penalty
under the law and the certainty that he will
serve such sentence.
e. Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime which is the basis
of his indictment.
f. All questions posed to the accused should
be in a language known and understood by
the latter.
g. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty.
The accused must be required to narrate
the tragedy or reenact the crime or furnish
its missing details [People v. Pastor, G.R.
No. 140208 (2002)]
6. Improvident Plea of Guilty to a
Capital Offense
An improvident plea is one without proper
information as to all the circumstances
affecting it; based upon a mistaken assumption
or misleading information/advice [Black’s Law
Dictionary]
Effect of an Improvident Plea
General rule: Plea of guilty should not be
accepted should not be held to be sufficient to
sustain a conviction in the following cases:
1. If the accused does not clearly and fully
understand the nature of the offense
charged
2. If he is not advised as to the meaning and
effect of the technical language often used
U.P. LAW BOC CRIMINAL PROCEDURE
in formal complaints and information in
qualifying the acts constituting the offense,
or
3. If he does not clearly understand the
consequences by way of a heavy and even
a capital penalty flowing from his admission
of his guilt of the crime [People v. De
Ocampo Gonzaga, G.R. No. L-48373
(1984)]
Exception: If the accused appears guilty
beyond reasonable doubt from the evidence
adduced by the prosecution and defense
When improvident plea may be withdrawn
At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty [Sec. 5,
Rule 116]
The withdrawal of a plea of guilty is not a matter
of right of the accused but of sound discretion
of the trial court [People v. Lambino, G.R. No.
L-10875 (1958)]
The reason for this is that trial has already
begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste.
Moreover, at this point, there is a presumption
that the plea was made voluntarily.
H. MOTION TO QUASH
Nature of motion to quash (MTQ)
1. Mode by which an accused assails the
validity of a criminal complaint or
information filed against him for
insufficiency on its face in point of law or
defects which are apparent in the face of
the information [Riano 328, 2011 Ed.]
2. Hypothetical admission of the facts alleged
in the information
Note: Fundamental test in determining
sufficiency of the material averments in an
Page 403 of 525
REMEDIAL LAW
information: WON the facts alleged which are
hypothetically admitted would establish the
essential elements of the crime defined by law.
3. Evidence aliunde or matters extrinsic of the
information are not to be considered.
EXCEPT when admissions made by the
prosecution [People v. Dela Rosa, G.R.
No. L-34112 (1980)],
Note: A motion to quash based on double
jeopardy or extinction of the criminal action or
liability, may, by their nature, be based on
matters outside of the allegations of the
information or complaint [Riano]
Form and contents
1. In writing
2. Signed by the accused or his counsel, and
3. Distinctly specify the factual and legal
grounds
[Sec. 2, Rule 117]
When filed
General rule: At any time before entering his
plea, the accused may move to quash the
complaint or information [Sec. 1, Rule 117]
Exception: When the grounds relied upon the
motion are:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense
charged
3. Extinction of the offense or penalty
4. Accused has been previously convicted, or
in jeopardy of being convicted, or acquitted
of the offense charged
They shall not be deemed waived if the
accused failed to file MTQ or to allege them in
the motion. [Sec. 9, Rule 117]
Need not be resolved before issuing
warrant of arrest
The judge had no positive duty to first resolve
the MTQ before issuing a warrant of arrest.
Sec. 5(a), Rule 112 required the judge to
evaluate the prosecutor's resolution and its
supporting evidence within a limited period of
only 10 days [De Lima v. Guerrero, G.R. No.
229781 (2017)]
U.P. LAW BOC CRIMINAL PROCEDURE
1. Grounds
In general
a. Facts charged do not constitute an offense;
b. Court trying the case has no jurisdiction
over the offense charged;
c. Court trying the case has no jurisdiction
over the person of the accused;
d. officer who filed the information had no
authority to do so;
e. The information does not conform
substantially to the prescribed form; (e.g. if
there is no certification)
f. More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
g. Criminal action or liability has been
extinguished;
h. Averments which, if true, would constitute
a legal excuse or justification;
i. Accused has been previously convicted or
acquitted of the offense charged, or the
case against him was dismissed or
otherwise terminated without his express
consent.
[Sec. 3, Rule 117]
The following grounds are exclusive. [Galzote
v. People, G.R. No. 164682 (2011)]
Waiver of Grounds
General rule: Failure of the accused to assert
any ground on a MTQ before he pleads, either
because he did not file MTQ or failed to allege
said ground in the MTQ shall be deemed a
waiver of any objections
Exceptions [OJ-AL-CJA]:
a. Facts charged do not constitute an Offense
b. Court trying the case has no Jurisdiction
over the offense charged
c. Criminal Action or Liability has been
Extinguished
d. Accused has been previously Convicted, or
in Jeopardy of being convicted, or
Acquitted of the offense charged
[Sec. 9, Rule 117]
e. Officer who filed information had no
authority to do so [Quisay v. People, G.R.
No. 216920 (2016)]
Page 404 of 525
REMEDIAL LAW
Note: In cases covered by the Rules on
Summary Procedure, MTQ is allowed only if
made on the grounds of lack of jurisdiction over
the subject matter or failure to comply with
barangay conciliation proceedings [Sec. 19,
Rules on Summary Procedure]
a. Facts charged do not constitute
an offense
Where it is clear that the information does not
really charge an offense, the case against the
accused must be dropped immediately [Dela
Chica v. Sandiganbayan, G.R. No. 144823
(2003)]
The prosecution shall be given by the court an
opportunity to correct the defect by
amendment. The motion shall be granted if the
prosecution fails to make the amendment, or
the complaint or information still suffers from
the same defect despite the amendment [Sec.
4, Rule 117]
b. Court has no jurisdiction over
the offense charged
In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of
jurisdiction [Sec. 15, Rule 110; Lopez v. City
Judge, G.R. No. L-25795 (1966)]
In private crimes, the complaint of the offended
party is necessary to confer authority to the
court [Donio-Teves v. Vamenta Jr., G.R. No. L-
38308 (1984)]
c. Court has no jurisdiction over
the person of the accused
When the accused files a MTQ based on this
ground, he must do so only on this ground. If
he raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou, G.R. No. L-
11171-77 (1993)]
U.P. LAW BOC CRIMINAL PROCEDURE
d. Officer who filed the
information had no authority to
do so
Authority to file and prosecute criminal cases is
vested in:
1. Prosecutor
a. Prosecutor must have territorial
jurisdiction to conduct PI of the offense
[Cudia v. CA, G.R. No. 110315 (1998)]
b. Prior written authority or approval of the
provincial or city prosecutor or chief
state prosecutor or the Ombudsman or
his deputy must first be obtained [Sec.
4, Rule 112]
2. Any peace officer, or public officer charged
with the enforcement of the law, in
Municipal Trial Courts or Municipal Circuit
Trial Courts when the prosecutor assigned
thereto or to the case is not available [Sec.
5, Rule 110]
3. Commission on Elections regarding
violations of election laws [Sec. 2(6), Art.
IX-C, Constitution]
4. By the graft investigating officer for any
information filed in the Sandiganbayan,
with prior approval of the Ombudsman
5. By duly deputized prosecutors and legal
officers of the COMELEC for election
offenses [Sec. 265, Art. XXII, Omnibus
Election Code]
Lack of authority of the officer is not cured by
silence, acquiescence, express consent or
even by amendment. [Cudia v. CA, G.R. No.
110315 (1998)]
e. Complaint or information does
not conform substantially to the
prescribed form
The formal and substantial requirements are
provided for in Secs. 6-12, Rule 110.
General rule: Lack of substantial compliance
renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may
be cured by amendment [Sec. 4, Rule 117]
Page 405 of 525
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Vague or broad allegations are generally not
grounds for a MTQ. The correct remedy is to
file for a bill of particulars [Sec. 9, Rule 116;
Enrile v. People, G.R. No. 213455 (2015)]
The accused may, before arraignment, move
for a bill of particulars to enable him properly to
plead and prepare for trial. The motion shall
specify the alleged defects of the complaint or
information and the details desired [Sec. 9,
Rule 116]
f. More than one offense is
charged
General rule: A complaint or information must
charge only one offense [Sec. 13, Rule 110]
Exceptions:
1. When the law prescribes a single
punishment for various offenses [Sec. 13,
Rule 110]
2. Complex and compound crimes, except
where one offense was committed to
conceal another
3. An offense incidental to the gravamen of
the offense charged
4. A specific crime set forth in various counts,
each of which may constitute a distinct
offense
5. If the accused fails to object; the court may
convict as many as are charged and
proved and impose on him the penalty for
each (Rule 120, Section 3) [People v.
Villamor, G.R. No. 124441 (1998)]
g. Criminal action or liability has
been extinguished
When criminal liability is extinguished:
1. Death of the accused, but liability for
pecuniary penalties is extinguished only if
death occurs before final judgment;
2. Service of sentence, which must be by
virtue of a final judgment and in the form
prescribed by law;
3. Amnesty;
4. Absolute pardon;
5. Prescription of the crime;
6. Prescription of the penalty;
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

7. Pardon in private offenses 1. Upon demurrer to evidence; [Riano 439,

[Art. 89, Revised Penal Code] 2016 Ed., citing People v. Tan, G.R. No.
167526 (2010)]
h. Contains averments that if true 2. Due to violation of right to speedy trial
would constitute a legal excuse (even if dismissal was upon motion of the
accused or with his express consent)
or justification
[Riano 439-440, 2016 Ed., citing Andres v.
Cacdac, G.R. No. L-45650 (1982)]
Examples:
1. Justifying circumstances [Art. 11, RPC]
2. Exempting circumstances [Art. 12, RPC] Dismissal Acquittal
3. Absolutory causes
Basis for Does not Always
i. Accused has been previously
action decide the based on the
convicted or acquitted of the case on the merits.
offense charged, or the case merits.
against him was dismissed or Defendant’s
otherwise terminated without Does not guilt was not
his consent determine proven
innocence or beyond
i. Double jeopardy guilt reasonable
doubt
See Double Jeopardy below.
Does Double Double
double jeopardy will jeopardy
ii. Dismissal without express
jeopardy not always always
consent
attach? attach attaches
This refers only to dismissal or termination
of the case. It does not Refer to Part the See Provisional Dismissal below.
conviction or acquittal [People v. Labatete,
G.R. No. L-12917 (1960)] 2. Distinguish Motion to Quash
If consent is not express, dismissal will be from Demurrer to Evidence
regarded as final (i.e., with prejudice to refilling)
[Caes v. IAC, G.R. Nos. 74989-90 (1989)] Motion to Demurrer to
quash evidence
The dismissal of a criminal case resulting in
acquittal made with the express consent of the When Filed before Filed after the
accused or upon his own motion will not place filed entering plea prosecution
the accused in double jeopardy, except in the [Sec. 1, Rule has rested its
following cases: 117] case [Sec. 23,
i. Insufficiency of the prosecution’s Rule 119]
evidence
ii. Denial of the right to a speedy trial Basis Insufficiency of Based upon
[Almario v. CA, G.R. No. 127772 (2001)] for grant the complaint the
or or information insufficiency of
When dismissal constitutes acquittal denial on its face the evidence
Dismissal constitutes acquittal when it is adduced by the
granted: prosecution

Page 406 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec. 23, Rule before

119] judgment”

Grounds Grounds are Ground is

stated in Sec. “insufficiency of
3, Rule 117 evidence” to
convict [Sec.
23, Rule 119]

Leave of Does not May be filed

court require a prior either with
leave of court leave or without 3. Effects of Sustaining the
[Sec. 1, Rule leave of court Motion to Quash
117] [Sec. 23, Rule
119] a. Filing another complaint or
Effect of Court may Grant is information
grant order the filing deemed an
of a new acquittal and General rule: Court may order that another
complaint or would preclude complaint or information be filed [Sec. 5, Rule
information the filing of 117)
[Sec. 4, Rule another
117] information or Exception: If MTQ was based on the following:
appeal by the 1. Criminal action or liability has been
prosecution extinguished
2. Double jeopardy.

Effect of The accused General Rule: b. Discharge of the accused

denial proceeds with Accused does
trial. If not lost his right General rule: If in custody, the accused shall
convicted, he to present not be discharged unless admitted to bail [Sec.
can appeal evidence 5, Rule 117] The order granting the MTQ must
and assign as state either release of the accused or
error the Exception: if cancellation of his bond.
denial of the demurrer was
MTQ. filed without Exception: The accused, if in custody, shall be
leave of court discharged if:
[Sec. 23, Rule 1. No order is made; or
119] 2. Having been made, no new information is
filed within
Remedy If the court, in The order a. The time specified in the order; or
denying the denying the b. Such further time as the court may
motion to motion for allow for good cause
quash acts leave to file a [Sec. 5, Rule 117]
with grave demurrer “shall
abuse of not be Exception to the exception: The accused
discretion, reviewable by shall not be discharged if he is in custody for
then certiorari appeal or by another charge [Sec. 5, Rule 117]
or prohibition certiorari
lies

Page 407 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

c. Amendment of the complaint or extinguishme

information nt of liability
or double
General rule: The court shall order that an jeopardy
amendment be made:
1. If the MTQ is based on an alleged defect of Remedy to Appeal after Appeal the
the complaint or information which can be be availed the trial order
cured by amendment of
2. If the MTQ is based on the ground that the
facts charged do not constitute an offense Consequen Arraignment Amend
[Sec. 4, Rule 117] ce of order information if
possible
Exception: Prosecution is precluded where
the ground for quashal would bar another Note: The remedy for an order denying a MTQ
prosecution for the same offense. is to go to trial, without prejudice to reiterating
the special defenses invoked in their MTQ
The prosecution may appeal from the order of [Serana v. Sandiganbayan, G.R. No. 162059
quashal to the appellate court. (2008)]

If the information was quashed because it did

not allege the elements of the offense charged,
but the facts so alleged constitute another
offense under a specific statute, the
prosecution may file a complaint for such
specific offense where dismissal is made prior
to arraignment and on MTQ [People v.
Purisima, G.R. No. L-42050-66 (1978)]
4. Exception to the Rule that
Sustaining the Motion is Not a
Bar to Another Prosecution
General rule: Grant of the MTQ will not be a
bar to another prosecution for the same
offense

Order Order Exception: It will bar another prosecution

denying granting when the MTQ is based on
MTQ MTQ a. The criminal action or liability has been
extinguished; or
Nature of Interlocutory Final Order b. The accused has been previously
Order convicted, or in jeopardy of being
convicted, or acquitted of the offense
Appealable Not Immediately charged
? appealable appealable [Sec. 6, Rule 117]
absent a but subject to
showing of rules on 5. Double Jeopardy
GAD. If there double
is GAD, then jeopardy
Double jeopardy presupposes that a first
file petition
jeopardy has already attached prior to the
for certiorari
second and that the first has been terminated
Is the main Does not Disposes of because he has already been: (1) convicted;
case dispose of the case (2) acquitted; or (3) the case against him
decided on the case upon its terminated or dismissed without his express
the merits? upon its merits when consent.
merits the ground is
the The right against double jeopardy prohibits the
prosecution for a crime of which he has been

Page 408 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
previously convicted or acquitted [Caes v. IAC,
G.R. No. 74989-90 (1989)]
Purpose of the Rule against Double
Jeopardy
It guarantees that the state shall not be
permitted to make repeated attempts to convict
an individual for an alleged offense, thereby
subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity.
Primarily, it prevents the State from:
1. Suing criminal processes as instrument to
harass the accused and wear him out by
the multitude of cases
2. Successively retrying the defendant in the
hope of securing a conviction
3. Successively retrying the defendant in the
hope of securing a greater penalty
RULE OF DOUBLE JEOPARDY
Requisites to successfully invoke double
jeopardy
a. A first jeopardy must have attached;
b. The first jeopardy must have been validly
terminated; and
c. The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or
is an attempt to commit the same or a
frustration thereof
[People v. Espinosa, G.R. Nos. 153714-20
(2003)]
Requisites for first jeopardy to attach
a. Valid indictment
b. Before a competent court;
c. Arraignment
d. A valid plea entered, and
e. The accused has been convicted or
acquitted, or the case dismissed or
otherwise validly terminated without his
express consent
[People v. Honrales, G.R. No. 182651 (2010)]
However, a dictated, coerced, and scripted
verdict of acquittal is a void judgment. It neither
binds nor bars anyone [Galman v.
Sandiganbayan, G.R. No. 72670 (1986)]
Page 409 of 525
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Effect
The conviction or acquittal of the accused or
the dismissal of the case shall be a bar to
another prosecution
a. for the offense charged, or
b. for any attempt to commit the same or
frustration thereof, or
c. for any offense which necessarily includes
or is necessarily included in the offense
charged in the former complaint or
information
[Sec. 7, Rule 117]
Double Jeopardy does not apply to these
cases
1. Administrative Cases
The dismissal of the criminal case does not
result in the dismissal of the administrative
case because there exists a difference
between the 2 remedies.
2. When the same criminal act gives rise to
two or more separate and distinct offenses
3. Preliminary investigation (PI)
A PI is merely inquisitorial. It is executive in
character and is not part of the trial; hence,
a PI is not a trial to which double jeopardy
attaches.
4. When the first offense was committed
under the RPC and the second was
committed under a special penal law
5. When two offenses are punished by two
separate penal laws
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

KINDS OF DOUBLE JEOPARDY

Double jeopardy for the same Double jeopardy when an act
offense punished by a law and an
ordinance

General Rule There is identity between the two
offenses not only when the
second offense is exactly the
same as the first, but also when
the second offense is an attempt
to or frustration of or is necessarily
included in the offense charged in
the first information. [Teehankee
Jr. v. Madayag, G.R. 103102
(1992)].
There can still be double jeopardy
although the first offense is
punishable under an ordinance,
while the second is punishable
under a law [Art. III, Sec. 21,
CONST.]

Exception a. The graver offense When an offense penalized by

developed due to supervening ordinance is, by definition, different
facts arising from the same act or from an offense penalized under a
omission constituting the former statute. [People v. Relova, G.R.
charge; No. L-45129 (1987)]
b. The facts constituting the
graver charge became known or
were discovered only after a plea
was entered in the former
complaint or information;
c. The plea of guilty to the
lesser offense was made without
the consent of the prosecutor and
of the offended party except when
offended party failed to appear
during such arraignment. [Sec 7,
Rule 117]

Test Whether or not evidence that

proves one likewise proves the
other. [People v. Ramos, G.R. No.
L-15958 (1961)]

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U.P. LAW BOC CRIMINAL PROCEDURE
6. Provisional Dismissal
Provisional dismissal
Provisional dismissal is dismissal without
prejudice to its being refiled or revived [Los
Baños v. Pedro, G.R. No. 173588 (2009)]
Cases are provisionally dismissed where there
has already been arraigned and the accused
consented to a provisional dismissal.
Requisites for a provisional dismissal
1. There must be express consent of the
accused; and
2. There must be notice to the offended party
[Sec. 8, Rule 117]
Time-bar Rule
Dismissal becomes permanent:
a. One year after issuance of the order
without the case having been revived for
offenses punishable
1. by imprisonment not exceeding 6
years, or
2. by fine of any amount, or
3. by both
b. Two years after issuance of the order
without the case having been revived for
offenses punishable by imprisonment of
more than 6 years
[Sec. 8, Rule 117]
Note: The periods are reckoned from the date
or the order of dismissal
Exception to the periods: The State may
revive beyond the periods provided there is a
justifiable necessity for the delay.
The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
the accused. [People v. Lacson, G.R. No.
149453 (2003)]
What to file?
Motion for permanent dismissal [Prof. Sanidad]
The following are conditions sine qua non for
the application of the time-bar rule
a. The prosecution, with the express
conformity of the accused, or the accused
Page 411 of 525
REMEDIAL LAW
moves for the provisional (sin perjucio)
dismissal of the case; or both the
prosecution and the accused move for a
provisional dismissal of the case [Sec. 8,
Rule 117]
b. The offended party is notified of the motion
for the provisional dismissal of the case
c. The court issues an order granting the
motion and dismissing the case
provisionally
d. The public prosecutor is served with a copy
of the order of provisional dismissal of the
case
[People v. Lacson, G.R. No. 149453 (2003)]
A case may be revived by
a. Refiling of the information
b. Filing of a new information for the same
offense or one necessarily included in the
original offense charged
Requirement of Preliminary Investigation
upon Revival of Case
General rule: Upon revival of the case, there
is no need for a new PI
Exceptions:
a. If the original witnesses have recanted their
testimonials or have died
b. If the accused is charged under a new
criminal complaint for the same offense
c. If the original charge is upgraded
d. If the criminal liability is upgraded from
accessory to principal
I. PRE-TRIAL
Its main objective is to achieve an expeditious
resolution of the case. This proceeding is
mandatory in criminal cases and is conducted
before trial [Sec. 1, Rule 118]
U.P. LAW BOC CRIMINAL PROCEDURE
1. Matters to Be Considered
During Pre-Trial
Coverage
All criminal cases cognizable by the
Sandiganbayan, RTC, MeTC, MTCC, MTC
and MCTC [Sec. 1, Rule 118]
Period
General rule: The court shall order a pre-trial
conference after arraignment and within 30
days from the date the court acquires
jurisdiction over the person of the accused.
Exception: A shorter period may be provided
by special laws or SC circulars [Sec. 1, Rule
118]
Things considered
a. Plea bargaining
b. Stipulation of facts
c. Marking for identification of evidence
d. Waiver of objections to admissibility of
evidence
e. Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial)
f. Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case [Sec. 1, Rule 118]
Plea bargaining
Plea bargaining has been defined as "a
process whereby the accused and the
prosecution work out a mutually satisfactory
disposition of the case subject to court
approval" [Estipona Jr. v. Lobrigo, G.R. No.
226679 (2017)]
It usually involves the defendant pleading guilty
to a lesser offense or to one or some of the
counts of a multi-count indictment in return for
a lighter sentence than that for the graver
charge [People v. Mamarion, G.R. No. 137554
(2003)]
The conviction of the accused of the lesser
offense precludes the filing and prosecution of
the offense originally charged in the
information, except when the plea of guilty to a
Page 412 of 525
REMEDIAL LAW
lesser offense is without the consent of the
offended party and the prosecutor [People v.
De Luna, G.R. No. L-77969 (1989); Sec. 7(c),
Rule 117, see Sec. 2, Rule 116]
With Sec. 23 of R.A. 9165 being declared
unconstitutional in Estipona Jr. v. Lobrigo [G.R.
No. 226679 (2017)], offenses involving
dangerous drugs may now be the subject of
plea bargain [see DOJ Circular No. 61 (2017)]
Stipulation of facts
General Rule: Stipulation of facts is allowed in
criminal cases
Exception: Circumstances that qualify a crime
and increases its penalty to death cannot be
the subject of stipulation [People v. Sitao, G.R.
No. 146790 (2002)]
Marking for identification of evidence
No evidence may be presented and offered
during trial other than those identified and
marked during the pre-trial, except when
allowed by the court for good cause shown.
Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the presentation
of evidence. [People v. Santiago, G.R. No. L-
80778 (1989)]
Role of the judge before pre-trial
During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and
all questions must be directed to him to avoid
hostilities between the parties [Item B.7, A.M.
No. 03-1-09-SC]
2. What the Court Should Do
When Prosecution and
Offended Party Agree to the
Plea Offered by the Accused
The Court shall:
a. Issue an order which contains the plea
bargaining arrived at
b. Proceed to receive evidence on the civil
aspect of the case; and
U.P. LAW BOC CRIMINAL PROCEDURE
c. Render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence
[Item B.5, A.M. No. 03-1-09-SC]
General rule: Court approval is required.
Exception: Agreements not covering matters
referred to in Sec. 1, Rule 118 (supra), need
not be so approved [Item B.8, A.M. No. 03-1-
09-SC]
Effect
The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated
[Bayas v. Sandiganbayan, G.R. No. 143689-91
(2002)])
3. Pre-Trial Agreement
Requirements
a. Reduced in writing;
b. Signed by the accused and counsel;
c. With approval of court if agreements cover
matters in Sec. 1, Rule 118
[Sec. 2, Rule 118]
Effects:
1. Constitutional right to present evidence is
waived [Rivera v. People, G.R. No. 163996
(2005)]
2. If the requisites are not followed –
admissions shall be inadmissible as
evidence [Item I-B[8], A.M. No. 03-1-09-SC
(2004)]
All proceedings during pre-trial shall be:
1. Recorded
2. Transcripts prepared
3. Minutes signed by the parties and their
counsel
4. Non-Appearance during Pre-
Trial
Who must be present during pre-trial
1. Counsel of accused
2. Prosecutor
Page 413 of 525
REMEDIAL LAW
Note: The accused is not required to attend
(unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to the
contents of such. The complainant is also not
required to appear during pre-trial. It is the
prosecutor who is required to appear at the pre-
trial [People v. Judge Tac-An, G.R. No. 148000
(2003)]
The court may impose proper sanctions or
penalties, if counsel for the accused or the
prosecutor to enforce the mandatory character
of the pre-trial in criminal cases:
a. Does not appear at the pre-trial
conference; and
b. Does not offer an acceptable excuse for his
lack of cooperation [Sec. 3, Rule 118]
5. Pre-Trial Order
Pre-trial order shall:
a. Be issued by the trial judge;
b. Be issued within 10 days after the
termination of the pre-trial
c. Contain the following:
1. Actions taken
2. Facts stipulated
3. Evidence marked
4. Admissions made
5. Number of witnesses to be presented;
and
6. Schedule of trial
Effect
a. Binds the parties
b. Limits the trial to those matters not
disposed of; and
c. Controls the course of the action during
trial, unless modified by the court to prevent
manifest injustice
[Sec. 4, Rule 118]
The procedure is substantially the same in civil
cases, except that any modification of the pre-
trial order in civil cases must be made before
the trial. No such limitation is provided for in
criminal cases.
U.P. LAW BOC CRIMINAL PROCEDURE
APPLICATION OF JUDICIAL AFFIDAVIT
RULE
a. The Judicial Affidavit Rule shall apply to all
criminal actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use
of judicial affidavits, irrespective of the
penalty involved; or
3. With respect to the civil aspect of the
actions, whatever the penalties
involved are.
b. The prosecution shall submit the judicial
affidavits of its witnesses not later than five
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. No further judicial affidavit,
documentary, or object evidence shall be
admitted at the trial.
c. 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 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.
[Sec. 9, AM 12-8-8-SC]
J. TRIAL
1. Instances When Presence of
Accused is Required by Law
Right of the Accused to be Present
In all criminal prosecutions, the accused shall
have the right to be present and defend in
person and by counsel at every stage of the
Page 414 of 525
REMEDIAL LAW
proceedings, from arraignment to promulgation
of the judgment [Sec. 1(c), Rule 115].
Instances where presence of accused is
mandatory [AP]:
a. At Arraignment; [Sec. 1(b), Rule 116]
b. At the Promulgation of judgment, unless
the conviction is for a light offense [Sec. 6,
Rule 120]
Waiver of right to be present
General rule: The accused may waive his
presence at the trial pursuant to the stipulations
set forth in his bail [Sec. 1(c), Rule 115]
Exception: Unless his presence is specifically
ordered by the court for purposes of
identification [Sec. 1(c), Rule 115]
Exception to the exception: The presence of
the accused is no longer required when he
unqualifiedly admits in open court after
arraignment that he is the person named as
defendant in the case on trial [Carredo v.
People, G.R. No. 77542, March 19, 1990]
Other instances of waiver [WE]
a. The absence of the accused Without
justifiable cause at the trial of which he had
notice
b. When an accused under custody Escapes
until custody over him is regained
[Sec. 1(c), Rule 115]
2. Suspension on Account of
Absence of Witnesses
Effect of Absence of Witness
Any period of delay resulting from the absence
or unavailability of an essential witness shall be
excluded in computing the time within which
trial must commence [Sec. 3, Rule 119]
Requisites for exclusion of the period of
delay: [AUE]
a. Witness is Absent or Unavailable
● “Absent”: whereabouts are unknown
or cannot be determined by due
diligence
U.P. LAW BOC CRIMINAL PROCEDURE
● “Unavailable”: whereabouts are
known but presence for trial cannot be
obtained by due diligence
b. Witness must be Essential [Sec. 3(b),
Rule 119]
● “Essential”: indispensable,
necessary, or important in the highest
degree [Riano 530, 2011 Updated Ed.,
citing 5 Black’s Law Dictionary 490]
Motion for Bail: A remedy to secure
appearance of a material witness
Either party may file a motion for bail with
proof/under oath that a material witness will
testify when required. When the court is
satisfied of such, it may order the witness to
post bail.
Effect of refusal to post bail
If the material witness refuses to post bail, the
court shall commit him to prison until he
complies or is legally discharged after his
testimony has been taken. [Sec. 14, Rule 119]
3. Trial in absentia
Requisites for Trial in Absentia [ANU]
a. Accused has been Arraigned
b. He was duly Notified of trial
c. His failure to appear is Unjustified
[Bernardo v. People, G.R. No. 166980 (2007)]
Purpose
This is to speed up disposition of cases.
[People v. Agbulo, G.R. No. 73875 (1993)]
4. Remedy When Accused is not
Brought to Trial within the
Prescribed Period
Right to Speedy Trial: A Constitutional
Right
No provision of law on speedy trial and no rule
implementing the same shall be interpreted as
a bar to any charge of denial of the right to
speedy trial guaranteed by Sec. 14(2), Art. III,
Constitution [Sec. 10, Rule 119]
Page 415 of 525
REMEDIAL LAW
Purpose of Right to Speedy Trial
The rights of the accused to a speedy trial and
speedy disposition of the case are meant to
prevent the oppression of the accused by
holding criminal prosecution, suspended over
him for an indefinite time, and to prevent delays
in the administration of justice. [Corpuz v.
Sandiganbayan, G.R. No. 162214 (2004)]
Important Periods to Observe
1. Between acquisition of jurisdiction over the
person of the accused to arraignment and
pre-trial:
a. Detained accused: Within 10 days
b. Non-detained accused: Within 30 days
[A.M No 15-06-10-SC, III No 8]
2. Between receipt of pre-trial order to trial:
Within 30 days [Sec. 1, Rule 119]
3. Periods of delay excluded from the
computation [Sec. 3, Rule 119]
Factors to consider when assessing denial
of right to speedy trial [DRAP]
a. Duration of the delay
b. Reason therefor
c. Assertion of the right or failure to assert it,
and
d. Prejudice caused by such delay
[Corpuz v. Sandiganbayan, G.R. No. 162214
(2004)]
Remedy
Motion to dismiss on the ground of denial of his
right to speedy trial. [Sec. 9, Rule 119]
Dismissal on the ground of violation of the
right to speedy trial has an effect similar to
that of acquittal
The dismissal shall be subject to the rules on
double jeopardy. [Sec. 9, Rule 119]
Waiver of Right to Speedy Trial
Failure of the accused to move for dismissal
prior to trial shall constitute a waiver of the right
to dismiss on the ground of denial of his right to
speedy trial [Sec. 9, Rule 119]
When there is no violation of the right to
speedy trial
There is no violation of the right where the
delay is imputable to the accused. When the
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

accused resorts to tactical maneuvers, he
waives his right to speedy trial. [People v.
Jardin, G.R. Nos. L-33037-42 (1983)]
Right to Speedy Trial v. Right to Speedy
Disposition of Cases
Right to Speedy
Right to Speedy
Disposition of
Trial
Cases
Reckoning Point
First day of trial Date when the case
is submitted for
decision
Application
N/A When considering
delay for the purpose
of dismissal on the
ground of violation of
right to speedy
disposition, delay
“pre-trial” may be
considered (i.e.,
delay during
preliminary
investigation)
[Cosculluela v.
Sandiganbayan,
G.R. No. 191411
(2013)]
Burden of proof
a. The accused has the burden of proving the
ground of denial of right to speedy trial for
the motion.
b. The prosecution has the burden of going
forward with the evidence to establish the
exclusion of time under Sec. 3, Rule 119.
[Sec. 9, Rule 119]
5. Requisites for Discharge of
the Accused to Become a
State Witness
Requisites for Discharge to be Proper
[TRHS]
a. Two or more persons are jointly charged
with the commission of any offense.
b. The prosecution files the motion before
Resting its case
c. The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a Hearing in
support of the discharge
d. The court is Satisfied that the conditions
required by the Rules are present. [Sec.
17, Rule 119]
Requisites as to the Testimony to be a State
Witness [ANCoMM]
a. Absolute necessity for the testimony of the
accused whose discharge is requested
• He alone has the knowledge of the
crime, and not when his testimony
would simply corroborate or strengthen
the evidence in the hands of the
prosecution [Flores v. Sandiganbayan,
G.R. No. L-63677 (1983)];
b. There is No other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused
c. The testimony can be substantially
Corroborated in its material points
d. The accused does not appear to be the
Most guilty
e. The accused has not, at any time, been
convicted of any offense involving Moral
turpitude [Sec. 17, Rule 119]
6. Effects of Discharge of
Accused as State Witness
Effects of Discharge as State Witness
a. Evidence adduced in support of the
discharge shall automatically form part of
the trial [Sec. 17, Rule 119]
• Note: If the motion to discharge is
denied, the sworn statement is
inadmissible as evidence.
b. Discharge operates as an acquittal and a
bar to further prosecution for the same
offense [Sec. 18, Rule 119]
Exception: When the accused fails or refuses
to testify against his co-accused
Notes:
● Any error in asking for and in granting the
discharge cannot deprive the one

Page 416 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
discharged of the acquittal and the
constitutional guaranty against double
jeopardy [People v. Verceles, G.R. No.
130650 (2002)]
● Subsequent amendment of the information
does not affect discharge [People v. Taruc,
G.R. No. L-14010 (1962)]
7. Demurrer to Evidence
What is a Demurrer
A demurrer to evidence is a motion to dismiss
due to the insufficiency of the evidence
presented by the prosecution to overturn the
presumption of innocence in favor of the
accused. [Riano 490, 2016 Ed.]
Dismissal on the Grounds of Insufficiency
of Evidence
a. May be initiated by the court motu proprio,
after giving the prosecution the opportunity
to be heard; or
b. Upon demurrer to evidence filed by the
accused
[Sec. 23, Rule 119]
How Demurrer to Evidence is Made
1. With Leave of Court:
● Oral Motion: After the prosecution has
rested its case, the court shall inquire
from the accused if he desires to move
for leave of court to file a demurrer to
evidence or proceed with the
presentation of his 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, III No 13 (d)]
● Written Motion: It must specifically
state its grounds. Filed within a non-
extendible period of 5 days after the
prosecution rests its case. Prosecution
may then oppose within a non-
extendible period of 5 days from
receipt. [Sec. 23, Rule 119]
● If leave of court is granted, the
demurrer must be filed within a non-
extendible period of 10 days from the
date leave of court is granted, and the
corresponding comment shall be filed
within a non-extendible period of 10
Page 417 of 525
REMEDIAL LAW
days from receipt of demurrer to
evidence. [A.M No 15-06-10-SC, III No
13 (d)]
2. Without Leave of Court: If despite the
denial of the motion for leave, the accused
insists on filing the demurrer to evidence,
the previously scheduled dates for the
accused to present evidence shall be
cancelled. [A.M No 15-06-10-SC, III No 13
(d)]
Test of Sufficiency of Prosecution’s
Evidence:
The evidence of the prosecution must prove
beyond reasonable doubt the:
a. Commission of the crime; and
b. Precise degree of participation of the
accused
[Singian, Jr.v. Sandiganbayan, G.R. Nos.
195011-19 (2013)]
Effect of granting demurrer
The court dismisses the action on the ground
of insufficiency of evidence [Sec. 23, Rule 119]
This amounts to acquittal of the accused
[People v. Sandiganbayan, G.R. No. 164577
(2010)]
Note: The order granting the demurrer is not
appealable but may be reviewed via certiorari
under Rule 65 [People v. Sandiganbayan, G.R.
No. 164577 (2010)]
Effect of denial of motion for leave to file
demurrer
a. Accused may choose between
1. Filing the demurrer even without leave,
or
2. Adducing evidence for his defense
[Sec. 23, Rule 119]
b. Order denying the motion for leave or order
denying the demurrer itself, is not
reviewable by appeal or by certiorari before
judgment [Sec. 23, Rule 119];
Procedure if there are several accused
If there are 2 or more accused and only one
presents a demurrer without leave of court:
● the court may defer resolution until
decision is rendered on the other accused.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

If it can be shown from the decision that the Grant of No appeal is

resolution on the demurrer was rendered not demurrer allowed because
only on the basis of the prosecution’s evidence entitles the grant is
but also on the evidence adduced by his co- plaintiff to tantamount to
accused, then the demurrer is deemed appeal and if acquittal
resolved
dismissal is
reversed,
Right of the accused to present evidence Appeal
after demurrer is denied the
Filed defendant is
Filed with deemed to
without
leave have waived
leave
of court his right to
of court
present
Waives the
May adduce evidence
right to
Right to evidence in Cannot be Court may on its
present
Present his defense done by own initiative
evidence
Evidence [Sec. 23, court motu dismiss the
[Sec. 23,
Rule 119] Motu proprio action after
Rule 119]
Purpose is to proprio giving
determine Submits the prosecution an
whether or case for opportunity to be
not the judgment on heard
Purpose demurrer the basis of
was filed the evidence 8. Guidelines on Continuous
merely to for the Trial (A.M. No. 15-06-10-SC)
stall the prosecution
proceedings a. Applicability

Demurrer in a Civil Case v. Criminal Case Cases to which the Guidelines Apply
Civil Criminal 1. Newly filed criminal cases, including those
Case Case governed by Special Laws and Rules, in
Failure of Insufficiency of the First and Second Level Courts, the
plaintiff to evidence Sandiganbayan and the Court of Tax
Premise show that he Appeals as of Sept 1, 2017
2. Pending criminal cases with respect to the
is entitled to
remainder of the proceedings
relief
Requires no May be filed with Note: These guidelines are not applicable to
Leave of
leave of or without leave cases covered by the Rule on Summary
Court
court of court Procedure
Denial of Accused may
demurrer lose his right to b. Prohibited and Meritorious
does not present Motions
Right to
make the evidence if he
present
defendant filed the Prohibited Motions [JPreReQBAS]
evidence
lose his right demurrer The following motions are prohibited and shall
to present without leave of be denied outright before the scheduled
evidence court

Page 418 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
arraignment without need of comment and/or
opposition:
1. Motion for Judicial determination of
probable cause
2. Motion for Preliminary Investigation:
a. When it is filed beyond the 5-day
reglementary period in inquest
proceedings under Sec. 6, Rule 112
b. When required under Sec. 8, Rule 112,
or allowed in inquest proceedings and
the accused failed to participate in the
preliminary investigation despite due
notice
3. Motion for Reinvestigation of the
prosecutor recommending the filing of
information once the information has been
filed before the court:
a. If the motion is filed without prior leave
of court
b. When preliminary investigation is not
required under Sec. 8, Rule 112, and
c. When the regular preliminary
investigation is required and has been
actually conducted and the grounds
relied upon in the motion are not
meritorious, such as issues of
credibility, admissibility of evidence,
innocence of the accused, or lack of
due process when the accused was
actually notified, among others
4. Motion to Quash Information when the
ground is not one of those stated in Sec. 3,
Rule 117
5. Motion for Bill of particulars that does not
conform to Sec. 9, Rule 116
6. Motion to suspend Arraignment based on
grounds not stated under Sec. 11, Rule
116
7. Petition to Suspend criminal action on the
ground of Prejudicial question, when no
civil case has been filed, pursuant to Sec.
7, Rule 111
Meritorious Motions [WASSlapp]
Motions that allege plausible grounds
supported by relevant documents and/or
competent evidence, except those that are
already covered by the Revised Guidelines,
are meritorious motions, such as:
1. Motion to Withdraw information, or to
downgrade the charge in the original
Page 419 of 525
REMEDIAL LAW
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review
2. Motion to Quash Warrant of Arrest
3. Motion to Quash Search Warrant under
Sec. 14 of Rule 121 or motion to suppress
evidence
4. Motion to dismiss on the ground that
criminal case is a Strategic Lawsuit against
Public Participation (SLAPP) under Rule 6
of the Rules of Procedure for
Environmental Cases
c. Arraignment and Pre-Trial
Schedule of Arraignment and Pre-Trial
● If accused is detained: within 10 calendar
days from receipt of case
● If accused is not detained: within 30
calendar days from acquiring jurisdiction
over the person
Notice of Arraignment and Pre-Trial
Notice shall be sent to the accused, his
counsel, private complainant or complaining
law enforcement agent, public prosecutor, and
witnesses whose names appear in the
information for purposes of plea bargaining,
arraignment and pre-trial. [A.M No 15-06-10-
SC, III No 8(b)]
Waiver of Reading of the Information
The court may allow a waiver of the reading of
the information if:
a. There are multiple cases,
b. There is personal examination of the
accused by the court,
c. Full understanding and express consent of
the accused and his counsel,
d. Such consent is expressly stated in both
the minutes/certificate of arraignment and
order of arraignment,
e. The court shall explain the waiver to the
accused in a language/dialect known to
him and ensure his full understanding of
the consequences [A.M No 15-06-10-SC,
III No 8(c)]
U.P. LAW BOC CRIMINAL PROCEDURE
Plea Bargaining Except in Drug Cases
If the accused desires to enter a plea of guilty
to a lesser offense, plea bargaining shall
immediately proceed, provided the private
offended party in private crimes, or the
arresting officer in victimless crimes, is present
to give his consent with the conformity of the
public prosecutor to the plea bargaining.
Thereafter, judgement shall be immediately
rendered in the same proceedings. [A.M No
15-06-10-SC, III No 8(d (i))]
Plea of Guilty to the Crime Charged in the
Information
If the accused pleads guilty to the crime
charged in the information, judgement shall be
immediately rendered except in those cases
involving capital punishment. [A.M No 15-06-
10-SC, III No 8(d (ii))]
Where No Plea Bargaining or Plea of Guilty
Takes Place
If the accused does not enter a plea of guilty,
the court shall immediately proceed with the
arraignment and the pre-trial. [A.M No 15-06-
10-SC, III No 8(d (iii))]
Arraignment and Preliminary Conference of
Mediatable Cases Subject to the Rule on
Summary Procedure
The arraignment and preliminary conference
shall be held simultaneously and the court shall
take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
preliminary conference. [A.M No 15-06-10-SC,
III No 8(e)]
Absence of parties in the pre-trial
The court shall proceed with the pre-trial
despite the absence of the accused and/or
private complainant, provided:
a. They were duly notified, and
b. The counsel for the accused and public
prosecutor are present. [A.M No 15-06-10-
SC, III No 8(f (i))]
Stipulations
Proposals for stipulations shall be done with
the active participation of the court itself and
shall not be left alone to the counsels. [A.M No
15-06-10-SC, III No 8(f (ii))]
Page 420 of 525
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Marking of Evidence
The documentary evidence of the prosecution
and the accused shall be marked. [A.M No 15-
06-10-SC, III No 8(f (iii))]
Pre-Trial Order
The Pre-trial Order shall immediately be served
upon the parties and counsel on the same day
after the termination of the pre-trial. [A.M No
15-06-10-SC, III No 8(f (iv))]
d. Trial and Memoranda
TRIAL
Examination of witnesses
The court shall encourage the accused and the
prosecution to avail of:
a. For the accused: Application for
examination of witness for the accused
before trial [Sec. 12 and 13, Rule 119]
b. For the prosecution: Conditional
Examination of Witness for the prosecution
[Sec. 15, Rule 119; A.M No 15-06-10-SC,
III No 13 (a)]
Absence of counsel de parte
In the absence of the counsel de parte, the
hearing shall proceed upon appointment by the
court of a counsel de officio. [A.M No 15-06-10-
SC, III No 13 (b)]
Oral Offer of Evidence
• How made: the offer of evidence, the
comment/objection thereto, and the court
ruling shall be made orally.
o If exhibits are attached to the record: In
making the offer, the counsel shall cite
the specific page number of the court
record where the exhibits being offered
are found. The court shall ensure that
all exhibits offered are submitted to it
on the same day of the offer.
o If the exhibits are not attached to the
record: the party making the offer must
submit the same during the offer of
evidence in open court.
• When made: on the same day after the
presentation of his last witness, the
opposing party is required to immediately
U.P. LAW BOC CRIMINAL PROCEDURE
interpose his oral comment/objection
thereto. Thereafter, the court shall make a
ruling on the offer of evidence in open court
[A.M No 15-06-10-SC, III No 13 (c)]
Presentation of Rebuttal and Sur-rebuttal
Evidence
If the court grants the motion to present rebuttal
evidence, the prosecution shall immediately
proceed with its presentation after the defense
has rested its case, and orally rest its case in
rebuttal after the presentation of its last rebuttal
witness. Thereafter, the accused shall
immediately present sur-rebuttal evidence, if
there is any, and orally rest the case after the
presentation of its last sur-rebuttal witness.
Thereafter, the court shall submit the case for
decision. [A.M No 15-06-10-SC, III No 13 (e)]
One day examination of witness rule
The court shall strictly adhere to the rule that a
witness has to be fully examined in one day.
[A.M No 15-06-10-SC, III No 13 (f)]
MEMORANDA
Submission of Memoranda
• Submission of memoranda is discretionary
on the part of the court
• Format:
o Does not exceed 25 pages
o Single spaced
o Legal sized paper
o Size 14 font
• Period to submit shall be non-extendible
and shall not suspend the running of the
period of promulgation of the decision. With
or without memoranda, the promulgation
shall push through as scheduled. [A.M No
15-06-10-SC, III No 14]
e. Promulgation
Schedule of Promulgation
• Date of promulgation shall be announced
in open court and included in the order
submitting the case for decision
• Date shall not be more than 90 calendar
days from the date the case is submitted
for decision
Page 421 of 525
REMEDIAL LAW
o Exception: Case is covered by Special
Rules and other laws which provide for
a shorter period [A.M No 15-06-10-SC,
III No 16(a)]
Resolution of motion for reconsideration of
judgment of conviction or motion for new
trial
A motion for reconsideration of judgment of
conviction or motion for new trial filed within 15
days from promulgation shall be resolved
within a non-extendible period of 10 calendar
days from the submission of the comment of
the prosecution. With or without comment, the
court shall resolve the motion within the 10-day
period. [A.M No 15-06-10-SC, III No 16(b)]
K. JUDGMENT
Judgment is the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition on him of the
proper penalty and civil liability, if any [Sec. 1,
Rule 120]
1. Requisites of a Judgment
Requisites
a. Written in the official language
Note: If given verbally, it is incomplete
[People v. Catolico, G.R. No. L-31260
(1972)]
b. Personally and directly prepared by the
judge
c. Signed by the judge
d. Contains clearly and distinctly a statement
of the facts and the law upon which
judgment is based
[Sec. 1, Rule 120]
There is sufficient compliance if the decision
summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Jurisdictional requirements fails to object to it before trial, the court may

a. Jurisdiction over the subject matter convict him of as many offenses as are
b. Jurisdiction over the territory charged and proved, and impose on him the
c. Jurisdiction over the person of the accused penalty for each offense, setting out separately
[Riano, 499, 2016 Ed., citing Cruz v. CA, G.R. the findings of fact and law in each offense
No. 123340 (2002) and Antiporda v. [Sec. 3, Rule 120]
Garchitorena, G.R. No. 133289 (1999)]
Variance between allegation and proof
Judge who renders decision (Variance Doctrine)
The judge who presided over the entire trial General rule: The defendant can be convicted
would be in a better position to ascertain the only of the crime with which he is charged
truth or falsity of the testimonies. But the judge [Riano 504, 2016 Ed.]
who only took over can render a valid decision
by relying on the transcript. It does not violate However, a minor variance between the
due process [People v. Badon, G.R. No. information and the evidence does not alter the
126143 (1999)] nature of the offense, nor does it determine or
qualify the crime or penalty, so that even if a
2. Contents of Judgment discrepancy exists, this cannot be pleaded as
a ground for acquittal [People v. Noque, G.R.
No. 175319 (2010)]
a. Conviction
Exception: Accused shall be convicted if:
The judgment of conviction shall state [LQ-P-
a. Offense proved which is included in the
Pe-CD]:
offense charged (offense proved is lesser)
1. The Legal Qualification of the offense
– some or all of the ingredients of the
constituted by the acts committed by the
offense charged constitutes the offense
accused and the aggravating/mitigating
proved
circumstances which attended its
commission
Example: Murder includes homicide;
2. The Participation of the accused in the
Serious physical injuries includes less
offense, whether as principal, accomplice
serious or slight physical injuries; Robbery
or accessory after the fact
includes theft [Riano]
3. The Penalty imposed upon the accused
4. The Civil liability or Damages caused by his
b. Offense charged which is included in the
wrongful act/omission to be recovered from
offense proved (offense charged is lesser)
the accused by the offended party, if there
– essential ingredients of the offense
is any, unless the enforcement of the civil
charged constitute or form part of the
liability by a separate civil action has been
ingredients of the offense proven
reserved/waived.
[Sec. 2, Rule 120]
Example: Less serious physical injuries are
included in serious physical injuries; Acts of
The penalty should not be imposed in the
lasciviousness are included in rape; Theft
alternative. There should be no doubt as to the
is included in robbery [Riano]
offense committed and the penalty for it.
Where a complex crime is charged and the
Judgment for two or more offenses
evidence fails to support the charge as to one
Also known as duplicitous complaint or
of the component offenses, the accused can be
information [Prof. Sanidad]
convicted of the one which is proven [People v.
Llaguno, G.R. No. 91262 (1998)]
When two or more offenses are charged in a
single complaint or information but the accused

Page 422 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Exception to the exception: Where there are
facts that supervened after the filing of the
information which change the nature of the
offense.
b. Acquittal
The judgment of acquittal shall state whether:
1. The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2. Merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission complained from which the
civil liability might arise did not exist.
[Sec. 2, Rule 120]
Acquittal Dismissal
Effect Terminates the case
Decision on Not on the
the merits merits but no
Decision is based on a finding that
based on finding that accused is
the accused not guilty
is not guilty
Effect of Acquittal on Civil Liability
General Rule: Acquittal based on failure to
prove guilt beyond reasonable doubt does not
extinguish the civil liability arising from his acts.
[Lontoc v. MD Transit, G.R. No. L-48949
(1988)]
Exception: Acquittal extinguishes civil liability
only when the judgment includes a declaration
that the facts from which the civil liability might
arise did not exist [Lontoc v. MD Transit, G.R.
No. L-48949 (1988)] Thus:
1. The court may nonetheless hold the
accused civilly liable in favor of the
offended party, or it may deny the award of
civil damages expressly or impliedly by
being silent on the matter.
2. The losing party may appeal the ruling on
the civil liability, as in any other ordinary
Page 423 of 525
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appeal, in his name and not in the name of
the People.
The Court is not precluded from expressing
disapproval of certain acts
General rule: The court has authority to
express disapproval of certain acts even if
judgment is for acquittal.
Exception: The court is not permitted to
censure the accused in a judgment for acquittal
– no matter how light, a censure is still a
punishment.
3. Promulgation of Judgment;
Instances of Promulgation of
Judgment in Absentia
IN GENERAL
Promulgation of judgment is an official
proclamation or announcement of the decision
of the court [Pascua v. Court of Appeals, G.R.
No. 140243 (2000), citing Jacinto, Sr. 521,
Commentaries and Jurisprudence on the
Revised Rules of Court [Criminal Procedure],
1994 Ed.]
Requisites
a. There must be a court legally organized or
constituted; and there must be a judge, or
judges, legally appointed or elected and
actually acting, either de jure or de facto
[Luna v. Rodriguez, G.R. No. 12647
(1917)]
b. Said judgment must be duly signed and
promulgated during the incumbency of the
judge who penned it [Payumo v.
Sandiganbayan, G.R. No. 151911 (2011)]
c. The judgment is promulgated by reading it
in the presence of the accused and any
judge of the court in which it was rendered
[Sec. 6, Rule 120]
Failure to promulgate
Where there is no promulgation of judgment,
no right to appeal accrues. Merely reading the
dispositive portion of the decision is not
sufficient [Pascua v. CA, G.R. No. 140243
(2000)]
U.P. LAW BOC CRIMINAL PROCEDURE
Notice for promulgation
The proper clerk of court shall give notice to the
accused personally or through his bondsman
or warden and counsel, requiring him to be
present at the promulgation of the decision. If
the accused was tried in absentia because he
jumped bail or escaped from prison, the notice
to him shall be served at his last known
address [Sec. 6, Rule 120]
PROMULGATION IN CERTAIN
CIRCUMSTANCES
a. When the judge is absent or
outside the province or city
The judgment may be promulgated by the clerk
of court [Sec. 6, Rule 120].
b. Where Presence of Accused Is
Required; Exceptions
General rule: Presence of the accused is
mandatory in the promulgation of judgment.
Exception: If the conviction is for a light
offense, the judgment may be pronounced in
the presence of his counsel or representative
[Sec. 6, Rule 120]
If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the Rules against the judgment and the court
shall order his arrest.
However, within 15 days from promulgation of
judgment, he may surrender and file a motion
for leave of court to avail of these remedies. He
shall state the reasons for his absence. If he
proves his absence was for a justifiable cause,
he shall be allowed to avail of the remedies
within 15 days from notice [Sec. 6, Rule 120;
People v. De Grano, G.R. No. 167710 (2009)]
Effect of failure of the accused to appear at
the scheduled date of promulgation
Promulgation is made by recording the
judgment in the criminal docket and serving a
Page 424 of 525
REMEDIAL LAW
copy at the accused’s last known address or
through counsel [Sec. 6, Rule 120]
c. If the accused is confined or
detained in another province or
city
The judgment may be promulgated by the
executive judge of the RTC having jurisdiction
over the place of confinement or detention
upon request of the court which rendered the
judgment. The court promulgating the
judgment shall have authority to accept the
notice of appeal and to approve the bail bond
pending appeal; provided, that if the decision of
the trial court convicting the accused changed
the nature of the offense from non-bailable to
bailable, the application for bail can only be
filed and resolved by the appellate court [Sec.
6, Rule 120]
d. Promulgation when a judge is
no longer a judge
A judgment promulgated after the judge who
signed the decision has ceased to hold office is
not valid and binding. In like manner, it cannot
be promulgated after the retirement of the
judge [Nazareno v. CA, G.R. No. 111610
(2002)]
4. Instances when Judgment
Becomes Final
Modification of judgment
A judgment of conviction may, upon motion of
the accused, be modified or set aside before
the judgment becomes final or before appeal is
perfected [Sec. 7, Rule 120, Rules of Court]
When does judgment become final
a. After the lapse of the period for perfecting
an appeal;
b. When the sentence has been
partially/totally satisfied or served;
c. The accused has waived in writing his right
to appeal;
d. When the accused has applied for
probation; and
U.P. LAW BOC CRIMINAL PROCEDURE
Note: Appeal and Probation are mutually
exclusive remedies. It is implicit in an
application for probation that there is an
admission of guilt. [Prof. Bautista]
e. Judgment also becomes final when
judgment is an acquittal [People v.
Sandiganbayan, G.R. No. 164577 (2010)]
Exception: where the death penalty is
imposed [Sec. 7, Rule 120]
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors. See Quirino v. PNB [G.R. No. L-
9159 (1957)]
Remedies of the Accused against a
Judgment of Conviction
1. Modification of judgment [Sec. 7, Rule 120]
2. Reopening of proceedings [Sec. 24, Rule
119]
3. Motion for new trial [Sec. 1, Rule 121]
4. Motion for reconsideration [Sec. 1, Rule
120]
5. Appeal from judgment [Rule 122]
L. NEW TRIAL OR
RECONSIDERATION
1. Grounds for New Trial
a. Errors of law or irregularities prejudicial to
the substantial rights of the accused have
been committed during the trial
General rule: Errors of the defense
counsel in the conduct of the trial is neither
an error of law nor an irregularity [Ceniza-
Manantan v. People, G.R. No. 156248
(2007)]
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction
of certain testimony which was not
submitted at the trial under improper or
injudicious advice of incompetent counsel
Page 425 of 525
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of the accused. [Aguilar v. Court of
Appeals, G.R. No. 114282 (1995)]
Irregularities must be with such
seriousness as to affect prejudicially the
substantial rights of the accused. [Sec.
2(a), Rule 121; Tabobo v. People, G.R.
No.220977 (2017)]
b. New and material evidence has been
discovered which the accused could not
with reasonable diligence have discovered
and produced at the trial and which if
introduced and admitted would probably
change the judgment
See Part L.3 of this (Criminal Procedure)
reviewer
[Sec. 2, Rule 121]
2. Grounds for Reconsideration
The court shall grant reconsideration on the
ground of errors of law or fact in the judgment,
which requires no further proceedings [Sec. 3,
Rule 121]
3. Requisites Before a New Trial
May be Granted on Ground of
Newly Discovered Evidence
The evidence
a. Was discovered after the trial
b. Could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence
c. Is material, not merely cumulative/
corroborative/impeaching; and
d. Is of such weight that it would probably
change the judgment if admitted
[Tadeja v. People, G.R. No. 145336 (2013)]
The accused has the burden of proving item (b)
above [US v. Torrente, G.R. No. 1001 (1922)]
The determinative test is the presence of due
or reasonable diligence to locate the thing to be
used as evidence in the trial [Briones v. People,
G.R. No. 156009 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Interest of justice as gauge for introduction goes into the

of new evidence jurisdiction,
In People v. Almendras [G.R. No. 145915 the entire
(2003)], the court ruled that a motion for a new proceeding is
trial may be granted on a ground not void and
specifically provided in the rules, provided that
must be set
it is sought in the interest of justice. In that
aside.
case, the relief of a new trial was granted to a
client who has suffered by reason of his/her Evidence
counsel’s gross mistake and negligence. already
adduced
Form of motion for reconsideration & new shall stand
trial and the
The court
a. Must be in writing newly-
will allow
b. Must state the grounds on which it is based discovered
c. If based on newly-discovered evidence, introduction
Newly- and such
motion must be supported by: of other
discovered other
1. the affidavits of the witnesses by whom such
evidence evidence
such evidence is expected to be given, evidence in
shall be
or the interest
taken and
2. duly authenticated copies of of justice.
documents which are proposed to be considered
introduced in evidence together with
Notice of the motion shall be given to the the evidence
prosecutor already in the
[Sec. 4, Rule 120] record.
[Sec. 6, Rule 121]
4. Effects of Granting a New
Applying the Neypes doctrine in criminal
Trial or Reconsideration cases
The Neypes doctrine allows a fresh period of
In general 15 days within which to file the notice of appeal
a. The original judgment set aside or vacated; in the RTC, counted from receipt of the order
and denying a MNT or MR. Neypes v. CA [G.R. No.
b. A new judgment is rendered accordingly 141534 (2005)] declared that:
[Sec. 6, Rule 121]
“Henceforth, this ‘fresh period rule’ shall also
Other effects of granting new trial or apply to Rule 40 governing appeals from the
reconsideration depending on ground Municipal Trial Courts to the Regional Trial
Action of Courts; Rule 42 on petitions for review from the
Ground Effect
the court Regional Trial Courts to the Court of Appeals;
All Rule 43 on appeals from quasi-judicial
Errors of law proceedings The court agencies to the Court of Appeals and Rule 45
or and evidence will allow governing appeals by certiorari to the Supreme
irregularities affected shall introduction Court.”
committed be set aside of additional
during the and taken evidence in The “fresh period rule” enunciated in Neypes
trial anew. the interest also applies to criminal actions, particularly to
Sec. 6 of Rule 122 [Yu v. Tatad, G.R. No.
If error or of justice.
170979 (2011)
irregularity

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

M. APPEAL

1. Effect of an Appeal
An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of
the appellate court to correct an error as may be found in the appealed judgment WON it is made the
subject of assignment of errors [People v. Calayca, G.R. No. 121212 (1999)]

2. Where to Appeal
For cases decided by Appeal to
Regional Trial Court
MTC/MeTC/MCTC
[Sec. 2(a), Rule 122]
Court of Appeals or Supreme Court (in proper
RTC cases provided by law)
[Sec. 2(a), Rule 122]
RTC or MTC/MeTC/ MCTC (if it is government
Sandiganbayan
duty-related, i.e., filed under E.O. 1, 2, 4 and 14-
[Sec. 4 (c) PD 1606 as amended by RA 8249]
A)
Supreme Court
Court of Appeals
[Sec. 2(a), Rule 122]

3. How Appeal Taken

The right to appeal is not a natural right nor a part of due process but merely a statutory privilege and
may be exercised only in the manner and in accordance with the provisions of the law [Estarija v.
People, G.R. No. 173990 (2009)]

Period to File
Decided by Appeal to Mode
Appeal
RTC (1) Filing of notice Within 15 days from
MTC/MeTC/MCTC
[Sec. 3(a), Rule 122] of appeal with the (a) promulgation of
Court of Appeals court which the judgment, or (b)
[Sec. 3(a), Rule 122] rendered the order from notice of the
RTC (original appealed from, and final order appealed
jurisdiction) (2) serving a copy from.
thereof to the
adverse party The period to appeal
RTC (appellate Court of Appeals Petition for review shall be suspended
jurisdiction) [Sec. 3(b), Rule 122] (Rule 42) from the time a MNT
RTC (where penalty Court of Appeals (1) Filing of notice or MR is filed until
imposed is [Sec. 3(c), Rule 122] of appeal with the notice of the order
(a) reclusion court which overruling the
perpetua, (b) life motion has been

Page 427 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

imprisonment, or (c) rendered the order served upon the

where a lesser appealed from, and accused or his
penalty is imposed (2) serving a copy counsel.
but for offenses thereof to the
committed on the adverse party [Sec. 6, Rule 122]
same occasion or
which arose out of
the same
occurrence that
gave rise to the more
serious offense

RTC (where penalty Court of Appeals Automatic Review Automatic Review;

imposed is death [Sec. 3(d), Rule 122] as provided in Sec. hence, no period to
penalty) 10, Rule 122 file appeal

Note: R.A. 9346 now

prohibits the
imposition of the
death penalty
Supreme Court Petition for review Within 15 days from
[Sec. 3(e), Rule 122] on Certiorari [Rule notice of
45] judgment/final
order/denial of
Court of Appeals
Note: Should only motion for new trial
(where penalty is
raise questions of or motion for
not the Death
law and should raise reconsideration.
Penalty, reclusion
the errors of the CA
perpetua, or life
(not the RTC’s) An extension of 30
imprisonment)
[Batistis v. People, days may be
G.R. No. 181571 granted, subject to
(2009)] the court’s discretion
[Sec. 2, Rule 45].
Court of Appeals Supreme Court Filing of Notice of Automatic review
(where penalty is the [Sec. 13(c), Rule 122] Appeal with the
Death Penalty, Court of Appeals
reclusion perpetua,
or life imprisonment
All other appeals to the SC Petition for review
on certiorari [Rule
45

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Who may appeal shall file seven (7) copies of his brief with the
clerk of court which shall be accompanied by
General rule: Any party may appeal from a proof of service of two (2) copies thereof
judgment or final order [Sec. 1, Rule 122] upon the appellee [Sec. 3, Rule 124]
↓
Exceptions:
Brief for the appellee
a. A party may not appeal if the accused will
Within thirty (30) days from receipt of the
be placed in double jeopardy by such
brief of the appellant, the appellee shall file
action [Sec. 1, Rule 122];
seven (7) copies of the brief of the appellee
b. If the judgment is for conviction and the
with the clerk of court which shall be
accused fails to appear during
accompanied by proof of service of two (2)
promulgation without justifiable cause, he
copies thereof upon the appellant [Sec. 4,
would lose the remedy to appeal [Sec. 6,
Rule 124]
Rule 120]
↓
a. Procedure in the lower courts Reply to appellee’s brief
(MeTC/MTC/MCTC and RTC) Within twenty (20) days from receipt of the
Brief of the appellee, the appellant may file
General rule: The procedure to be observed in a reply brief traversing matters raised in the
the MeTC/MTC/MCTC shall be the same as former but not covered in the brief of the
that in the RTC. appellant [Sec. 4, Rule 124]

Exceptions: With the use of the word “may”, filing a reply

1. Where a particular provision applies only to is optional.
either of said courts;
2. Criminal cases governed by the Revised Extension of time for filing briefs
Rules on Summary Procedure
[Sec. 1, Rule 123] General rule: Extension of time for the filing of
briefs is not allowed.
b. Procedure in the Court of
Appeals Exception: Extension may be granted for good
and sufficient cause and only if the motion for
extension is filed before the expiration of the
(1) PARTIES AND TITLE
time sought to be extended [Sec. 5, Rule 124].
In all criminal cases appealed to the CA, the
The court may grant as many extensions as
party appealing shall be called the “appellant”
and the adverse party the “appellee” but the may be asked [Gregorio v. CA, G.R. No. L-
43511 (1976)]
title of the case shall remain as it was in the
court of origin (i.e., People v. John Doe) [Sec.
(3) DISMISSAL OF APPEAL FOR
1, Rule 124]
ABANDONMENT OR FAILURE TO
PROSECUTE; GROUNDS
(2) BRIEFS
(a) Appellant fails to file his brief within the
Brief for the appellant
prescribed time
Within thirty (30) days from receipt by the
The CA may, upon motion of the appellee or
appellant or his counsel of the notice from
motu proprio and with notice to the appellant in
the clerk of court of the Court of Appeals that
either case, dismiss the appeal if the appellant
the evidence, oral and documentary, is
fails to file his brief with the time prescribed,
already attached to the record, the appellant

Page 429 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
except where the appellant is represented by
a counsel de oficio [Sec. 8, Rule 124]
If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal
should not be dismissed [Baradi v. People,
G.R. No. L-2658 (1948)]
However, dismissal is proper despite lack of
notice:
1. If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason
[Baradi v. People, G.R. No. L-2658 (1948)]
2. If the appeal was dismissed without notice
but appellant took no steps to have the
appeal reinstated. Such action amounts to
abandonment [Salvador v. Reyes, G.R.
No. L-2606 (1949)]
(b) Appellant escapes, jumps bail, or flees
The CA may also, upon motion of the appellee
or motu proprio, dismiss the appeal if the
appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal [Sec. 8, Rule 124]
Likewise, when accused flees after the case
has been submitted for decision, he is deemed
to have waived his right to appeal [People v.
Ang Gioc, G.R. No. L-48547 (1941)]
However, the appeal will not be dismissed
despite escape
1. In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured two hours
after, the SC ruled that these
circumstances were not sufficient to justify
dismissal of the appeal which, upon the
conclusion arrived at by the Court on the
merits, would entail a clear miscarriage of
justice [People v. Valencia, G.R. No. L-
1369 (1949)]
Page 430 of 525
REMEDIAL LAW
2. In case of automatic review [People v.
Cornelio, G.R. No. L-1289 (1971)]
(4) PROMPT DISPOSITION OF APPEAL
Appeals of accused who are under detention
shall be given precedence in their disposition
over other appeals. The Court of Appeals shall
hear and decide the appeal at the earliest
practicable time with due regard to the rights of
the parties. The accused need not be present
in court during the hearing of the appeal [Sec.
9, Rule 124]
(5) REVERSAL OR MODIFICATION OF
JUDGMENT ON APPEAL
General rule: No judgment shall be reversed
or modified.
Exception: When the CA, after an examination
of the record and of the parties’ evidence, is of
the opinion that error was committed and such
error injuriously affected the appellant’s
substantial rights
[Sec. 10, Rule 124]
When it involves credibility of witnesses,
appellate courts will not generally disturb the
TC’s findings [People v. Cabiling, G.R. No. L-
38091 (1976)]
Ratio: The TC is in a better position to decide
the question, having seen and heard the
witnesses themselves [People v. Cabiling,
G.R. No. L-38091 (1976)]
(6) SCOPE OF THE CA’S JUDGMENT
The CA may:
1. Reverse/affirm/modify the judgment;
2. Increase/reduce the penalty imposed by
the TC;
3. Remand the case to the RTC for new trial
or retrial;
4. Dismiss the case [Sec. 11, Rule 124]
(7) CA’S POWER TO RECEIVE EVIDENCE
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The CA has power to try cases and conduct 2. The motion shall conform to Sec. 4, Rule
hearings, receive evidence and perform any 121 [Sec. 14, Rule 124];
and all acts necessary to resolve factual issues 3. If the CA grants a MNT, it may either:
in cases: a. Conduct the hearing and receive
1. Falling within its original jurisdiction; evidence;
2. Involving claims for damages arising from b. Refer the trial to the court of origin
provisional remedies; [Sec. 15, Rule 124]
3. Where the court grants a new trial based
only on the ground of newly-discovered
evidence
[Sec. 12, Rule 124] Motion For New Trial
RTC [Rule 121] CA [Rule 124]
CA’s trials and hearings must be continuous Grounds
and completed within three months, unless a. Errors of law or a. Newly-
extended by the Chief Justice. [Sec. 9, BP 129 irregularities discovered
as amended by RA 7902] prejudicial to the evidence
substantial rights material to his
(8) POST-CA JUDGMENT of the accused defense
have been
Certification or appeal of cases to the SC committed
Whenever the CA finds that the penalty of during the trial;
death, reclusion perpetua, or life imprisonment b. New and
should be imposed in a case, the court, after material
discussion of the evidence and the law evidence has
involved, shall render judgment imposing the been discovered
penalty of death, reclusion perpetua, or life
When Filed
imprisonment as the circumstances warrant.
Filed after Filed after appeal
However, it shall refrain from entering the
judgment and forthwith certify the case and judgment, but from lower court is
elevate the entire record thereof to the before finality of perfected but before
Supreme Court for review [Sec. 13, Rule 124] conviction judgment
Case remanded?
Judgment transmitted and filed in the TC CA can either
When the CA’s entry of judgment is issued, a No. Cannot remand conduct the
certified true copy of the judgment shall be to lower court in its evidentiary hearing
attached to the original record. These shall be exercise of appellate by itself, or it will
remanded to the clerk of the court from which jurisdiction remand the case to
the appeal was taken [Sec. 17, Rule 124]
the court of origin
Motion for New Trial during the pendency of
Reconsideration of CA judgment
appeal
MFR may be filed within 15 days from notice of
1. Appellant may file MNT on the ground of
the CA judgment or final order, with copies
newly discovered evidence material to his
served on the adverse party, setting forth the
defense any time:
grounds in support thereof. The mittimus shall
a. After the appeal from the lower court
be stayed during the MFR’s pendency [Sec.
has been perfected; but
16, Rule 124]
b. Before the CA judgment convicting him
becomes final;

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Note: This is not available to the State in case
the CA reverses the conviction of the accused
since double jeopardy shall have attached.
[Villareal v. Aliga, G.R. No. 166995 (2014)]
General rule: No party shall be allowed a
second MFR of a judgment or final order [Sec.
16, Rule 124; Sec. 11, BP 129]
in the judgment appealed from, whether or not
they were assigned as errors [People v.
Olfindo, G.R. No. L-22679 (1924)]
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed [Macali v. Revilla, G.R. No. L-
25308 (1926)]

Exception: Where the first MFR resulted in a It may also assess and award civil indemnity
reversal or substantial modification of the [Quemuel v. CA, G.R. No. L-22794 (1946)]
original decision or final resolution. In this case,
the party adversely affected by the Modes by which a case may reach the SC
reversal/modification may himself file a MFR of Automa Ordinary Petition for
the latest judgment of the court, because with tic appeal Review on
respect to him, said motion is a first pleading of review Certiorari
that nature Automati It is available It is available
c review when: when
Note: Again, this is not available to the State if
is not a a. In cases a. The
the first MFR resulted in setting aside of
matter of where the constitution
judgment of conviction. [Villareal v. Aliga, G.R.
No. 166995 (2014)] right on CA ality or
the part imposes validity of
Applicable Civil Procedure Rules of the reclusion any treaty,
Provisions of Rules 42, 44-46 and 48-56 accused, perpetua, executive
relating to procedure in the CA and the SC in but a life agreement,
original and appealed civil cases, shall be matter of imprisonme law,
applied to criminal cases insofar as they are law. nt or a ordinance
applicable and not inconsistent with the lesser or executive
provision of this Rule [Sec. 18, Rule 124] It is penalty, it order or
available shall render regulation is
c. Procedure in the Supreme when the and enter in question
Court RTC judgment [Sec.
decision imposing 5(2)(a), Art.
Uniform procedure is such VIII, 1987
appeale penalty. Constitution
General rule: The procedure in the SC in
d to CA The ]
original and in appealed cases shall be the
same as in the CA. and the judgment b. When
latter is may be validity of
Exception: The Constitution or law otherwise of the appealed to law is
provides. opinion the SC by questioned
[Sec. 1, Rule 125] that the notice of by an
penalty appeal with accused
What the SC may do on review imposed the CA. convicted
In a criminal case, an appeal to the SC throws should [Sec. 13 (c), under it by
open the whole case for review and it becomes be Rule 124] the TC, the
its duty to correct such errors as may be found death. SC cannot

Page 432 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

CA b. The penalty review the review commissio 2487

judgmen of reclusion evidence or [Sec. n of the (1904)]
t is perpetua or pass upon 13(a), offense or c. When the
imposed death is any other Rule due to the jurisdiction
but no imposed on question of 124] presence of of any
entry of some of the law which modifying inferior
judgmen defendants may appear circumstan court is in
t is and a on the ces, in issue
made; lesser record, but which case d. When only
instead, penalty on will only the decision an error or
the case the other confine on the non- question of
is co- itself to the life convicts law is
certified defendants, question of is directly involved
and the on account the appealable [Sec. 6(a),
entire of their in/validity of to the SC Rule 45]
record is varying that law [People v.
elevated degree of [Trinidad v. Carino
to the SC participatio Sweeney, (2002)]
for n in the G.R. No.

Effect of erroneous mode of appeal 4. Effect of Appeal by Any of

In the case of People v. Resuello [GR No. L-
30165 (1969)], the contention of the adverse
party that the ordinary appeal filed by appellant
be dismissed because the proper remedy is
petition for review on certiorari (only questions
of law were involved) was rejected. The SC
said that in cases similarly situated, and as long
as the steps formally required for the perfection
of an appeal were taken in due time, appeal
may be given due course, without prejudice to
requiring the appellant to file the necessary
petition for review on certiorari which is also a
form of appeal.
Decision if opinion is equally divided
When the Supreme Court en banc is equally
divided in opinion or the necessary majority
cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon and if no decision is reached after re-
deliberation, the judgment of conviction of the
lower court shall be reversed and the accused
acquitted [Sec. 3, Rule 125]
Several Accused
General rule:
a. An appeal taken by one or more of several
accused shall not affect those who did not
appeal.
b. The appeal of the offended part from the
civil aspect shall not affect the criminal
aspect of the judgment or order appealed
from
c. Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party
[Sec. 11, Rule 122]
Effect of appeal by any of several accused
An appeal taken by one or more of several
accused shall not affect those who did not
appeal, except, insofar as the judgment of the
appellate court is favorable and applicable to
the latter. [People v. Valdez, G.R. No. 175602
(2013)]

Page 433 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
5. Grounds for Dismissal of
Appeal
When appeal by the people will not lie
The People/State cannot appeal when it will
put the accused in double jeopardy. The
constitutional mandate against double
jeopardy prohibits not only a subsequent
prosecution in a new and independent cause
but extends also to appeal in the same case by
the prosecution after jeopardy had attached
[Republic v. CA, G.R. No. L- 41115 (1982)]
Rationale
A verdict of that nature is immediately final and
to try on the merits, even in an appellate court,
places the accused in double jeopardy [Central
Bank v. CA, G.R. No. 41859 (1989)]
Dismissal of case upon filing of demurrer by
the accused was held to be final even though
based on erroneous interpretation of the law.
Hence, an appeal therefrom by the prosecution
would constitute double jeopardy [People v.
Sandiganbayan, G.R. No. 174504 (2011),
citing People v. Nieto, 103 Phil. 1133]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable [People v. Duran, G.R. No. L-
13334 (1960)]
N. SEARCH AND
SEIZURE
1. Nature of Search Warrant
Nature
It is an order in writing; issued in the name of
the People of the Philippines; signed by a
judge; and directed to a peace officer,
commanding him to search for personal
property described in the warrant and bring it
before the court [Sec. 1, Rule 126]
Page 434 of 525
REMEDIAL LAW
A search warrant is not a criminal action nor
does it represent a commencement of a
criminal prosecution even if it is entitled like a
criminal action. It is not a proceeding against a
person but is solely for the discovery and to get
possession of personal property. [Worldwide
Web Corporation v. People, G.R. No. 161106
(2014)]
Constitutional safeguard
No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce,
and particularly describing the place to be
searched, and the things/persons to be seized
[Sec. 2, Art. III, Constitution]
Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for
any purpose in any proceeding [Sec. 3, 2nd
par., Art. III, Constitution]
As a rule, the Constitution mandates that a
search and seizure must be carried out through
or on the strength of a judicial warrant
predicated upon the existence of probable
cause. [Comerciante v. people, G.R. No.
205926 (2015)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Directed upon acts of the government, not Exceptions:

private persons a. Search incidental to a lawful arrest;
The constitutional protection is directed against b. Consented search;
the acts of the government and its agents, not c. Search of moving vehicle;
private persons [People v. Marti, G.R. No. d. Checkpoints;
81561 (1991)] e. Plain view;
f. Stop and frisk;
General rule: Search of property is g. Customs search;
unreasonable unless it has been authorized by h. Other exceptions, such as exigent
a valid search warrant. circumstance

2. Distinguish From Warrant of Arrest

Search warrant
Order in writing issued in the name of
the People of the Philippines, signed
Nature and by the judge and directed to the peace
purpose officer to search personal property
described therein and to bring it to
court [Sec. 1, Rule 126]
The judge must personally examine in
the form of searching questions and
answers, under oath, the complainant
Determination
and witnesses he may produce on
of Probable
facts personally known to them and
cause
attach to the record their sworn
statements, together with the affidavits
submitted [Sec. 5, Rule 126]
It must particularly describe the place
to be searched and the things to be
Form seized [Sec. 2, Art. III, Constitution],
which may be anywhere in the
Philippines [Sec. 4, Rule 126]
The warrant must direct that it be
served in the day time, unless the
When affidavit asserts that the property is on
executed the person or in the place ordered to be
searched, in which case a direction
may be inserted that it be served at any
Warrant of arrest
Order directed to the peace officer to
execute the warrant by taking the
person stated therein into custody that
he may be bound to answer for the
commission of the offense
Sec. 2, Art. III of the Constitution does
not mandatorily require the judge to
personally examine the complainant
and her witnesses. Instead, he may opt
to personally evaluate the report and
supporting documents submitted by
the prosecutor or he may disregard the
prosecutor’s report and require the
submission of supporting affidavits of
witnesses [People v. Grey,, G.R. No.
180109 (2010), citing Soliven v.
Makasiar, G.R. No. L-82585 (1988)]
It must particularly describe the person
to be arrested [Sec. 2, Art. III,
Constitution]
No such limitation under Sec. 2, Art. III,
Constitution and Rule 113

Page 435 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
time of the day or night [Sec. 9, Rule
126]
Valid for 10 days from its date [Sec. 10,
Rule 126]
Validity The lifetime of the search warrant also
ends when a return has already been
made [Mustang Lumber v. CA, G.R.
No. 104988 (1996)]
3. Application for Search
Warrant; Where Filed
General rule: It may be filed in any court within
whose territorial jurisdiction the crime was
committed.
Exception: For compelling reasons, which
must be stated in the application, it may also be
filed:
a. If the place of the commission of the crime
is known, any court within the judicial
region where the crime was committed
b. Any court within the judicial region where
the warrant shall be enforced
However, if the criminal action has already
been filed, the application shall only be made
in the court where the criminal action is pending
[Sec. 2, Rule 126]
Under A.M. No. 03-8-02-SC, Executive Judges
and, whenever they are on official leave of
absence or are not physically present in the
station, the Vice-Executive Judges of Manila
and Quezon City RTCs shall have authority to
act on applications for search warrants
involving
a. Heinous crimes
b. Illegal gambling
c. Illegal possession of firearms and
ammunitions
d. Violations of the Comprehensive
Dangerous Drugs Act of 2000
e. Violations of the Intellectual Property Code
Page 436 of 525
REMEDIAL LAW
Does not expire
The 10-day period referred to in Sec. 4,
Rule 113 refers to the time within which
the head of the office to whom the
warrant of arrest was delivered for
execution shall cause the warrant to be
executed.
f. Violations of the Anti-Money Laundering
Act of 2001
g. Violations of the Tariff and Customs Code,
and
h. Other relevant laws that may hereafter be
enacted by Congress and included herein
by the Supreme Court.
Issuance and form of search warrant
If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they
exist, he shall issue the warrant, which must be
substantially in the form prescribed the Rules
[Sec. 6, Rule 126]
Thus, the search warrant must be in writing and
contain
a. Name of person against whom it is directed
b. Offense for which it was issued
c. The place to be searched, and
d. The description of the specific things to be
seized
e. A directive to law enforcement officers to
search and seize and for them to bring in
court the things seized
f. Signature of the judge issuing it
The absence of such requisites will cause the
search warrant’s downright nullification [Santos
v. Pryce Gases, Inc., G.R. No. 165122 (2007)]
U.P. LAW BOC CRIMINAL PROCEDURE
4. Probable Cause for Issuance
of Search Warrant
Probable cause means the existence of such
facts and circumstances which would lead a
reasonably discreet and prudent man to
believe that an offense has been committed,
and that objects sought in connection with
the offense are in the place sought to be
searched [People v. Breis., G.R. No. 205823
(2015)]
This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay. The probable
cause must refer only to one specific offense
[Roan v. Gonzales, G.R. No. 71410 (1986)]
Note: Probable cause to arrest does not
necessarily involve a probable cause to search
and vice-versa.
5. Personal Examination by
Judge of the Applicant and
Witnesses
The Rules require the judge to comply with a
specific procedure in the conduct of the
examination of the complainant and the
witnesses he may produce
a. The examination must be personally
conducted by the judge;
b. The examination must be in the form of
searching questions and answers;
c. The complainant and the witnesses shall
be examined on those facts personally
known to them;
d. The statements must be in writing and
under oath; and
e. The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to
the record.
[Sec. 5, Rule 126]
Page 437 of 525
REMEDIAL LAW
Searching questions and answers
Searching questions are such questions which
have the tendency to show the commission of
a crime and the perpetrator thereof [Luna v.
Plaza, G.R. No. 27511 (1968)]
In search cases, the application must be
supported by substantial evidence
a. That the items sought are in fact seizable
by virtue of being connected with criminal
activity; and
b. That the items will be found in the place to
be searched
[People v. Tuan, G.R. No. 176066 (2010)]
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR,
G.R. No. 129651 (2000)]
Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application [Yao v. People,
G.R. No. 168306 (2007)]
Examination under oath
The judge must examine under oath or
affirmation the complainant and the witness he
may produce [Sec. 2, Art. III, Constitution]
Oath includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
[Alvarez v. CFI, G.R. No. 45358 (1937)]
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
complaint or his witnesses, and attach the
same to the record [Prudente v. Judge Dayrit,
G.R. No. 82870 (1989)]
U.P. LAW BOC CRIMINAL PROCEDURE
6. Particularity of Place to Be
Searched and Things to Be
Seized
Warrant issued must particularly describe the
place to be searched and the things to be
seized [Sec. 2, Art. III, Constitution]
Particularity of place to be searched
Description of the place to be searched is
sufficient if the officer with the search warrant
can, with reasonable efforts, ascertain and
identify the place intended [People v. Veloso,
G.R. No. L-23051 (1925)]
The search warrant does not require the name
of the person who occupies the described
premises. The search warrant is issued for the
search of specifically described premises only
and not for the search of a person [Quelnan v.
People, G.R. No. 166061 (2007)]
7. Personal Property to be
Seized
What may be seized
a. Personal property subject of the offense;
b. Personal property stolen/embezzled and
other proceeds/fruits of the offense;
c. Personal property used or intended to be
used as the means of committing an
offense
[Sec. 3, Rule 126]
The scope of the search warrant is limited to
personal property. It does not issue for seizure
of immovable properties [see Sec. 3, Rule 126]
General rule: Things to be seized must be
described particularly. General search
warrants are not allowed. [Sec. 2, Art. III,
Constitution]
A general warrant is defined as "a search or
arrest warrant that is not particular as to the
person to be arrested or the property to be
seized." It is one that allows the "seizure of one
Page 438 of 525
REMEDIAL LAW
thing under a warrant describing another" and
gives the officer executing the warrant the
discretion over which items to take [Worldwide
Web Corporation v. People, G.R. No. 161106
(2014)]
Where the language used is too all-embracing
as to include all the paraphernalia of petitioner
in the operation of its business, the SW is
constitutionally objectionable [Columbia
Pictures v. Flores, G.R. No. 78631 (1993)]
Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is not
required that a technical description be given,
for this would mean that no search warrant
could issue [People v. Rubio, G.R. No. L-35500
(1932)]
The general description of the documents
listed in the search warrant does not render it
void if it is severable, and those items not
particularly described may be cut off without
destroying the whole [Uy v. BIR, G.R. No.
129651 (2000)]
The rule does not require that the property to
be seized should be owned by the person
against whom the search warrant is directed. It
is sufficient that the person against whom the
warrant is directed has control of possession of
the property sought to be seized [Burgos v.
Chief of Staff, G.R. No. L-64261 (1984)
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

8. Exceptions to the Search Warrant Requirement

a. Search Incidental to Lawful Arrest
b. Consented Search
c. Search of a Moving Vehicle
d. Checkpoints; Body Checks in Airport
e. Plain View
f. Stop and Frisk
g. Enforcement of Customs Law
h. Other Exceptions
1. Exigent and Emergency Circumstances
2. Buy-Bust Operation
3. Private Searches

Items (1) to (3), (5) to (7) and (8)(a) are enumerated in Veridiano v. People [G.R. No. 200370 (2017)]
The other items are sanctioned by the SC in other cases. See the discussion below.

Requisites
Search Even without a warrant, the person arrested
Incidental to may be searched for:
Lawful Arrest 1. Dangerous weapons
2. Anything which may have been used in
the commission of an offense, or
3. Anything which may constitute proof in the
commission of the offense [Sec. 13, Rule
126]
The arrest must precede the search;
generally, the process cannot be reversed.
Nevertheless, a search substantially
contemporaneous with an arrest can precede
the arrest if the police have probable cause to
make the arrest at the outset of the search [Sy
v. People, G.R. No. 182178 (2011) citing
People v. Racho (erroneously referred to as
Rancho), G.R. No. 186529 (2010)]
Notes
When an arrest is made, it is
reasonable for the arresting officer to
search the person arrested in order to
remove any weapon that the latter
might use in order to resist arrest or
effect his escape. Otherwise, the
officer’s safety might well be
endangered, and the arrest itself
frustrated.
In addition, it is entirely reasonable for
the arresting officer to search for and
seize any evidence on the arrestee’s
person in order to prevent its
concealment or destruction [People v.
Calantiao, G.R. No. 203984 (2014),
citing Valeroso v. CA, G.R. No.
164815 (2009)]

The rule assumes that the arrest is legal. If the

arrest is illegal, then the search is illegal and
as a result, the things seized are inadmissible
as evidence [People v. Aruta, G.R. No.
120195 (1998)]

Where a search is first undertaken, and an

arrest was effected based on evidence
produced by such search, both search and
arrest are illegal [Lui v. Matillano, G.R. No.
141176 (2004)]

Page 439 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Jurisprudence requires that in case of
consented searches or waiver of the
constitutional guarantee against obtrusive
searches, it must first appear that:
1. The right exists;
2. The person involved had knowledge,
either actual or constructive, of the
existence of such right; and
3. The said person had an actual intention to
relinquish the right.
[People v. Nuevas, G.R. No. 170233 (2007)]
Consent to a search is not to be lightly
inferred, but must be shown by clear and
convincing evidence. It is the State which has
the burden of proving, by clear and positive
testimony, that the necessary consent was
obtained and that it was freely and voluntarily
given [Valdez v. People, G.R. No. 170180
(2007)]
Search of a When a vehicle is stopped and subjected to an
Moving extensive search, such a warrantless search
Vehicle should be constitutionally permissible only if
Consented the officers conducting the search have
Search reasonable or probable cause to believe,
before the search, that either:
1. the motorist is a law-offender; or
2. they will find the instrumentality or
evidence pertaining to a crime in the
vehicle to be searched
[Caballes v. CA, G.R. No. 136292 (2002)]
Page 440 of 525
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Relevant to the determination of
consent are the following
characteristics of the person giving
consent and the environment in which
consent is given:
1. The age of the defendant;
2. Whether he was in a public or
secluded location;
3. Whether he objected to the
search or passively looked on;
4. The education and intelligence of
the defendant;
5. The presence of coercive police
procedures;
6. The defendant's belief that no
incriminating evidence will be
found;
7. The nature of the police
questioning;
8. The environment in which the
questioning took place; and
9. The possibly vulnerable
subjective state of the person
consenting.
[Caballes v. CA, G.R. No. 136292
(2002)]
Peace officers may lawfully conduct
searches of moving vehicles without
need of a warrant as it is impracticable
to secure a judicial warrant before
searching a vehicle since it can be
quickly moved out of the locality or
jurisdiction in which the warrant may
be sought [People v. Tuazon, G.R.
No. 175783 (2007)]
However, these searches would be
limited to visual inspection and the
vehicles or their occupants cannot be
subjected to physical or body
searches, except where there is
probable cause to believe that the
occupant is a law offender or the
contents of the vehicles are
instruments or proceeds of some
criminal offense.
to privacy
U.P. LAW BOC CRIMINAL PROCEDURE
Checkpoints; Searches conducted in checkpoints are valid
Body Checks as long as they are warranted by the
in Airport exigencies of public order and conducted in a
way least intrusive to motorists.
Although the general rule is that motorists and
their vehicles as well as pedestrians passing
through checkpoints may only be subjected to
a routine inspection, vehicles may be stopped
and extensively searched when there is
probable cause which justifies a reasonable
belief of the men at the checkpoints that either
the motorist is a law offender or the contents
of the vehicle are or have been instruments of
some offense [People v. Vinecario, G.R. No.
141137 (2004)]
Plain View 1. Police must have prior justification to a
Situation prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties
2. Evidence was inadvertently discovered by
the police who have a right to be where
they are
3. Evidence must be immediately and
apparently illegal (i.e., drug
paraphernalia)
4. Plain view justified mere seizure of
evidence without further search
[People v. Martinez, G.R. No. 191366 (2010)]
Stop and Stop and frisk is a limited protective search of
Frisk outer clothing for weapons [Malacat v. CA,
Situation G.R. No. 123595 (1997)]
Where a police officer observes unusual
conduct, which leads him reasonably to
Page 441 of 525
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Routine inspections are not regarded
as violative of an individual’s right
against unreasonable search
1. Where the officer merely draws
aside the curtain of a vacant
vehicle which is parked on the
public fair grounds
2. Officer simply looks into a vehicle
3. Officer flashes a light therein
without opening car’s doors
4. Occupants not subjected to a
physical search
5. Inspection is limited to visual
search or visual inspection, or
6. Routine check is conducted in a
fixed area
[Caballes v. CA, G.R. No. 136292
(2002)]
Limitations
1. It may not be used to launch
unbridled searches and
indiscriminate seizures
2. It does not extend to a general
exploratory search made solely to
find evidence of defendant’s guilt
[People v. Musa, G.R. No. 96177
(1993)]
Rationale
The doctrine is a recognition of the
fact that when the police come across
immediately recognizable
incriminating evidence not named in
the warrant, they should not be
required to close their eyes to it,
regardless of whether it is evidence of
the crime they are investigating or
evidence of some other crime. The
doctrine is also a recognition of the
fact that it would be needless
inconvenience to require the police to
obtain another warrant [US v. Gray,
484 F.2d 352 (6th Cir., 1978)]
Dual purpose of stop-and-frisk
1. The general interest of effective
crime prevention and detection
and
2. The more pressing interest of
safety and self-preservation
U.P. LAW BOC CRIMINAL PROCEDURE
conclude in the light of his experience that
criminal activity may be afoot, and that a
person with whom he is dealing may be armed
and presently dangerous, he is entitled to
conduct a stop and frisk search.
Enforcement For the enforcement of customs duties and
of Customs tariff laws, the Collector of Customs is
Law authorized to effect searches and seizure
[General Travel Services v. David, G.R. No. L-
19259 (1966)]
The Customs Modernization and Tariff Act
(CMTA) authorizes customs officers to:
1. Enter, pass through or search any land,
enclosure, warehouse [Sec. 219, CMTA]
2. Inspect/search/examine any vessel or
aircraft and any
trunk/package/box/envelope or any
person on board, or stop and examine any
vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited
article introduced into the Philippines
contrary to law [Sec. 221, CMTA]
Page 442 of 525
REMEDIAL LAW
which permit the police officer to
take steps to assure himself that
the person with whom he deals is
not armed with a deadly weapon
that could unexpectedly and
fatally be used against the police
officer.
[Malacat v. CA, G.R. No. 123595
(1997)]
Stop and Frisk v. Search Incidental
to Lawful Arrest
The latter happens when one is
caught in flagrante delicto, the former
is done in order to prevent a crime
from occurring [People v. Cogaed,
G.R. No. 200334 (2015)]
General rule: The CMTA does not
require a warrant for such searches
Exception: In the search of a dwelling
house, a search warrant is required
[Sec. 220, CMTA]
Note: RTCs are devoid of any
competence to pass upon the validity
or regularity of seizure and forfeiture
proceedings conducted by the Bureau
of Customs and to enjoin or otherwise
interfere with these proceedings. It is
the Collector of Customs, sitting in
seizure and forfeiture proceedings,
who has exclusive jurisdiction to hear
and determine all questions touching
on the seizure and forfeiture of
dutiable goods [Asian Terminals, Inc.
v. Bautista-Ricafort, G.R. No. 166901
(2006)]
U.P. LAW BOC CRIMINAL PROCEDURE
Other exceptions
Exigent and emergency circumstances
In one case, there was a prevailing general
chaos and disorder because of an ongoing
coup, and the raid of the office/building was
precipitated by an intelligence report that said
office was being used as HQ by the RAM. The
raiding team had no opportunity to apply for
warrant as the court then was closed [People
v. de Gracia, G.R. Nos. 102009-10 (1994)]
9. Remedies From Unlawful
Search And Seizure
Who may avail
Only the party whose rights have been
impaired thereby; the objection to an unlawful
search and seizure is purely personal and
cannot be availed of by third parties [Stonehill
v. Diokno, G.R. No. L-19550 (1967); Santos v.
Pryce Gases Inc., G.R. No. 165122 (2007)]
a. Employ any means to prevent
the search
Without a search warrant, the officer cannot
insist on entering a citizen’s premises. If he
does so, he becomes an ordinary intruder.
The person to be searched may resist the
search and employ any means necessary to
prevent it, without incurring any criminal liability
[People v. Chan Fook, G.R. No. L-16968
(1921)]
b. File criminal action against
officer
A public officer/employee who procures a
search warrant without just cause is criminally
liable under Art. 129, RPC, on search warrants
maliciously obtained and abuse in the service
of those legally obtained.
Page 443 of 525
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c. File a motion to quash the
illegal warrant
This remedy is employed if search is not yet
conducted.
Who may file
1. Person who will potentially be injured;
2. Person to be searched;
3. Owner of the property to be searched.
Where to file
1. Motions to quash a search warrant and/or
to suppress evidence obtained thereby
may be filed in and acted upon only by the
court where the action has been
instituted.
2. If no criminal action has been instituted,
motion may be filed in and resolved by the
court that issued the warrant.
3. If such court failed to resolve the motion,
and a criminal case is subsequently filed in
another court, the motion shall be resolved
by the latter court.
[Sec. 14, Rule 126]
Grounds
A motion to quash a search warrant may be
based on grounds extrinsic of the search
warrant, such as (1) the place searched or the
property seized are not those specified or
described in the search warrant; and (2) there
is no probable cause for the issuance of the
search warrant [Abuan v. People, G.R. No.
168773 (2006)]
Failure to file motion to quash
Where no MTQ the search warrant was filed in
or resolved by the issuing court, the interested
party may move in the court where the criminal
case is pending for the suppression as
evidence of the personal property seized under
the warrant if the same is offered therein for
said purpose. [Malaloan v. CA, G.R. No.
104879 (1994)]
U.P. LAW BOC CRIMINAL PROCEDURE
d. File a motion to return things
seized
The venue where the motion will be filed
follows the same rules as in a motion to quash.
An accused may file a motion to suppress
evidence if he is not among the persons who
can file a motion to quash.
General rule: Goods seized by virtue of an
illegal warrant must be returned.
Exception: The illegality of the search warrant
does not call for the return of the things seized,
the possession of which is prohibited by law
[Castro v. Pabalan, G.R. No. L-28642 (1976)]
e. Motion to suppress evidence
This refers to a motion to suppress as evidence
the objects illegally taken pursuant to the
exclusionary rule, which states that any
evidence obtained through unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding
CIVIL AND CRIMINAL LIABILITY FROM
UNREASONABLE SEARCH AND SEIZURE
The following offenses may result from
unreasonable search and seizure
a. Violation of domicile [Art. 128, RPC]
b. Search warrant maliciously obtained [Art.
129, RPC]
c. Searching domicile without witnesses [Art.
130, RPC]
d. Unjust interlocutory order [Art. 206, RPC]
The public officer or employee may be held
liable for:
a. Entering without authority; against the will;
refuses to leave
b. A search warrant procured without just
cause or if with just cause, exceeds his
authority or uses unnecessary severity of
force
c. Conducting the search without the required
witnesses.
Page 444 of 525
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The judge may be held liable for
a. Knowingly rendering an unjust interlocutory
order [Art. 206, RPC]
b. Inexcusable negligence or ignorance [Art.
205, RPC]
It may also result in civil liability for
a. Violation of rights and liberties [Art. 32(9),
CC]
b. Malicious prosecution and acts referred to
Art. 32 [Art. 2218, CC]
Malice or bad faith is not required.
Not only official actions, but all persons who are
responsible for the violation are liable for
damages [MHP Garments v. CA, G.R. No.
86720 (1994)]
Waiver of immunity against unreasonable
search and seizure
The constitutional immunity against
unreasonable searches and seizure is a
personal right that may be waived
expressly/impliedly only by the person whose
right is being invaded or one who is expressly
authorized to do so in his behalf [Pasion v.
Locsin, G.R. No. L-45950 (1938)]
Requisites
a. It must appear that the right exists
b. The person involved had knowledge
(actual or constructive) of the existence of
such right
c. The person had an actual intention to
relinquish the right
[Pasion v. Locsin, G.R. No. L-45950 (1938)]
10. Cybercrime Warrants
a. Scope and Applicability
The rule provides for the procedure in the
application and grants of warrants and related
orders involving preservation, disclosure,
interception, search, seizure, and/or
examination of computer data.
U.P. LAW BOC CRIMINAL PROCEDURE
b. General Provisions
VENUE FOR FILING A CRIMINAL ACTION
i. Violation of Section 4 (Cybercrime
offenses) and/or Section 5 (Other
offenses) of RA 10175 (Cybercrime
Prevention Act of 2012 hereinafter
“RA 10175”)
General Rule: The criminal action shall be filed
before the designated cybercrime court of the
province or city:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: The court where the criminal action was
first filed shall acquire jurisdiction to the
exclusion of other courts.
ii. All other crimes committed using
Information and Communication
Technology (ICT)
General Rule: The criminal action shall be
filed before the regular or specialized courts
as the case maybe.
VENUE FOR FILING AN APPLICATION FOR
CYBERCRIME WARRANT
iii. Violation of Section 4 and Section
5 of RA 10175
General Rule: Application shall be filed before
the designated cybercrime courts of the
province or the city where:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: Cybercrime courts in Quezon City, City
of Manila, Makati City, Pasig City, Cebu City,
Iloilo City, Davao City, and Cagayan De Oro
Page 445 of 525
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City have the special authority to act on
applications and issue warrants which shall be
enforceable nationwide and outside the
Philippines.
iv. Application for a warrant for
violation of all crimes defined, and
penalized by RPC and other
special laws if committed using
Information Communication
Technology (ICT) shall be filed
with the regular courts or other
specialized RTC in the places:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Effectivity of Warrants
General Rule: Not exceeding 10 days from its
issuance
Exception: The issuing court may, upon
motion, extend its effectivity based only on
justifiable reasons for a period not exceeding
10 from the expiration of the original period.
Contempt
The responsible law enforcement authorities
shall be subject to action for contempt in case:
1. Failure to timely file the return for any of the
issued warrants under this Rule
2. Failure to duly turn-over to the court’s
custody any of the items disclosed
intercepted, searched, seized, and/or
examined
c. Preservation of Computer Data
General Rule: Data should be kept, retained,
and preserved by a service provider for a
minimum period of 6 months from:
1. The date of transaction in the case of traffic
data and subscriber’s information;
2. The date of receipt of order from law
enforcement requiring its preservation in
the case of content data
U.P. LAW BOC CRIMINAL PROCEDURE
Exception:
1. A one-time extension for another 6
months may be ordered
The data is preserved until the final
termination of a case once the data that is
preserved, transmitted or stored by the
service provider is used as evidence in a
case.
The receipt by the service provider of
transmittal of document to the Office of the
Prosecutor shall be deemed a notification
to preserve data until the final termination
of the case.
CYBERCRIME WARRANTS UNDER THIS
RULE
1. Warrant to Disclose Computer Data
(WDCD) [Sec. 4]
2. Warrant to Intercept Data (WICD) [Sec. 5]
3. Warrant to Search, Seize and Examine
Computer Data (WSSECD) [Sec. 6]
4. Warrant to Examine Computer Data
(WECD) [Sec 6.9]
d. Disclosure of Computer Data
Warrant to Disclose Computer Data (WDCD)
It is an order in writing issued in the name of
the People of the Philippines, signed by the
judge, upon application of law enforcement
authorities, 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.
Disclosure of Computer Data
1. The person or service provider must
disclose or submit the subscriber’s
information, traffic data or relevant data in
his/her or its possession or control within
72 hours from receipt of an Order;
2. The Order must be in relation to a
complaint officially docketed and assigned
for investigation; and
3. The disclosure must be necessary and
relevant for the purpose of investigation.
Page 446 of 525
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Contents of Application for WDCD
1. The probable offense involved
2. Relevance and necessity of the computer
data or subscriber’s information sought to
be disclosed for the purpose of
investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information
are sought to be disclosed, including the
names of the individuals of the individuals
or entities who have control, possession, or
access thereto, if available;
4. Particular description of the computer data
or subscriber’s information sought to be
disclosed
5. Place where the disclosure of computer
data or subscriber’s information is to be
enforced, if available;
6. Manner or method by which the disclosure
of the computer data or subscriber’s
information is to be carried out, if available;
and
7. Other relevant information that will
persuade the court that there is a probable
cause to issue a WDCD.
Return on the WDCD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after
the expiration of the effectivity of the WDCD,
whichever comes first, the law enforcement
officer shall:
1. Submit a return on the WDCD to the court
that issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
The officer is allowed to retain a copy of the
copy of the disclosed data or subscriber’s
information subject of the WDCD without the
need of court intervention, provided:
1. It will be utilized for case build-up or
preliminary investigation purposes
2. The details are kept strictly confidential,
and the retained copy shall be labelled as
such
3. The retained copy shall be turned over
upon filing of a criminal action involving the
disclosed computer data or subscriber’s
U.P. LAW BOC CRIMINAL PROCEDURE
information, or upon order of the issuing
court if no criminal action is filed.
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer
to whom the WDCD was issued, and
require him/her to explain why no return
was made, without prejudice to any action
of contempt
e. Interception of Computer Data
Interception refers to [LRMS-DI]:
1. Listening to,
2. Recording,
3. Monitoring, or
4. Surveillance of the content of
communications, including procuring of the
content data:
a. Directly, through access and use of a
computer system, or
b. Indirectly through the use of
electronic eavesdropping or tapping
devices, at the same time that the
communication if occurring.
Warrant Required
Interception may be carried out only by virtue
of a court issued warrant, duly applied for by
law enforcement authorities.
Warrant to Intercept Computer Data (WICD)
It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to carry out
any or all of the activities of interception (see
above).
Contents of Application for WICD
The application shall state the essential facts
similar to WDCD, except that the subject
matter is the communication or computer data
sought to be intercepted. It should state [O-RN-
NDPM]:
1. The probable Offense involved
2. Relevance and Necessity of the computer
data or subscriber’s information sought to
Page 447 of 525
REMEDIAL LAW
be intercepted for the purpose of
investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information
are intercepted, including the names of
the individuals of the individuals or entities
who have control, possession, or access
thereto, if available;
4. Particular Description of the computer data
or subscriber’s information sought to be
intercepted;
5. Place where the disclosure of computer
data or subscriber’s information is to be
enforced, if available;
6. Manner or method by which the disclosure
of the computer data or subscriber’s
information is to be carried out, if available;
and
Return on the WICD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after
the expiration of the effectivity of the WICD,
whichever comes first, the law enforcement
officer shall:
1. Submit a return on the WDCD to the court
that issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer
to whom the WDCD was issued, and
require him/her to explain why no return
was made, without prejudice to any action
of contempt
Notice to Person Intercepted after Filing of
Return Required
Duty of Law Enforcement
The law enforcement officer has the duty to
notify the person whose communication or
computer data have been intercepted of the
activities conducted pursuant to the WICD:
U.P. LAW BOC CRIMINAL PROCEDURE
1. Within 30 days from the filing of the return,
attaching a copy of the return to the notice;
or
2. From the lapse of 48-hour period to file
the return, if no return was filed. The notice
shall state the details of the interception
activities, including the contents of the
intercepted communication or computer
data.
Remedy of the Person Involved
Within 10 days from notice, the person whose
communication or computer data have been
intercepted may challenge, by motion, the
legality of the interception before the issuing
court.
f. Search, Seizure, and
Examination of Computer Data
Warrant to Search, Seize and Examine
Computer Data (WSSECD)
It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to search the
particular place for items to be seized and/or
examined.
Content of Application for a WSSECD
The content shall state the essential fact similar
to WDCD except that the subject matter is the
computer data sought to be searched, seized
and examined, and all other items related
thereto.
Further, it shall contain an explanation of the
search and seizure strategy to be
implemented taking into account the nature of
the computer data involved, the computer or
computer system’s security features, and/or
other relevant circumstances.
Off-site and On-site Principle
General rule: Law enforcement shall endeavor
to first make a forensic image of the computer
data on-site as well as limit their search to the
place specified in the warrant.
Exception: Off-site search may be conducted
provided that a forensic image is made, and
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that the reasons for the off-site search are
stated in the initial return
Remedy of Person whose devices have
been searched and seized off-site
The concerned individual may, upon motion,
seek the return of the said items from the court
issuing the WSSCED provided that a forensic
image of the data subject of the WSSECD has
already been made.
What Activities are Allowed During the
Implementation of the WSSECD
1. Interception of communications and
computer data may be conducted during
the implementation of the WSSECD which
shall:
a. limited to communications and
computer that are reasonably related to
the subject matter of WSSECD; and
b. the activities are fully disclosed which
shall be duly explained in the initial
return.
2. Law enforcement may order any person
who has knowledge of the functioning of
the computer data therein, to provide
necessary information to enable the
undertaking of the search, seizure and
examination
Initial Return of WSSECD
The authorized law enforcement shall submit
within 10 days from issuance of WSSECD an
initial return which contains:
1. A list of all items that were seized, with a
detailed identification of the devices of the
computer system seized;
2. Statement on whether a forensic image of
the computer data was made on-site, and
if not, the reason for making forensic image
off-site;
3. Statement on whether the search was
conducted on-site, and not, the reasons for
conducting the search and seizure off-site;
4. Statement on whether interception was
conducted during the implementation of the
WSSECD, together with (a) a detailed
identification of all the interception activities
that were conducted; (b) the hash value/s
of the communications or computer data
intercepted; and (c) an explanation of the
U.P. LAW BOC CRIMINAL PROCEDURE
said item’ reasonable relation to the
computer data subject of WSSECD;
5. List of all the actions taken to enforce the
WSSECD, from the time the law
enforcement officers reached the place to
be seized until they left the premises with
the seized items and reached the place
where the items seized were stored and
secured for examination; and
6. A reasonable estimation of how long the
examination of the items seized will be
concluded and the justification therefor.
Period to Examine Seized Items After Initial
Return
The Court shall issue an order fixing the period
to conclude the examination of all the items
seized. The period may be extended not
exceeding 30 days, upon motion, for
justifiable reasons.
Final Return on the WSSECD
Within 48-hours after the expiration of the
period to examine seized items after the initial
return, the law enforcement officer shall:
1. Submit a final return in the WSSECD to
the issuing court; and
2. Simultaneously turn-over the custody of
the seized computer data, as well as all
other items seized and/or the
communications or computer data
intercepted in relation thereto.
Warrant to Examine Computer Data (WECD)
It refers to a warrant applied for by law
enforcement authorities before searching a
computer device or computer system (for the
purpose of obtaining for forensic examination
the computer data) which was obtained via a
lawful warrantless arrest or by any other lawful
method.
It is available when:
1. The law enforcement authority acquires
possession of a computer device or
computer system;
2. Through a lawful warrantless arrest, or
other lawful method;
3. The law enforcement authority shall first
apply for WECD before searching for
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forensic examination the computer data
contained therein.
Content of WECD
It shall state the essential facts similar to
WDCD except that the subject matter is the
computer sought to be examined.
The application shall disclose the
circumstances surrounding the lawful
acquisition of the computer device or computer
system containing the said computer data.
Initial and Final Return of WECD
The initial and final return of WECD shall be
similarly governed by the procedures under
WSSECD.
g. Custody of Computer Data
Upon filing of the return for WDCD or WICD,
or the final return for a WSSECD or WECD
with the issuing court, the following are likewise
submitted:
1. All computer data shall be simultaneously
deposited in a sealed package with the
issuing court;
2. A complete and verified inventory of all the
other items seized
3. Affidavit of the duly authorized law
enforcement.
Duty of the Prosecutor When Criminal
Action is Instituted
Within 10 days from the time of the criminal
action is instituted, it is the duty of the
prosecutor, or his/her duly authorized
representatives, once a criminal action is
instituted, to file a motion before the issuing
court to:
1. Move for the immediate transmittal of the
records, and
2. Move for the transfer of the intercepted,
disclosed, searched, seized, and/or
examined computer data and items,
including the complete and verified
inventory thereof to the court
Within 5 days, the court shall act upon the
motion filed.
U.P. LAW BOC CRIMINAL PROCEDURE
Access and Use of Computer Data
General Rule: The package containing the
computer data deposited in the issuing court
shall not
1. be opened, or
2. the recordings replayed, or
3. its contents revealed, or,
4. in any manner as used as evidence
Exception: The court may grant so upon filing
a motion for the purpose stating:
1. the relevance of the computer data sought
to be opened, replayed, revealed, or used
as evidence; and
2. the names of the persons who will be
allowed to have access thereto, if the
motion is granted.
3. Must include proof of service of copies sent
to the person/s whose computer data is
subject of the motion.
Within 10 days from receipt of notice thereof,
the person must file comment thereto. After
which, the court shall rule on the motion, unless
a clarificatory hearing is needed.
h. Destruction of Computer Data
Duty of Service Providers and Law
Enforcement Authorities to Destroy
The service providers and law enforcement
authorities, as the case maybe, shall
immediately and completely destroy the
computer data subject of preservation and
examination upon expiration of the periods
provided in Sec. 13 and 15 of RA 10175.
1. Sec 13: Service providers preserve the
data for a minimum of 6 months, unless a
one-time extension of another 6 months is
ordered by the law enforcement authority,
or in the event that that the data was used
as evidence in which case the data is
preserved until the final termination of the
case.
2. Sec 15: After lapse of the time period
specified in the warrant, unless the court
granted extension of time to complete
examination for no longer than 30 days
(from the time of the court’s approval).
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How Destruction of Computer Data is Made
1. Made in the presence of the Branch Clerk-
of-Court, or in his/her absence, in the
presence of any other person duly
designated by the court to witness the
same
2. The accused or the person from whom the
items were seized, or his/her
representative or counsel, or law
enforcement agency may be allowed to
witness.
Provided, they appear during the
scheduled date of destruction upon written
notice to them by the Branch Clerk of
Court.
3. Within 24 hours from the destruction of
data, the Branch Clerk of Court or the
witness duly designated by court shall
issue a sworn certification as to the fact
of destruction
4. The Branch Clerk of Court shall file the said
certificate with the same court
5. The storage device or other items turned
over to the court’s custody shall be
destroyed by:
a. Shredding
b. Drilling of four holes through the
device,
c. Prying the platters apart, or
d. Other means that will sufficiently make
it inoperable.
O. PROVISIONAL
REMEDIES IN CRIMINAL
CASES
1. Nature
Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
connection with the civil action deemed
instituted with the criminal action [Sec. 1, Rule
127]
If the civil action is suspended on account of
filing of the criminal action, the court with which
the civil case is filed is not thereby deprived of
its authority to issue auxiliary writs that do not
U.P. LAW BOC CRIMINAL PROCEDURE
go into the merits of the case [Ramcar, Inc v.
de Leon, G.R. No. L-1329 (1947)]
Provisional remedies are not available
when
a. Offended party has waived the civil claim
b. Offended party has reserved the civil claim
c. Offended party has already instituted a
separate civil action
d. Criminal action carries with it no civil
liability.
Note: If civil action has been waived, reserved,
or instituted separately, the provisional remedy
applicable should be applied for in the separate
civil action instituted [Riano 571, 2011 Updated
Ed.]
2. Kinds of Provisional
Remedies
The accused may present evidence to prove
his defense and damages, if any, arising from
the issuance of a provisional remedy in the
case [Sec. 11(b), Rule 119]
a. Preliminary attachment
When proper
The offended party may have the property of
the accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused in the following
cases:
1. When the accused is about to abscond
from the Philippines
2. When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a
public/corporate officer, 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
3. When the accused has concealed,
removed or disposed of his property, or is
about to do so
4. When the accused resides outside the
Philippines
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[Sec. 2, Rule 127]
Issuance and implementation
The writ may be issued ex parte before
acquisition of jurisdiction over the accused
[Cuarter v. CA, G.R No. 102448 (1992))
However, it may be implemented only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties, G.R.
No. 140765 (2001)]
A public prosecutor has the authority to apply
for preliminary attachment to protect the
interest of the offended party, particularly
considering that the corresponding civil liability
of the culprits is to be determined therein, no
reservation having been made of the right to
enforce it in a separate civil action [Santos v.
Judge Flores, G.R. No. L-18251 & L-18252
(1962)]
No notice to the adverse party or hearing on
the application is required before a writ of
preliminary attachment may issue as a hearing
would defeat the purpose of the provisional
remedy. The time which such hearing would
take could be enough to enable the defendant
to abscond or dispose of his property before a
writ of attachment may issue [Mindanao
Savings and Loan Assoc. v. CA, G.R. No.
84481 (1989)]
b. Injunction
General rule: Criminal prosecution may not be
stayed or restrained by injunction, preliminary
or final.
Exceptions:
1. To afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a pre-judicial question which
is sub judice
4. When the acts of the officer are without or
in excess of authority
5. Where the prosecution is under an invalid
law, ordinance or regulation
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

6. When double jeopardy is clearly apparent

7. Where the court has no jurisdiction over the
offense
8. Where it is a case of persecution rather
than prosecution
9. Where the charges are manifestly false
and motivated by the lust for vengeance
10. When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied, and
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

EVIDENCE
REMEDIAL LAW

Page 453 of 525

U.P. LAW BOC EVIDENCE
IV. EVIDENCE
A. GENERAL PRINCIPLES
1. Concept of Evidence
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]
“Truth” is not necessarily the actual truth, but
one referred to as the judicial or legal truth.
[Riano, 2, 2016 Ed.]
2. Scope and Applicability of the
Rules of Evidence
a. Scope of Application
Under the Rules of Court (ROC), the rules of
evidence are specifically applicable only to
judicial proceedings [Sec. 1, Rule 128]
Judicial proceedings are of THREE KINDS
ONLY
1. Civil action – which is of two kinds:
a. ordinary civil action, and
b. special civil action
2. Criminal action
3. Special Proceeding [Sec. 3, Rule 1]
Note: All other proceedings are NON-
JUDICIAL, hence, application of the rules of
evidence in the ROC is not mandatory unless
provided to be so by law or regulation [see Sec.
4, Rule 1]
b. Uniformity of Application
General rule: The rules of evidence shall be
the same in all courts and in all trials and
hearings [Sec. 2, Rule 128]
Exceptions:
Page 454 of 525
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If otherwise provided by:
1. Law [e.g. 1987 Constitution, statutes]
2. Rules of Court [Sec. 2, Rule 128].
3. SC issuances [e.g., Judicial Affidavit Rule,
Rules on Procedure for Environmental
Cases, Child Witness Rule, Rules on
Electronic Evidence, Rules on DNA
Evidence]
No Vested Right of Property in Rules of
Evidence
Any evidence inadmissible according to the
laws in force at the time the action accrued, but
admissible according to the laws in force at the
time of trial, is receivable [Francisco 8, 1996
Ed., citing Aldeguer v. Hoskyn, G.R. No. 1164
(1903)]
Rules of Evidence May be Waived
According to Francisco [9, 1996 Ed., citing
American cases], there are rules of evidence
established merely for the protection of the
parties. If, according to the well-established
doctrine, the parties may waive such rules
during the trial of a case, there is no reason
why they cannot make the waiver in a contract
(ex. a contract of insurance requiring the
testimony of eyewitness as the only evidence
admissible concerning the death of the insured
person).
However, if the rule of evidence waived by the
parties has been established on grounds of
public policy, the waiver is void (ex. waiver
of the privilege against the disclosure of state
secrets).
U.P. LAW BOC EVIDENCE REMEDIAL LAW

3. Distinguish: Proof vs. In civil cases:

Evidence elements of
the cause of
action
Proof Evidence
In criminal
Result or Mode and manner of cases:
effect of proving competent facts in elements of
evidence [2 judicial proceedings the crime
Regalado [Bustos v. Lucero, G.R. No. [Prof. Avena]
698, 2008 L-2068, (1948)]
[2 Regalado 698-699, 2008 Ed.]
Ed.]

The end The means to an end One must adduce during trial the factum
result probans or the evidentiary facts by which the
factum probandum or the ultimate fact can be
established. [Dela Llana vs. Biong, G.R. No.
Note: evidence is a relative term; it signifies a 182356 (2018)]
relation between facts: the factum probans and
factum probandum [Wigmore, Principles of
5. Admissibility of Evidence
Judicial Proof, 5, as stated in Riano 11, 2016
Ed.]
Evidence is admissible when it is relevant to
the issue and not excluded by the Constitution,
4. Distinguish: Factum Probans the law or these Rules [Sec. 3, Rule 128]
v. Factum Probandum
Admissibility does not concern weight
Admissibility of evidence should not be
Factum probans Factum
equated with weight of evidence. The
probandum
admissibility of evidence depends on its
Evidentiary fact Ultimate fact relevance and competence, while the weight of
evidence pertains to evidence already admitted
and its tendency to convince and persuade.
Fact by which the factum Fact sought to Thus, a particular item of evidence may be
probandum is to be be established admissible, but its evidentiary weight depends
established on judicial evaluation within the guidelines
provided by the Rules of Court [Dela Llana v.
Materials evidencing the Proposition Biong, G.R. No. 182356 (2013)]
proposition
Admissibility of evidence refers to the question
of whether or not the circumstance (or
evidence) is to be considered at all. On the
other hand, the probative value of evidence
refers to the question of whether or not it
proves an issue [PNOC Shipping and
Transport Corporation v. C.A., G.R. No.
107518 (1998)]

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U.P. LAW BOC EVIDENCE
Since admissibility of evidence is determined
by its relevance and competence, admissibility
is, therefore, an affair of logic and law. On the
other hand, the weight to be given to such
evidence, once admitted, depends on judicial
evaluation within the guidelines provided in
Rule 133 and the jurisprudence laid down by
the Court. Thus, while evidence may be
admissible, it may be entitled to little or no
weight at all. Conversely, evidence which may
have evidentiary weight may be inadmissible
because a special rule forbids its reception.
[People v. Turco, G.R. No. 137757, (2000)]
To emphasize, “a preliminary investigation is
merely preparatory to a trial; it is not a trial on
the merits.” Since “it cannot be expected that
upon the filing of the information in court the
prosecutor would have already presented all
the evidence necessary to secure a conviction
of the accused,” the admissibility or
inadmissibility of evidence cannot be ruled
upon in a preliminary investigation. [Maza v.
Judge Turla, G.R. No. 187094 (2017)].
a. Requisites for Admissibility;
Exclusions
Requisites for Admissibility
a. Relevant to the issue; and
b. Not excluded by the Constitution, the law
or the ROC (“competent”) [Sec. 3, Rule
128]
Relevant Competent
When the evidence Not excluded by the
has such a relation Constitution, the law,
to the fact in issue or the Rules [Sec. 3,
as to induce belief in Rule 128]
its existence or non-
existence [Sec. 4,
Rule 128]
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The Importance of Offer in Relation to
Admissibility
Parties are required to inform the courts of the
purpose of introducing their respective exhibits
to assist the latter in ruling on their admissibility
in case an objection thereto is made [Star Two
v. Ko, G.R. No. 185454 (2011)]
The court shall consider no evidence which has
not been formally offered. The purpose for
which the evidence is offered must be
specified. [Sec. 34, Rule 132]
All evidence must be offered orally. [Sec.
35, Rule 132]
# Offer of testimonial evidence—made at
the time the witness is called to testify
# Offer of documentary and object
evidence—made after the presentation of
a party’s testimonial evidence
Objection
Objection to offer of evidence must be made
orally immediately after the offer is made
# Objection to the testimony of a witness for
lack of formal offer must be made as soon
as the witness begins to testify
# Objection as to a question propounded in
the course of the oral examination of a
witness must be made as soon as the
grounds therefor become reasonably
apparent
# The grounds for objections must be
specified [Sec. 36, Rule 132]
U.P. LAW BOC EVIDENCE
Exclusionary rules of evidence
1. Constitutional exclusionary rules
Consequence Violation
Inadmissible for any Art III, Sec 2
proceeding (unreasonable
searches and
seizure)
Art III, Sec 3 (privacy
of communication
and
correspondence)
Inadmissible against Art III, Sec 12 (right
the accused, but to counsel,
may be used by the prohibition on
offended party in a torture, force,
suit for damages violence, threat,
against the violator intimidation or other
means which vitiate
the free will;
prohibition on secret
detention places,
solitary,
incommunicado)
Art III, Sec 17 (right
against self-
incrimination)
It is settled that for an extrajudicial confession
to be admissible in evidence against the
accused, the same “must be (a) voluntary, (b)
made with the assistance of a competent and
independent counsel, (c) express, and (d) in
writing.”
Moreover, Section 2 of Republic Act No. 7438
requires that "any person arrested, detained or
under custodial investigation shall at all times
be assisted by counsel.”
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Statutory exclusionary rules
a. Lack of documentary stamp tax to
documents required to have one makes
such document inadmissible as evidence
in court until the requisite stamp/s shall
have been affixed thereto and cancelled
[Sec. 201, NIRC];
b. Any communication obtained by a person,
not being authorized by all the parties to
any private communication, by tapping
any wire/cable or using any other
device/arrangement to secretly
overhear/intercept/record such information
by using any device, shall not be
admissible in evidence in any hearing or
investigation [Secs. 1 and 4, R.A. 4200
(Wire-Tapping Act)]
Note: there must be a law that renders the
evidence inadmissible [Ejercito v.
Sandiganbayan G.R. Nos. 157294-95 (2006)].
In this case, the SC held that nowhere in R.A.
1405 (Bank Secrecy Law) does it provide that
an unlawful examination of bank accounts shall
render the evidence obtained therefrom
inadmissible in evidence.
3. Exclusions under the Rules on Evidence
• Original document rule (previously
best evidence rule)
• Hearsay evidence rule
• Offer of compromise in civil cases
4. Exclusions under Court issuances
# Rule on Electronic Evidence, e.g.
compliance with authentication
requirements for electronic evidence
# Rule on Examination of a Child
Witness, e.g. sexual abuse shield rule
# Judicial Affidavit Rule
U.P. LAW BOC EVIDENCE
b. Relevance of Evidence and
Collateral Matters
Relevancy
Evidence is relevant when it has “such a
relation to the fact in issue as to induce belief
in its existence or non-existence” [Sec. 4, Rule
128]
(e.g., evidence as to the age of a person who
has been raped is relevant in a situation where
the age would qualify the offence to statutory
rape)
Determinable by the rules of logic and human
experience [2 Regalado 704, 2008 Ed.]
Collateral matters
Matters other than the fact in issue and which
are offered as a basis for inference as to the
existence or non-existence of the facts in issue
[2 Regalado 708, 2008 Ed.]
General rule: Evidence on collateral matters is
NOT allowed
Exceptions: When it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue [Sec. 4, Rule
128]
Note: What the Rules prohibit is evidence of
irrelevant collateral facts [2 Regalado 708,
2008 Ed.]
c. Multiple Admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence
should be admitted for any or all the purposes
for which it is offered, provided it satisfies all
the requisites of law for its admissibility therefor
[2 Regalado 706, 2008 Ed.]
When a fact is offered for one purpose, and is
admissible insofar as it satisfies all rules
applicable to it when offered for that purpose,
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its failure to satisfy some other rule which
would be applicable to it if offered for another
purpose does not exclude it. [Francisco 11,
1996 Ed.]
d. Conditional Admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received on condition that the other facts will be
proved thereafter; otherwise, the evidence
already given shall be stricken out [2 Regalado
705, 2008 Ed.]
Example: a copy of a writing may not be
considered competent evidence until the
original is proven to be lost or destroyed
Conditional admissibility requires no bad faith
on the part of the proponent.
e. Curative Admissibility
The right of a party to introduce incompetent
evidence in his behalf where the court has
admitted incompetent evdience adduced by
the adverse party
Three theories (Wigmore)
1. American Rule – admission of
incompetent evidence, without objection
by the opponent, does not justify such
opponent in rebutting it by similar
incompetent evidence
2. English Rule – adverse party may resort
to similar inadmissible evidence
3. Massachussetts Rule – adverse party may
be permitted to introduce similar
incompetent evidence in order to avoid a
plain and unfair prejudice caused by the
admission of the other party’s evidence
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Note: none of these rules apply in the g. Positive and Negative Evidence
Philippines because there is no law or Rule that
allows it [Prof. Avena]
Positive Negative evidence
evidence
f. Direct and Circumstantial
Evidence Witness affirms Witness states he/she
that a certain did not see or does not
Direct Circumstantial evidence state of facts did know of the occurrence
evidence exist or that a of a fact
certain event
Proves the Proof of facts from which, happened.
fact in taken collectively, the
[2 Regalado 703, 2008 Ed.]
dispute existence of a particular fact
without the in dispute may be inferred
aid of any as a necessary or probable h. Competent and Credible
inference or consequence Evidence
presumption
[Francisco 2, 1996 Ed.] Competent Credible Evidence
Evidence
Requisites to warrant a conviction based on
Not excluded by Refers to probative
circumstantial evidence
the Constitution, value or convincing
a. there is more than one circumstance;
the law, or the weight
b. the facts from which the inferences are
Rules [Sec. 3,
derived are proven; and Rule 128] Weight involves the
c. the combination of all the circumstances is effect of evidence
such as to produce conviction beyond admitted, its tendency to
reasonable doubt [Sec. 4, Rule 133] convince and persuade.
It is not determined
The totality of the evidence must constitute an mathematically by the
unbroken chain showing the guilt of the numerical superiority of
accused beyond reasonable doubt [People v. the witnesses testifying
Matito, G.R. No. 144405 (2004)] to a given fact, but
depends upon its
Note: Circumstantial evidence is not a weaker practical effect in
form of evidence vis-a-vis direct evidence inducing belief on the
[People v. Matito, G.R. No. 144405 (2004)] part of the judge trying
the case [Francisco 11,
1996 Ed.]

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

proceedings, depending on the exigencies of

Determined by
the case. [Sec. 1, Rule 131]
the prevailing
exclusionary
A party will have the burden of evidence only
rules of evidence
if there is any factum probandum (whether
[2 Regalado 704,
evidentiary or otherwise) that the adverse party
2008 Ed.]
has already established (whether by law, rule,
or by virtue of evidence that he has presented)
Note:
that he (the potential proponent) has to
Exclusionary
overcome. A party will not have any burden of
rules may affect
evidence at all if the adverse party has not
due process. To
established any factum probandum in the first
the extent that
place [Prof. Avena]
they might
prejudice
The burden of proof is generally determined
substantive
by the pleadings filed by the party; the burden
rights, therefore,
of evidence is generally determined by the
they cannot be
developments at the trial, or by the provisions
made to apply
of the substantive law or procedural rules
retroactively.
which may relieve the party from presenting
evidence on the fact alleged, i.e.,
6. Burden of Proof and Burden presumptions, judicial notice and admissions [2
of Evidence Regalado 816-817, 2008 Ed.]

Burden of proof is the duty of a party to
present evidence on the facts in issue
necessary to establish his or her claim or
defense by the amount of evidence required by
law. Burden of proof never shifts. [Sec. 1, Rule
131]
• In civil cases, the burden of proof is on
the party who would be defeated if no
evidence were given on either side, the
plaintiff with respect to his complaint,
the defendant with respect to his
counterclaim, and the cross-claimant,
with respect to his cross-claim. [2
Regalado 816, 2008 Ed.]
• In criminal cases, the burden of proof
rests on the prosecution [Boac v.
People, G.R. No. 180597 (2008)]
Burden of evidence is the duty of a party to
present evidence sufficient to establish or
rebut a fact in issue to establish a prima facie
case. Burden of evidence may shift from one
party to the other in the course of the
In both civil and criminal cases, the burden of
evidence lies with the party who asserts an
affirmative allegation [2 Regalado 817, 2008
Ed.]
Example:
In a case for collection of a sum of money, if
the defendant asserts that she has paid, then
she has the burden of proving that she had, not
on the creditor that she had not. While the
creditor had needed to prove the existence of
a debt, the burden shifts to the debtor because
she alleged an affirmative defense, which
admits the creditor’s allegation [Vitarich v.
Losin, G.R. No. 181560 (2010)]
Equipoise Rule or Equipoise Doctrine
The doctrine refers to the situation where the
evidence of the parties are evenly balanced or
there is doubt on which side the evidence
preponderates. In this case, the decision
should be against the party with the burden of

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

proof [Rivera v. C.A., G.R. No. 115625 (1998); essentially an common logic or
Marubeni v. Lirag, G.R. No. 130998, (2001)] inference probability

In criminal cases, the equipoise rule provides e.g. Inference of In the absence of a
that where the evidence is evenly balanced, guilt upon discovery legal provision or
the constitutional presumption of innocence of bloodied garment ruling, there is no
tilts the scales in favor of the accused [Malana in possession of presumption of law.
v. People, G.R. No. 173612, (2008)] accused
e.g. Presumption of
7. Presumptions innocence in favor of
the accused,
Presumptions are inferences as to the presumption of
existence of a fact not actually known, arising negligence of a
from its usual connection with another which is common carrier
known, or a conjecture based on past
experience as to what course human affairs Conclusive Disputable
ordinarily take. [University of Mindanao, Inc. v.
Bangko Sentral ng Pilipinas, G.R. No. 194964-
65 (2016)] Inferences which Satisfactory if
the law makes so uncontradicted, but
A presumption can rest only upon ascertained peremptory that it may be contradicted
facts. It cannot be based on other will not allow them and overcome by
presumptions, assumptions, probabilities or to be overturned by other evidence [Sec.
inferences [Francisco, 52] any contrary proof 3, Rule 131]
however strong
Presumptions are not allegations, nor do they [Datalift Movers v.
supply their absence. Presumptions are Belgravia Realty,
conclusions. They do not apply when there are G.R. No. 144268
no facts or allegations to support them (2006)]
[University of Mindanao, Inc. v. Bangko Sentral
ng Pilipinas, G.R. No. 194964-65 (2016)] a. Conclusive Presumptions

Presumption of Presumption of law The technical definition of “conclusive

fact presumption” is implied by way of contra-
Praesumptiones Praesumptiones juris distinction with that for the term “disputable
hominis [2 [2 Regalado 819, presumption” in Sec. 3 of Rule 131 of the Rules
Regalado 819, 2008 Ed.] of Court.
2008 Ed.]
Those which the law Thus, a conclusive presumption is a class of
Those which the requires to be drawn evidence which the law does not allow to be
experience of from the existence of contradicted. [2 Regalado 703, 2008 Ed.]
mankind has shown established facts in
to be valid, founded the absence of Conclusive presumptions in the ROC [Sec.
on general contrary evidence; 2, Rule 131]:
knowledge and derived from the law a. A party is not permitted falsify a thing
information; itself rather from whenever:

Page 461 of 525

U.P. LAW BOC EVIDENCE
i. By his or her own declaration, act or
omission;
ii. He or she intentionally and
deliberately led another to believe a
particular thing is true;
iii. To act upon such belief; and
iv. The litigation arises out of such
declaration act or omission
b. A tenant is not permitted to deny the title
of his or her landlord at the time of the
commencement of the relation of landlord
and tenant between them
These conclusive presumptions are based
upon the doctrine of estoppel in pais, see Arts.
1431-1439, Civil Code [2 Regalado 820, 2008
Ed.]
Once a contract of lease is shown to exist
between the parties, the lessee cannot by any
proof, however strong, overturn the conclusive
presumption that the lessor has a valid title to
or a better right of possession to the subject
premises than the lessee [Santos v. National
Statistics Office., G.R. No. 171129, (2011)]
What a tenant is estopped from denying is the
title of his landlord at the time of the
commencement of the landlord-tenant relation.
If the title asserted is one that is alleged to have
been acquired subsequent to the
commencement of that relation, the
presumption will not apply. Hence, the tenant
may show that the landlord's title has expired
or been conveyed to another or himself; and he
is not estopped to deny a claim for rent, if he
has been ousted or evicted by title paramount
[Ermitaño v Paglas, G.R. No. 174436 (2013)]
Sources of conclusive presumptions other
than the Rules of Court:
a. Law
i. The decree of registration and the
certificate of title issued shall become
incontrovertible, upon the expiration of
the one-year period within which any
Page 462 of 525
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person deprived of land or of any estate
or interest therein by such adjudication
or confirmation of title obtained by
actual fraud, to file in the proper court a
petition for reopening and review of the
decree of registration [Sec. 32, P.D.
1529]
ii. The child shall be considered
legitimate although the mother may
have declared against its legitimacy or
may have been sentenced as an
adulteress. [Art. 167, FC]. Factum
probans that the child was conceived
or born during the marriage of its
parents conclusively establishes the
factum probandum of the legitimate
status of that child, Art. 167 is saying
that any factum probans presented and
offered to prove the truth of the latter
declaration (of the mother) will be
inadmissible in evidence.
b. SC issuances
b. Disputable Presumptions
a. Person is innocent of crime or wrong;
b. Unlawful act is done with an unlawful
intent;
c. Person intends the ordinary consequences
of his or her voluntary act;
d. Person takes ordinary care of his or her
concerns;
e. Evidence willfully suppressed would be
adverse if produced;
f. Money paid by one to another was due to
the latter;
g. Thing delivered by one to another
belonged to the latter;
h. Obligation delivered up to the debtor has
been paid;
i. Prior rents or installments had been paid
when a receipt for the later ones is
produced;
U.P. LAW BOC EVIDENCE
j. A person found in possession of a thing
taken in the doing of a recent wrongful act
is the taker and doer of the whole act;
otherwise, that things which a person
possesses or exercises acts of ownership
over are owned by him or her;
k. Person in possession of an order on
himself or herself for the payment of the
money, or the delivery of anything, has
paid the money or delivered the thing
accordingly;
l. Person acting in a public office was
regularly appointed or elected to it;
m. Official duty has been regularly performed;
n. A court, or judge acting as such, whether in
the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
o. All the matters within an issue raised in a
case were laid before the court and passed
upon by it; and in like manner that all
matters within an issue raised in a dispute
submitted for arbitration were laid before
the arbitrators and passed upon by them;
p. Private transactions have been fair and
regular;
q. Ordinary course of business has been
followed;
r. There was a sufficient consideration for a
contract;
s. Negotiable instrument was given or
indorsed for a sufficient consideration;
t. An indorsement of a negotiable instrument
was made before the instrument was
overdue and at the place where the
instrument is dated;
u. A writing is truly dated;
v. Letter duly directed and mailed was
received in the regular course of the mail;
w. Presumptions concerning absence:
1. Ordinary but continued absence of:
■ 7 years, it being unknown WON the
absentee still lives, he or she is
considered dead for all purposes,
except for those of succession
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■ 10 years – the absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75
years, an absence of 5 years shall
be sufficient to open his or her
succession
■ 4 consecutive years – the spouse
present may contract a subsequent
marriage if s/he has a well-founded
belief that the absent spouse is
already dead; but where there is
danger of death, an absence of
only 2 years shall be sufficient for
remarriage
➢ Note: before marrying again,
the present spouse must
institute summary proceedings
for declaration of presumptive
death of spouse
2. Qualified absence – The following shall
be considered dead for all purposes
including the division of the estate
among the heirs
■ A person on board a vessel lost
during a sea voyage, or an aircraft
which is missing, who has not been
heard of for 4 years since the loss
of the vessel or aircraft
■ A member of the armed forces who
has taken part in armed hostilities,
and has been missing for 4 years
■ A person who has been in danger
of death under other circumstances
and whose existence has not been
known for 4 years
a. Acquiescence resulted from a belief that
the thing acquiesced in was conformable to
the law or fact
1. “Acquiescence” – reluctant
acceptance without protest
b. Things have happened according to the
ordinary course of nature and the ordinary
habits of life
U.P. LAW BOC EVIDENCE REMEDIAL LAW

c. Persons acting as co-partners have h. A thing once proved to exist continues as

entered into a contract of co-partnership;
d. A man and woman deporting themselves
as husband and wife have entered into a
lawful contract of marriage;
e. Property acquired by a man and a woman
who are capacitated to marry each other
and who live exclusively with each other as
husband and wife without the benefit of
marriage or under a void marriage, has
been obtained by their joint efforts, work or
industry;
f. In cases of cohabitation by a man and a
woman who are not capacitated to marry
each other and who have acquired
property through their actual joint
contribution of money, property or industry,
such contributions and their corresponding
shares including joint deposits of money
and evidences of credit are equal;
g. Presumptions governing children of
women who contracted another marriage
within 300 days after termination of her
former marriage (in the absence of proof to
the contrary):
When Child was Born Presumption
Before 180 days after Considered to have
the solemnization of been conceived during
the subsequent the former marriage,
marriage provided it be born
within 300 days after
the termination of the
former marriage
long as is usual with things of the nature;
i. The law has been obeyed;
j. A printed/published book, purporting to be
printed/published by public authority, was
so printed/published;
k. A printed/published book, purporting to
contain reports of cases adjudged in
tribunals of the country where the book is
published, contains correct reports of such
cases;
l. A trustee or other person whose duty it was
to convey real property to a particular
person has actually conveyed it to him
when such presumption is necessary to
perfect the title of such person or his
successor in interest;
m. Presumptions regarding survivorship:
(Applicable for all purposes except
succession)
1. When 2 persons perish in the same
calamity
2. It is not shown who died first; and
3. There are no particular circumstances
from which the order of death can be
inferred
The survivorship is determined from the
probabilities resulting from the strength and the
age of the sexes:
Situation Person presumed to
have survived
Both < 15 y/o The older

After 180 days Considered to have

following the been conceived during
Both > 60 y/o The younger
celebration of the the subsequent
subsequent marriage marriage, even though One < 15 y/o, The one < 15
it be born within the
the other > 60 y/o
300 days after the
termination of the
former marriage.
Both > 15 and < 60 The male
y/o, of different sexes

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U.P. LAW BOC EVIDENCE
Both > 15 and <60 The older
y/o, of the same sex
One < 15 or > 60 y/o, The one between
and the other those ages
between those ages
n. As between 2 or more persons called to
succeed each other: If there is a doubt as
to which of them died first, whoever alleges
the death of one prior to the other, shall
prove the same.
1. In the absence of proof, they shall
be considered to have died at the
same time.
[Sec. 3, Rule 131]
No presumption of legitimacy or
illegitimacy
There is no presumption of legitimacy or
illegitimacy of a child born after 300 days
following the dissolution of marriage or the
separation of spouses. Whoever alleges the
legitimacy or illegitimacy of such child must
prove his or her allegation [Sec. 4, Rule 131]
The adverse presumption of suppression of
evidence is not applicable when:
a. The suppression is not willful;
b. The evidence suppressed or withheld is
merely corroborative or cumulative;
c. The evidence is at the disposal of both
parties; and
d. The suppression is an exercise of a
privilege [Tarapen v. People, G.R. No.
173824 (2008)]
The presumption of regularity in the
performance of official duty obtains only when
there is no deviation from the regular
performance of duty. Where the official act in
question is irregular on its face, no presumption
of regularity can arise [People v. Casabuena,
G.R. No. 186455 (2014)]
Page 465 of 525
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When there is gross disregard of the
procedural safeguards set forth in Republic Act
No. 9165 (Comprehensive Dangerous Drugs
Act of 2002), serious uncertainty is generated
as to the identity of the seized items that the
prosecution presented in evidence. Such doubt
cannot be remedied by merely invoking the
presumption of regularity in the performance of
official duties [People v. Lagahit, G.R. No.
200877 (2014)]
c. Presumptions in civil actions
and proceedings; against an
accused in criminal cases
Civil actions and proceedings
In all civil actions and proceedings not
otherwise provided for by the law or these
Rules, a presumption imposes on the party
against whom it is directed the burden of going
forward with evidence to rebut or meet the
presumption.
If presumptions are inconsistent, the
presumption that is founded upon weightier
considerations of policy shall apply.
If considerations of policy are of equal weight,
neither presumption applies. [Sec. 5, Rule 131]
Criminal cases
If a presumed fact that established guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must
be proved beyond reasonable doubt and the
presumed fact follows from the basic fact
beyond reasonable doubt. [Sec. 6, Rule 131]
8. Construction of the Rules of
Evidence
The Rules of Court, including the Revised
Rules on Evidence, shall be liberally
construed in order to promote their objective
of securing a just, speedy and inexpensive
disposition of every action and proceeding
[Sec. 6, Rule 1]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

2. The witnesses’ manner of testifying, their

Rules on Electronic Evidence shall likewise be intelligence, their means and opportunity
liberally construed [Sec. 2, Rule 2, Rules on of knowing the facts to which they testify,
Electronic Evidence] the nature of the facts to which they
testify, the probability or improbability of
9. Quantum of Evidence their testimony, their interest or want of
interest, and also their personal credibility
a. Proof Beyond Reasonable so far as the same may legitimately
Doubt appear upon the trial;
3. Number of witnesses (although
In a criminal case, the accused is entitled to an preponderance is not necessarily with the
acquittal, unless his or her guilt is shown greater number) [Sec. 1, Rule 133]
beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a
c. Substantial Evidence
degree of proof as, excluding possibility of
error, produces absolute certainty. Moral
Degree of evidence required in cases filed
certainty only is required, or that degree of
before administrative or quasi-judicial
proof which produces conviction in an
bodies
unprejudiced mind [Sec. 2, Rule 133]
It is the amount of relevant evidence which a
The burden is on the prosecution to prove guilt
reasonable mind might accept as adequate to
beyond reasonable doubt, NOT on the
justify a conclusion. [Sec. 6, Rule 133]
accused to prove his/her innocence [Boac v
People, G.R. No. 180597, (2008)]
Also applies to petitions under the Rule on the
Writ of Amparo [Sec. 17, Rule on the Writ of
The prosecution must not rely on the weakness
Amparo] and the Rule on the Writ of Habeas
of the evidence of the defense [Ubales v
data [Sec. 16, Rule on the Writ of Habeas data]
People, G.R. No. 175692, (2008); People v.
Hu, G.R. No. 182232, (2008)]
Substantial Evidence Rule
Factual findings, especially when affirmed by
b. Preponderance of Evidence the Court of Appeals, are accorded not only
great respect but also finality, and are deemed
Applicable quantum of evidence in civil cases
binding upon this Court so long as they are
[Sec. 1, Rule 133]
supported by substantial evidence [Tan
Brothers Corp. v. Escudero, G.R. No. 188711
Means that the evidence adduced by one side
(2013)]
is, as a whole, superior to or has greater weight
than that of the other [Habagat Grill v. DMC-
d. Clear and Convincing Evidence
Urban Property Developer, Inc., G.R. No.
155110, (2005); Bank of the Philippine Islands
Clear and convincing evidence is more than
v. Reyes, G.R. No. 157177, (2008)]
mere preponderance, but not to the extent
of such certainty as is required beyond
In determining preponderance of evidence, the
reasonable doubt as in criminal cases
court may consider:
[Manalo v. Roldan-Confesor, G.R. No. 102358
1. All the facts and circumstances of the
(1992)]
case;

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

The standard of proof required in granting or

denying bail in extradition cases is “clear and
B. JUDICIAL NOTICE AND
convincing evidence” that the potential JUDICIAL ADMISSIONS
extraditee is not a flight risk and will abide with
all the orders and process of the extradition 1. What Need Not Be Proved
court [Government of Hongkong Special
Administrative Region v. Olalia, Jr., G.R. No. a. Facts of Judicial Notice
153675, (2007)] b. Judicial Admissions
c. Conclusive Presumptions
It must be added that the defenses of denial
and improper motive can only prosper when Note: Evidence is also not required when the
substantiated by clear and convincing issue is purely a question of law. The definition
evidence [People v. Colentava, G.R. No. of “evidence” in Sec. 1, Rule 128 refers to “a
190348 (2015)] matter of fact”.

It is used for overturning disputable 2. Matters of Judicial Notice

presumptions, such as the presumption of
regularity in the performance of official duties
[Portuguez v. People, G.R. No. 194499,
(2015)] or the existence of a valuable
consideration [Tolentino v. Sps. Jerera, G.R.
No. 179874 (2015)]
Note however: The addressee's “direct
denial” of receipt of mail alleged to have been
mailed to it defeats the presumption in Sec.
3(v), Rule 131 and shifts the burden upon the
party favored by the presumption to prove that
the mailed letter was indeed received by the
addressee [Commissioner of Internal Revenue
v. Metro Star, G.R. No. 185371 (2010)]
It is also the standard of proof for invoking the
justifying circumstance of self-defense for the
defense and proving the aggravating
circumstance of treachery for the prosecution
[People v. C.A.sas, G.R. No. 212565 (2015)]
The former is because having admitted the
killing requires the accused to rely on the
strength of his own evidence, not on the
weakness of the Prosecution’s, which, even if
it were weak, could not be disbelieved in view
of his admission [People v. Mediado, G.R. No.
169871 (2011)]
Judicial Notice
Judicial notice is the cognizance of certain
facts that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
further traditional evidentiary support.
[Republic v. Sandiganbayan, G.R. No. 166859,
(2011)]
Courts must take judicial notice with caution.
Any reasonable doubt on the subject must be
resolved in the negative (court will not take
judicial notice).
a. When Mandatory
1. Existence and territorial extent of states;
2. Their political history, forms of government,
and symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world
and their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines;
a. Note: the 2019 Amendment added the
words “of the National Government of
the Philippines”
7. Laws of nature;
8. Measure of time; and

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U.P. LAW BOC EVIDENCE
9. Geographical divisions [Sec. 1, Rule 129]
Note: It is grave abuse of discretion if the court
does not allow the taking of judicial notice.
[Prof. Avena]
Since we consider the act of cancellation by
President Macapagal-Arroyo of the proposed
ZTE- NBN Project during the meeting of
October 2, 2007 with the Chinese President in
China as an official act of the executive
department, the Court must take judicial
notice of such official act without need of
evidence. [Suplico v. NEDA, G.R. No. 178830
(2008)]
The Management Contract entered into by
petitioner and the Philippine Ports Authority is
clearly not among the matters which the courts
can take judicial notice of. It cannot be
considered an official act of the executive
department. The PPA was only performing a
proprietary function when it entered into a
Management Contract with the petitioner.
[Asian Terminals v. Malayan Insurance, G.R.
No. 171406 (2011)]
The RTC declared that the discrepancy arose
from the fact that Barrio Catmon was
previously part of Barrio Tinajeros. The RTC
has authority to declare so because this is a
matter subject to mandatory judicial notice.
Geographical divisions are among matters that
courts should take judicial notice of [B.E. San
Diego, Inc. v. C.A., G.R. No. 159230 (2010)]
b. When Discretionary
1. Matters of public knowledge;
2. Matters capable of unquestionable
demonstration; and
3. Matters ought to be known to judges
because of their judicial functions [Sec. 2,
Rule 129]
Requisites
1. The matter must be one of common and
general knowledge;
2. It must be well and authoritatively settled
and not doubtful or uncertain;
Page 468 of 525
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3. It must be known to be within the limits of
the jurisdiction of the court
The principal guide in determining what facts
may be assumed to be judicially-known is that
of notoriety. Hence, it can be said that judicial
notice is limited to facts evidenced by public
records and facts of general notoriety.
Moreover, a judicially-noticed fact must be one
not subject to a reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting
to sources whose accuracy cannot reasonably
be questionable. [Expertravel & Tours, Inc. v.
CA and Korean Airlines, GR No. 152392
(2005)]
Things of “common knowledge,” of which
courts take judicial notice, may be matters
coming to the knowledge of men generally in
the course of the ordinary experiences of life,
or they may be matters which are generally
accepted by mankind as true and are capable
of ready and unquestioned demonstration.
[State Prosecutors v, Muro, A.M. No. RTJ-92-
876 (1994)]
Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is
not authorized to make his individual
knowledge of a fact, not generally or
professionally known, the basis of his action.
[Ibid]
Note: When Hearing Necessary
During the Pre-Trial and the Trial
The court, motu proprio, or upon motion, shall
hear the parties on the propriety of taking
judicial notice of any matter. [Sec. 3, Rule 129]
After the Trial and Before Judgment or on
Appeal
The court, motu proprio or upon motion, may
take judicial notice of any matter and shall hear
the parties thereon if such matter is decisive of
a material issue in the case [Sec. 3, Rule 129]
U.P. LAW BOC EVIDENCE
Note: With Respect to the Court’s Own Acts
and Records
A court will take judicial notice of its own acts
and records in the same case, of facts
established in prior proceedings in the same
case, of the authenticity of its own records of
another case between the same parties, of the
files of related cases in the same court, and of
public records on file in the same court
[Republic v. C.A., G.R. No. 119288 (1997)]
With Respect to Records of Other Cases
General rule:
As a general rule, courts are not authorized to
take judicial notice of the contents of the
records of other cases, even when such cases
have been tried or are pending in the same
court, and notwithstanding the fact that both
cases may have been tried or are actually
pending before the same judge. [People v.
Hernandez, G.R. No. 108028 (1996)]
Exceptions:
In the absence of objection, and as a matter of
convenience to all parties, a court may properly
treat all or any part of the original record of a
case filed in its archives as read into the record
of a case pending before it, when:
1. With the knowledge of the opposing party,
reference is made to it for that purpose, by
name and number or in some other manner
by which it is sufficiently designated; or
2. The original record of the former case or
any part of it, is actually withdrawn from the
archives by the court's direction, at the
request or with the consent of the parties,
and admitted as a part of the record of the
case then pending [US v Claveria, G.R. No.
G.R. No. 9282 (1915)].
Courts may also take judicial notice of
proceedings in other causes because of their:
1. Close connection with the matter in
controversy. Ex: In a separate civil action
against the administrator of an estate
arising from an appeal against the report of
the committee on claims appointed in the
administration proceedings of the said
estate, the court took judicial notice of the
record of the administration proceedings to
Page 469 of 525
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determine whether or not the appeal was
taken on time,
2. To determine whether or not the case
pending is a moot one or whether or not a
previous ruling is applicable in the case
under consideration.
3. The other case had been decided by the
same court, involving the same subject
matter, with the same cause of action, and
was between the same parties (which was
not denied), and constituted res judicata on
the current cause before the court [Tiburcio
v. PHHC, G.R. No. L-13479, (1959)]
In this case, the requisite of notoriety is belied
by the necessity of attaching documentary
evidence, i.e., the Joint Affidavit of the
stallholders, to prove the alleged practice of
paying goodwill money in a particular area
[Latip v. Chua, G.R. No. 177809 (2009)]
The classification of the land is obviously
essential to the valuation of the property. The
parties should thus have been given the
opportunity to present evidence on the nature
of the property before the lower court took
judicial notice of the commercial nature of a
portion of the subject landholdings [LBP v.
Honeycomb Farms, G.R. No. 166259 (2012)]
It can be considered of public knowledge and
judicially noticed that the scene of the rape is
not always nor necessarily isolated or secluded
for lust is no respecter of time or place. [People
v. Tundag, G.R. Nos. 135695-96. (2000)]
Laws of nature involving the physical sciences,
specifically biology, include the structural
make-up and composition of living things. The
Court may take judicial notice that a person’s
organs were in their proper anatomical
locations [Atienza v. Board of Medicine, G.R.
No. 177407 (2011)]
The distance between places may be taken as
a matter of judicial notice [Maceda v. Vda. De
Macatangay, G.R. No. 164947 (2006)]
The Court may take judicial notice of the
assessed value of property. [Bangko Sentral
U.P. LAW BOC EVIDENCE
ng Pilipinas v. Legaspi, G.R. No. 205966
(2016)]
3. Judicial Admissions
In General
To be a judicial admission, the same:
a. May be oral or written;
b. Must be made by a party to the case; and
c. Must be made in the course of the
proceedings in the same case.
[Sec. 4, Rule 129]
Note: The admission, to be judicial, must be
made in the course of the proceedings in the
same case. Thus, an admission made in
another judicial proceeding will not be deemed
a judicial admission in the case where the
admission is not made. Instead, it will be
considered an extrajudicial admission for
purposes of the other proceeding where such
admission is offered [Riano 87, 2016 Ed.]
Judicial admissions may be made in
a. the pleadings filed by the parties,
b. in the course of the trial, either by verbal or
written manifestations or stipulations, or
c. in other stages of the judicial proceeding;
ex. stipulation of facts in a pre-trial
conference [People v. Hernandez, G.R.
No. 108028 (1996)], allegations in motions
not specifically denied [Republic v. de
Guzman, G.R. No. 175021 (2011)], pre-
trial, depositions, written interrogatories or
requests for admission [2 Regalado 836-
837, 2008 Ed.]
Note:
a. Admissions made by a party pursuant to a
request for admission is for the purpose of
the pending action only [Sec. 3, Rule 26]
b. In criminal cases, all agreements or
admissions made or entered during the
pre-trial conference shall be reduced in
writing and signed by the accused and
counsel, otherwise, they cannot be used
against the accused [Sec. 2, Rule 118]
However, in the civil case instituted with the
criminal case, such admission will be
admissible against any other party.
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There are averments made in pleadings which
are not deemed admissions even if the adverse
party fails to make a specific denial of the same
like immaterial allegations [Sec. 11, Rule 8],
conclusions, as well as the amount of
liquidated damages [Sec. 11, Rule 8] [Riano
89, 2016 Ed.]
Note: The theory of adoptive admission has
been adopted by the court in this jurisdiction.
An adoptive admission is a party’s reaction to
a statement or action by another person
when it is reasonable to treat the party’s
reaction as an admission of something
stated or implied by the other person. The
basis for admissibility of admissions made
vicariously is that arising from the ratification or
adoption by the party of the statements which
the other person had made.
In the Angara Diary, Estrada’s options started
to dwindle when the armed forces withdrew its
support. Thus, Executive Secretary Angara
had to ask Senate President Pimentel to advise
the petitioner to consider the option of
dignified exit or resignation. Estrada did not
object to the suggested option but simply said
he could never leave the country. [Estrada v.
Desierto, G.R. Nos. 146710-15 (2001)]
Judicial Proceeding [Sec. 3, Rule 1]
a. Civil – includes special civil actions
b. Criminal
c. Special Proceeding
Examples of statements made that are not
judicial admissions
a. Statements made during preliminary
investigation
b. Statements during Court-Annexed
Mediation
Note: Execution of judgment is part of a judicial
proceeding. The Court retains control over the
case until the full satisfaction of the final
judgment [People v. Gallo, G.R. No. 124736
(1999)]
U.P. LAW BOC EVIDENCE
a. Effect of Judicial Admissions
The judicial admission does not require proof.
[Sec. 4, Rule 129]
Sec. 8, Rule 10 (as amended) provides that
“[a]n amended pleading supersedes the
pleading that it amends. However,
admissions in superseded pleadings may
be offered in evidence against the pleader.”
Thus, admissions in superseded pleadings
have to be “[offered] in evidence” precisely
because they become extra-judicial in nature
the moment the pleading containing them are
superseded by virtue of amendment. See
Bastida v. Menzi & Co, Inc [G.R. No. L-35840
(1933)], cited in 2 Regalado 837, 2008 Ed.
A party who judicially admits a fact cannot later
challenge that fact, as judicial admissions are
a waiver of proof; production of evidence is
dispensed with [Alfelor v. Halasan, G.R. No.
165987 (2006)]
Consequently:
1. An admission made in the pleadings
cannot be controverted by the party making
such admission and are conclusive as to
such party, and all proofs to the contrary or
inconsistent therewith should be ignored,
whether objection is interposed by the
party or not.
2. The allegations, statements or admissions
contained in a pleading are conclusive as
against the pleader.
3. A party cannot subsequently take a
position contrary of or inconsistent with
what was pleaded. [Florete, Sr. v. Florete,
Jr., G.R. No. 223321, (2018)]
b. How Judicial Admissions May
be Contradicted
As an exception to the general rule, judicial
admissions may be contradicted only by
showing that:
1. It was made through palpable mistake; or
2. The imputed admission was not, in fact,
made.
[Sec. 4, Rule 129]
Page 471 of 525
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This may be invoked when the statement of a
party is taken out of context or that his
statement was made not in the sense it is made
to appear by the other party [Phil. Health Care
Providers v. Estrada, G.R. No. 171052, (2008),
citing Atillo, III v. C.A. (1997)]
An admission against interest binds the person
who makes the same, and absent any showing
that this was made through palpable mistake,
no amount of rationalization can offset it,
especially so in this case where respondents
failed to present even one piece of evidence in
their defense. [Heirs of Donton v. Stier, G.R.
No. 216491 (2017)]
Note: Allegations (and admissions) in a
pleading, even if not shown to be made through
“palpable mistake”, can still be corrected or
amended provided that the amendment is
sanctioned under Sec. 8, Rule 10 of the Rules
of Court. [(Yujuico v. United Resources, G.R.
No. 211113 (2015)]
a. Pre-trial Admissions
Facts subject of a stipulation or agreement
entered into by the parties at the pre-trial of a
case constitute judicial admissions by them
[Lim v. Jabalde, L-36786 (1989), cited in 2
Regalado 837, 2008 Ed.]
When the parties in a case agree on what the
foreign law provides, these are admissions of
fact which the other parties and the court are
made to rely and act upon, hence they are in
estoppel to subsequently take a contrary
position [PCIB v Escolin G.R. L-27860 and L-
27896 (1974], cited in 2 Regalado 838, 2008
Ed.]
When contradicted:
1. In civil cases: if to prevent manifest
injustice [Sec. 7, Rule 18];
2. In criminal cases: if the pre-trial admission
was reduced to writing and signed by the
accused and his counsel [Secs. 2 and 4,
Rule 118]
U.P. LAW BOC EVIDENCE
C. OBJECT (REAL)
EVIDENCE
1. Nature of object evidence
Object Evidence
Those addressed to the senses of the court
[Sec. 1, Rule 130]
A person’s appearance, where relevant, is
admissible as object evidence, the same being
addressed to the senses of the court [People v.
Rullepa, G.R. No. 131516 (2003)]
An ocular inspection of the body of the accused
is permissible. [Villaflor v. Summers, G.R., No.
16444 (1920)]
The right against self-incrimination cannot be
invoked against object evidence. [People v.
Malimit, G.R. No. 109775 (1996)]
View of an object or scene
The inspection or view outside the
courtroom should be made in the presence of
the parties or at least with previous notice to
them in order that they may show the object to
be viewed. Such inspection or view is a part of
the trial, inasmuch as evidence is thereby
being received, which is expressly authorized
by law. [5 Moran 81, 1970 Ed., cited in In re
Climaco, A.C. No. 134-J (1974)
2. Requisites for Admissibility
Basic requisites for admissibility
a. Evidence must be relevant;
b. Evidence must be authenticated by a
competent witness;
c. Object must be formally offered [Sec. 34,
Rule 132]
[Riano 101, 2016 Ed.]
RELEVANT
General rule: When an object is relevant to the
fact in issue, it may be exhibited to, examined
or viewed by the court [Sec. 1, Rule 130]
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Exceptions: Court may refuse exhibition of
object evidence and rely on testimonial
evidence alone if—
a. Exhibition is contrary to public policy,
morals or decency;
b. It would result in delays, inconvenience,
unnecessary expenses out of proportion to
the evidentiary value of such object;
[People v. Tavera, G.R. No. L-23172
(1925)]
c. Evidence would be confusing or
misleading;
d. The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary.
COMPETENT AND AUTHENTICATED
Evidence must be authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
Authentication must be made by a
competent witness
The witness must have the capacity to identify
the object as the very thing involved in the
litigation.
A witness can testify only to those facts which
he/she knows of his/her personal knowledge;
that is, which are derived from his/her own
perception [Sec. 22, Rule 130]
Note: Requisites for the admissibility of
tape recording
a. A showing that the recording was capable
of taking testimony
b. A showing that the operator of the
recording device is competent
c. Establishment of the authenticity and
correctness of recording
d. A showing that no changes, deletions, or
additions have been made on the
recordings
e. A showing of the manner of preservation of
the recording
f. Identification of speakers
U.P. LAW BOC EVIDENCE REMEDIAL LAW

g. A showing that the testimony elicited was Audio, photographic and video evidence of
voluntarily made without any kind of events, acts or transactions shall be admissible
inducement provided it shall be:
[Torralba v. People, G.R. No. 153699 (2005)] 1. shown, presented or displayed to the court,
and
3. Categories of Object 2. identified, explained or authenticated
i. by the person who made the recording,
Evidence or
ii. by some other person competent to
Two classifications: testify on the accuracy thereof.
a. Actual physical or “autopic” evidence – [Sec. 1, Rule 11, Rules on Electronic Evidence]
those which have a direct relation or part in
the fact or incident sought to be proven and Note: reenactments are object evidence
those brought to the court for personal because they are exhibited, examined and
examination by the presiding magistrate; viewed by the court. E.g. a person who hears a
man cat-call a woman, and mimics the cat-call
Objects that in court is reenacting the event. He is not
have readily testifying because he was not declaring
E.g., gun with
identifiable anything nor making a statement. [Prof. Avena]
a serial
marks; or
number
Unique 4. Chain Of Custody In Relation
objects Exhibit
Car with a To Sec 21 Of The
identifiable
dent on its left Comprehensive Dangerous
visual or
bumper
physical Drugs Act Of 2002
peculiarities
Objects with no “Chain of Custody” means the duly recorded
unique authorized movements and custody of seized
E.g.,sachet of drugs or controlled chemicals or plant sources
characteristic
shabu with of dangerous drugs or laboratory equipment of
Objects but are made
initials of the each stage, from the time of
made readily
police officer seizure/confiscation to receipt in the forensic
unique identifiable by
who retrieved laboratory to safekeeping to presentation in
law enforcers
it court for destruction. [Sec. 1(b), Dangerous
upon retrieval or
confiscation Drugs Board Resolution No. 1 (2002)]
Objects with no
Non- identifying E.g., narcotic As a method of authenticating evidence, the
unique marks and substances, chain of custody rule requires that the
objects cannot be bodily fluids admission of an exhibit be preceded by
marked evidence sufficient to support a finding that the
matter in question is what the proponent claims
[People v. Olarte, G.R. No. 233209 (2019)]
it to be. It would include testimony about every
b. Demonstrative Evidence
Those which represent the actual or physical link in the chain, from the moment the item was
object (or event in case of pictures or videos) picked up to the time it is offered into evidence,
being offered to support or draw an inference in such a way that every person who touched
or to aid in comprehending the verbal the exhibit would describe how and from whom
testimony of a witness. [People v. Olarte, G.R. it was received, where it was and what
No. 233209 (2019)] happened to it while in the witness' possession,
the condition in which it was received and the

Page 473 of 525

U.P. LAW BOC EVIDENCE
condition in which it was delivered to the next
link in the chain. These witnesses would then
describe the precautions taken to ensure that
there had been no change in the condition of
the item and no opportunity for someone not in
the chain to have possession of the same.
[Mallillin v. People, 576 Phil. 576 (2008)]
As a general rule, four links in the chain of
custody of the confiscated item must be
established:
a. first, the seizure and marking, if
practicable, of the illegal drug recovered
from the accused by the apprehending
officer;
b. second, the turnover of the illegal drug
seized by the apprehending officer to the
investigating officer;
c. third, the turnover by the investigating
officer of the illegal drug to the forensic
chemist for laboratory examination; and
d. fourth, the turnover and submission of the
marked illegal drug seized from the
forensic chemist to the court. [People v.
Gayoso, G.R. No. 206590 (2017)]
Note: If the proffered evidence is unique,
readily identifiable, and relatively resistant to
change, that foundation need only consist of
testimony by a witness with knowledge that the
evidence is what the proponent claims;
otherwise, the chain of custody rule has to be
resorted to and complied with by the proponent
to satisfy the evidentiary requirement of
relevancy. And at all times, the source of
amorphous as well as firmly structured objects
being offered as evidence must be tethered to
and supported by a testimony.
In the case at hand, the chain of custody rule
does not apply to an undetonated grenade (an
object made unique), for it is not amorphous
and its form is relatively resistant to change. A
witness of the prosecution need only identify
the hand grenade, a structured object, based
on personal knowledge that the same
contraband or article is what it purports to be —
that it came from the person of accused-
Page 474 of 525
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appellant. [People v. Olarte, G.R. No. 233209
(2019)]
5. DNA Evidence
When a crime is committed, material is
collected from the scene of the crime or from
the victim’s body for the suspect’s DNA. This is
the evidence sample. The evidence sample is
then matched with the reference sample taken
from the suspect and the victim. The purpose
of DNA testing is to ascertain whether an
association exists between the evidence
sample and the reference sample. The
samples collected are subjected to various
chemical processes to establish their
profile. The test may yield three possible
results:
a. Exclusion – The samples are different and
therefore must have originated from
different sources. This conclusion is
absolute and requires no further analysis or
discussion;
b. Inconclusive – It is not possible to be sure,
based on the results of the test, whether
the samples have similar DNA types. This
might occur for a variety of reasons
including degradation, contamination, or
failure of some aspect of the protocol.
Various parts of the analysis might then be
repeated with the same or a different
sample, to obtain a more conclusive result;
or
c. Inclusion – The samples are similar, and
could have originated from the same
source. In such a case, the samples are
found to be similar, the analyst proceeds to
determine the statistical significance of the
similarity [People v. Vallejo, G.R. No.
144656 (2002)].
Obtaining DNA samples from an accused in a
criminal case or from the respondent in a
paternity case, contrary to the belief of
respondent in this action, will not violate the
right against self-incrimination. [Herrera v.
Alba, G.R. No. 148220 (2005)]
U.P. LAW BOC EVIDENCE
a. Meaning of DNA
“DNA” means deoxyribonucleic acid, which is
the chain of molecules found in every
nucleated cell of the body. The totality of an
individual’s DNA is unique for the individual,
except identical twins.
“DNA evidence” constitutes the totality of the
DNA profiles, results and other genetic
information directly generated from DNA
testing of biological samples.
“DNA testing” means verified and credible
scientific methods which include the extraction
of DNA from biological samples, the generation
of DNA profiles and the comparison of the
information obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty,
whether or not the DNA obtained from two or
more distinct biological samples originates
from the same person (direct identification) or
if the biological samples originate from related
persons (kinship analysis).
[Sec. 3, AM No. 06-11-5-SC or Rule on DNA
Evidence]
b. Application for DNA testing
order
The appropriate court may, at any time, either
motu proprio or on application of any person
who has a legal interest in the matter in
litigation, order a DNA testing.
Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
1. A biological sample exists that is relevant
to the case;
2. The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was
previously subjected to DNA testing, but
the results may require confirmation for
good reasons;
3. The DNA testing uses a scientifically valid
technique;
Page 475 of 525
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4. The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
5. The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy of integrity of the
DNA testing.
Exception: DNA testing may be done without
a prior court order, at the behest of any party
(including law enforcement agencies), before a
suit or proceeding is commenced [Sec. 4, Rule
on DNA Evidence]
Note: The death of the petitioner (putative
father) does not ipso facto negate the
application of DNA testing for as long as there
exist appropriate biological samples of his
DNA. The term “biological sample” means any
organic material originating from a person’s
body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes
blood, saliva, and other body fluids, tissues,
hairs and bones. [Ong v. Diaz, G.R. No.
1717113 (2007)]
c. Post-conviction DNA testing;
remedy
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final
and executory judgment provided that:
1. a biological sample exists;
2. such sample is relevant to the case; and
3. the testing would probably result in the
reversal or modification of the judgment of
conviction. [Sec. 6, Rule on DNA Evidence]
The medical evidence clearly established that
Carmela was raped and, consistent with this,
semen specimen was found in her. It is true
that Alfaro identified Webb in her testimony as
Carmela's rapist and killer but serious
questions had been raised about her credibility.
At the very least, there exists a possibility that
Alfaro had lied. xxx If, on examination, the DNA
of the subject specimen does not belong to
Webb, then he did not rape Carmela. It is that
simple. [Lejano v. People, G.R. No. 176864
(2010)].
U.P. LAW BOC EVIDENCE
Remedy if the results are favorable to the
convict
The convict or the prosecution may file a
petition for a writ of habeas corpus in the
court of origin if the results of the post-
conviction DNA testing are favorable to the
convict.
In case the court, after due hearing finds the
petition to be meritorious, if shall reverse or
modify the judgment of conviction and order
the release of the convict, unless continued
detention is justified for a lawful cause.
A similar petition may be filed either in the
Court of Appeals or the Supreme Court, or with
any member of said courts, which may conduct
a hearing thereon or remand the petition to the
court of origin and issue the appropriate orders.
[Sec. 10, Rule on DNA Evidence]
d. Assessment of probative value
of DNA evidence and
admissibility
In assessing the probative value of the DNA
evidence presented, the court shall consider
the following:
1. The chain of custody, including how the
biological samples were collected, how
they were handled, and the possibility of
contamination of the samples;
2. The DNA testing methodology, including
the procedure followed in analyzing the
samples, the advantages and
disadvantages of the procedure, and
compliance with the scientifically valid
standards in conducting the tests;
3. The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of
the analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
4. The reliability of the testing result, as
provided in Sec. 8 [Sec. 7, Rule on DNA
Evidence]
Page 476 of 525
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Note: The provisions of the Rules of Court
concerning the appreciation of evidence shall
apply suppletorily. [Sec. 7, Rule on DNA
Evidence]
e. Rules on evaluation of
reliability of the DNA testing
methodology
In evaluating the results of DNA testing, the
court shall consider the following:
1. The evaluation of the weight of matching
DNA evidence or the relevance of
mismatching DNA evidence;
2. The results of the DNA testing in the light
of the totality of the other evidence
presented in the case; and that
3. DNA results that exclude the putative
parent from paternity shall be conclusive
proof of non-paternity. If the value of the
Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be
considered as corroborative evidence. If
the value of the Probability of Paternity is
99.9% or higher there shall be a
disputable presumption of paternity. [Sec.
9, Rule on DNA Evidence]
It is not enough to state that the child’s DNA
profile matches that of the putative father. A
complete match between the DNA profile of the
child and the DNA profile of the putative father
does not necessarily establish paternity. For
this reason, following the highest standard
adopted in an American jurisdiction, trial courts
should require at least 99.9% as a minimum
value of the Probability of Paternity (“W”) prior
to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a
putative father compared to the probability of a
random match of two unrelated individuals.
Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%.
[Herrera v. Alba, G.R. No. 148220 (2005)]
U.P. LAW BOC EVIDENCE
D. DOCUMENTARY
EVIDENCE
1. Meaning of Documentary
Evidence
Consist of writings, recordings, photographs, or
any material containing letters, words, sounds,
numbers, figures, symbols, or their equivalent,
or other modes of written expressions offered
as proof of their contents. [Sec. 2, Rule 130]
If offered for some other purpose, they
constitute object evidence.
Photographs include still pictures, drawings,
stored images, x-ray films, motion pictures or
videos. [Sec. 2, Rule 130]
Note: 2019 Amendments expanded the
definition of documentary evidence.
2. Requisites for Admissibility
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a
competent witness;
d. The document must be formally offered in
evidence
[Riano 132, 2016 Ed.]
3. Original Document Rule
a. Meaning of the Rule
When the subject of inquiry is the contents of
a document, writing, recording, photograph, or
other record, no evidence is admissible other
than the original document itself [Sec. 3, Rule
130]
Note: Original document rule is a rule on
admissibility (competence). This rule replaced
the Best Evidence Rule.
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b. When Not Applicable
Where the issue is only as to whether such
document was actually executed, or exists, or
on the circumstances relevant to or
surrounding its execution, the best evidence
rule (now original document rule) does not
apply and testimonial evidence is admissible.
Any other substitutionary evidence is likewise
admissible without need for accounting for the
original.
[Republic v. Gimenez, G.R. No. 174673
(2016)]
Affidavits and depositions are considered as
not being the best evidence, hence not
admissible if the affiants or deponents are
available as witnesses [2 Regalado 721, 2008
Ed., citing 4 Martin 82]
The best evidence rule (now original document
rule) does not apply to all types of evidence. It
does not comprehend object and testimonial
evidence. [Riano, 133, 2016 Ed.]
c. Meaning of Original Document
and Duplicate
Original—the document itself or any
counterpart intended to have the same effect
by a person executing or issuing it.
An “original” of a photograph includes the
negative or any print therefrom.
If data is stored in a computer or similar
device, any printout or other output
readable by sight or other means, shown to
reflect the data accurately, is an “original”.
[Sec. 4, Rule 130]
Duplicate—counterpart produced by:
a. the same impression as the original, or
from the same matrix;
b. means of photography, including
enlargements and miniatures;
c. mechanical or electronic recording;
U.P. LAW BOC EVIDENCE
d. chemical reproduction; or
e. other equivalent techniques which
accurately reproduce the original.
[Sec. 2, Rule 130]
General Rule: A duplicate is admissible to the
same extent as an original.
Exceptions:
1. a general question is raised as to the
authenticity of the original; or
2. in the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of
the original.
[Sec. 4, Rule 130]
Note: 2019 Amendments made substantial
changes to Sec. 4, Rule 130
Carbon copies are deemed duplicate
(originals). [People v Tan, G.R. No. L-14257
(1959); Skunac v. Sylianteng, G.R. No. 205879
(2014)]
d. Secondary Evidence;
Summaries
The following are the exceptions to the original
document rule:
1. When the original is unavailable
a. When the original has been lost or
destroyed, or cannot be produced in court;
b. Upon proof of its execution or existence
and the cause of its unavailability; and
c. Without bad faith on the offeror’s part
What to present to prove contents (in this
order)
a. A copy;
b. A recital of its contents in some authentic
document; or
c. The testimony of witnesses
[Rule 130, Sec. 5]
Page 478 of 525
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In order that secondary evidence may be
admissible, there must be proof by satisfactory
evidence of:
1. due execution of the original;
2. loss, destruction, or unavailability of all
such originals; and
3. reasonable diligence and good faith in the
search for or attempt to produce the
original.
[Republic v. Marcos-Manotoc, G.R.
171701 (2012)]
The correct order of proof is existence,
execution, loss, and contents. [Republic v.
Cuenca, G.R. No. 198393 (2018)]
Due execution of the document should be
proved through the testimony of either:
a. the person or persons who executed it;
b. the person before whom its execution was
acknowledged; or
c. any person who was present and saw it
executed and delivered, or who, after its
execution and delivery, saw it and
recognized the signatures, or by a person
to whom the parties to the instruments had
previously confessed the execution thereof
[Director of Lands v. C.A., G.R. No. L-29575
(1971))
When more than one original copy exists, it
must appear that all of them have been lost,
destroyed, or cannot be produced in court
before secondary evidence can be given of any
one. A photocopy may not be used without
accounting for the other originals. [Citibank v.
Teodoro, G.R. No. 150905 (2003)].
The general rule concerning proof of a lost
instrument is, that reasonable search shall be
made for it in the place where it was last known
to have been, and, if such search does not
discover it, then inquiry should be made of
persons most likely to have its custody, or who
have some reasons to know of its
whereabouts. [Tan v. CA, G.R. No. L-56866
(1985)]
U.P. LAW BOC EVIDENCE
2. When the original is in the
custody or control of the
adverse party OR original
cannot be obtained by local
judicial processes or
procedures
What to present to prove contents
Same as when lost, destroyed, or cannot be
produced in court [Sec. 6, Rule 130]
3. When the contents of
documents, records,
photographs, or numerous
accounts are voluminous and
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
(“Summaries”)
What to present to prove contents
Chart, summary, or calculation of the contents
of such evidence
The originals shall be available for examination
or copying, or both, by the adverse party at a
reasonable time and place. The court may
order that they be produced in court. [Sec. 7,
Rule 130]
4. When the original is a public
record in the custody of a public
officer or is recorded in a public
office
What to present to prove contents
Certified copy issued by the public officer in
custody thereof [Sec. 8, Rule 130]
5. When original is outside the
jurisdiction of the court
When the original is outside the jurisdiction of
the court, secondary evidence is admissible.
[Regalado 784, 2008 Ed., citing PNB v. Olila,
G.R. No. L-8189 (1956), unreported]
Page 479 of 525
REMEDIAL LAW
4. Electronic Evidence
Scope
General Rule: The Rules on Electronic
Evidence (A.M. No. 01-7-01-SC) shall apply
whenever an electronic document or electronic
data message is offered or used in evidence
Exception: when otherwise provided [Sec. 1,
Rule 1, Rules on Electronic Evidence]
Cases covered
The Rules apply to all civil actions and
proceedings, as well as quasi-judicial and
administrative cases. [Sec. 2, Rule 1, Rules on
Electronic Evidence]
However, according to People v. Enojas [G.R.
No. 182835 (2010)], the Rules may also apply
to criminal cases.
a. Meaning of electronic evidence;
electronic data message
Electronic evidence—evidence, the use of
which is sanctioned by existing rules of
evidence, in ascertaining in a judicial
proceeding, the truth respecting a matter of
fact, which evidence is received, recorded,
transmitted, stored, processed, retrieved or
produced electronically [Sec. 3(u), Rule 1, IRR
of Cybercrime Prevention Act of 2012]
Electronic data message—information
generated, sent, received or stored by
electronic, optical or similar means [Sec. 1(g),
Rule 2, Rules on Electronic Evidence]
Electronic document—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,
U.P. LAW BOC EVIDENCE
readable by sight or other means, which
accurately reflects the electronic data message
or electronic document. For purposes of these
Rules, the term "electronic document" may be
used interchangeably with "electronic data
message". [Sec. 1(h), Rule 2, Rules on
Electronic Evidence]
Whenever a rule of evidence refers to the term
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document as defined in these Rules. [Sec. 1,
Rule 3, Rules on Electronic Evidence]
Electronic signature— any distinctive mark,
characteristic and/or sound in electronic form,
representing the identity of a person and
attached to or logically associated with the
electronic data message or electronic
document or any methodology or procedure
employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or
approving an electronic data message or
electronic document. For purposes of these
Rules, an electronic signature includes digital
signatures. [Sec. 1(j), Rule 2, Rules on
Electronic Evidence]
Digital signature— an electronic signature
consisting of a transformation of an electronic
document or an electronic data message using
an asymmetric or public cryptosystem such
that a person having the initial untransformed
electronic document and the signer's public key
can accurately determine:
a. whether the transformation was created
using the private key that corresponds to
the signer's public key; and
b. whether the initial electronic document had
been altered after the transformation was
made.
[Sec. 1(h), Rule 2, Rules on Electronic
Evidence]
Page 480 of 525
REMEDIAL LAW
Ephemeral electronic communication—
telephone conversations, text messages,
chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k), Rule 2, Rules
on Electronic Evidence]
b. Probative value of electronic
documents or evidentiary
weight; method of proof
Factors that may be considered in assessing
evidentiary weight:
1. The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests
and checks for accuracy and reliability of
the electronic data message or document,
in the light of all the circumstances as well
as any relevant agreement;
2. The reliability of the manner in which its
originator was identified;
3. The integrity of the information and
communication system in which it is
recorded or stored, including but not limited
to the hardware and computer programs or
software used as well as programming
errors;
4. The familiarity of the witness or the
person who made the entry with the
communication and information system;
5. The nature and quality of the
information which went into the
communication and information system
upon which the electronic data message or
electronic document was based; or
6. Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or
electronic data message
[Rule 1, Sec 7, Rules on Electronic
Evidence]
U.P. LAW BOC EVIDENCE
Method of proof
All matters relating to the admissibility and
evidentiary weight may be established by an
affidavit:
1. stating facts of direct personal knowledge
of the affiant or facts based on authentic
records; and
2. affirmatively showing the competence of
the affiant to testify on the matters
contained therein
[Sec. 1, Rule 9, REE]
The affiant shall be made to affirm the contents
of the affidavit in open court and may be cross-
examined as a matter of right [Sec. 2, Rule 9,
REE].
c. Authentication of electronic
documents and electronic
signatures
Burden of proof
The person seeking to introduce an electronic
document in any legal proceeding has the
burden of proving its authenticity in the manner
provided in this Rule. [Sec. 1, Rule 5, REE]
Manner of authentication of private
electronic document offered as authentic
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, REE]
Proof of electronically notarized document
A document electronically notarized in
accordance with the rules promulgated by the
Supreme Court shall be considered as a public
Page 481 of 525
REMEDIAL LAW
document and proved as a notarial document
under the Rules of Court. [Sec. 3, Rule 5, REE]
Manner of authentication of electronic
signature
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]
d. Electronic documents and
hearsay rule
General Rule: Hearsay rule does not apply to:
1. A memorandum, report, record or data
compilation of acts, events, conditions,
opinions, or diagnoses
2. made by electronic, optical or other similar
means
3. at or near the time of or from transmission
or supply of information
4. by a person with knowledge thereof
5. kept in the regular course or conduct of a
business activity and
6. such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means and
7. shown by the testimony of the custodian or
other qualified witnesses [Sec. 1, Rule 8,
REE]
Exception: The presumption may be
overcome by evidence of the untrustworthiness
of the source of information or the method or
circumstances of the preparation, transmission
or storage thereof. [Sec. 2, Rule 8, REE]
e. Audio, photographic, video and
ephemeral evidence
Audio, photographic and video evidence of
events, acts or transactions
U.P. LAW BOC EVIDENCE
1. Must be shown, presented or displayed to
the court; and
2. Shall be identified, explained or
authenticated by the person who made the
recording or by some other person
competent to testify on the accuracy
thereof [Sec. 1, Rule 11, REE]
Ephemeral electronic communications
1. Proven by the testimony of:
a. a person who was a party to the same;
or
b. has personal knowledge thereof
2. In the absence or unavailability of such
witnesses, other competent evidence may
be admitted
Recording of the telephone conversation or
ephemeral electronic communication
Same as audio, photo and video evidence
If recorded or embodied in an electronic
document, provisions of Rule 5 How Parol Evidence Can Be Introduced
(Authentication of electronic documents) shall
apply.
[Sec. 2, Rule 11, REE]
5. Parol Evidence Rule
Parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict
a complete and enforceable agreement
embodied in a document [2 Regalado 730,
2008 Ed.].
a. Application of the Parol
Evidence Rule
General Rule
When the terms of an agreement (including
wills) have been reduced to writing, it is
considered as containing all the terms agreed
upon and there can be, as between the parties
and their successors in interest, no evidence of
such terms other than the contents of the
written agreement [Sec. 10, Rule 130]
Page 482 of 525
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The parol evidence rule forbids any addition to
or contradiction of the terms of a written
instrument by testimony or other evidence
purporting to show that, at or before the
execution of the parties' written agreement,
other or different terms were agreed upon by
the parties, varying the purport of the written
contract. [Felix Plazo Urban Poor Settlers v.
Lipat, G.R. No. 182409 (2017)]
Where not applicable
It does not apply when third parties are
involved or those not privy to the written
instrument in question and does not base a
claim or assent a right originating in the
instrument [Lechugas v. C.A., G.R. No. L-
39972 & L-40300 (1986)]
b. When Parol Evidence Can Be
Introduced
General rule: Ground/s for presenting parol
evidence is put in issue in a verified pleading
[Sec. 10, Rule 130]
Exception: If the facts in the pleadings all lead
to the fact that it is being put in issue then the
Parol Evidence exception may apply [Sps.
Paras v. Kimwa Corporation, G. R. No. 171601
(2015)]
In sum, two (2) things must be established for
parol evidence to be admitted:
1. That the existence of any of the four (4)
exceptions has been put in issue in a
party's pleading or has not been objected
to by the adverse party; and
2. That the parol evidence sought to be
presented serves to form the basis of the
conclusion proposed by the presenting
party. [Sps. Paras v. Kimwa Corporation,
G. R. No. 171601 (2015)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

When Can Parole Evidence Can Be

Introduced 2. FAILURE OF THE WRITTEN
1. Intrinsic ambiguity, mistake or imperfection AGREEMENT TO EXPRESS THE
in the written agreement TRUE INTENT AND
2. Failure of the written agreement to express AGREEMENT OF THE PARTIES
the true intent and agreement of the parties THERETO
thereto
3. Validity of the written agreement Purpose
4. Existence of other terms agreed to by the To enable court to ascertain the true intention
parties or their successors-in-interest after of the parties [Tolentino v. Gonzales Sy Chiam,
the execution of the written agreement. G.R. No. 26085 (1927)]

1. INTRINSIC AMBIGUITY, 3. VALIDITY OF THE WRITTEN

MISTAKE OR IMPERFECTION IN AGREEMENT
THE WRITTEN AGREEMENT
Parol evidence may be admitted to show:
Intrinsic ambiguity (latent)– writing admits of 1. True consideration of a contract
two constructions, both of which are in 2. Want/Illegality of consideration
harmony with the language used [Ignacio v. 3. Incapacity of parties
4. Fictitious/absolutely simulated contract
Rementeria, 99 Phil. 1054 (Unrep.)]
5. Fraud in inducement
[2 Regalado 733, 2008 Ed.]
The document is clear on its face, but matters
outside the agreement create the ambiguity
c. Distinction Between the
(Ex. “I bequeath this land to my cousin
George.” However, the testator has two
Original Document Rule and
cousins named George) [Riano, 161, 2016 Ed.] Parol Evidence Rule

Note: American jurisprudence also refers to a Original Document Parol Evidence

situation where an ambiguity partakes of the Rule Rule
nature of both patent and latent ambiguity, that
is, an intermediate ambiguity, because the Contemplates the Presupposes that the
words of the writing, though seemingly clear situation wherein the original document is
and with a settled meaning, is actually original writing is not available in court
equivocal and admits of two interpretations. available and/or
Parol evidence, in such a case is admissible to there is a dispute as
clarify the ambiguity [2 Regalado 734, 2008 to whether said
Ed., citing 20 Am. Jur 1011] (Ex. “dollar” may writing is the original
mean USD, CAD, HKD, etc.)
Prohibits the Prohibits the varying
introduction of of the terms of a
Mistake refers to mistake of fact which is
substitutionary written agreement
mutual to the parties [BPI v. Fidelity and Surety,
evidence in lieu of
Co., G.R. No. L-26743 (1927)]
the original
document regardless
Imperfection includes an inaccurate
of WON it varies the
statement in the agreement or incompleteness
contents of the
in the writing, or the presence of inconsistent
original
provisions [2 Regalado 732, 2008 Ed.]

Page 483 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Applies to all kinds of Applies only to in force between the Philippines and the
writings, recordings, documents country of source
photographs, or any contractual in nature Note: This is a new addition to the original
material containing and to wills provision.
letters, words, 4. Public records, kept in the Philippines, of
sounds, numbers, private documents required by law to be
figures, symbols, or entered therein
their equivalent, or [Sec. 19, Rule 132]
other modes of
written expression A public document enjoys the presumption of
offered as proof of regularity. It is a prima facie evidence of the
their contents truth of the facts stated therein and a
conclusive presumption of its existence and
Can be invoked by Can be invoked only due execution. To overcome this presumption,
any party to an action when the there must be clear and convincing evidence
regardless of WON controversy is [Chua v. Westmont Bank, G.R. No. 182650
such party between the parties (2012)].
participated in the to the written
writing involved agreement, their A public document is self-authenticating and
privies or any party requires no further authentication in order to be
directly affected presented as evidence in court [Patula v.
thereby People, G.R. No. 164457 (2012)]
[2 Regalado 731, 2008 Ed.]
Private Documents
All other writings are private. [Sec. 20, Rule
6. Authentication and Proof of 130]
Documents
A private document is any other writing, deed,
a. Meaning of Authentication or instrument executed by a private person
without the intervention of a notary or other
Proving that the objects and documents person legally authorized by which some
presented in evidence are genuine and what it disposition or agreement is proved or set forth
purports to be. [Patula v. People, G.R. No. 164457 (2012)]

b. Classes of Documents c. When a Private Writing

Public Documents
1. Written official acts or records of the official
acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether of the Philippines or of a foreign
country
2. Notarial documents (except last wills and
testaments)
3. Documents considered public documents
under treaties and conventions which are
Requires Authentication; Proof
of Private Writing
General rule: Before any private document
offered as authentic is received in evidence, its
due execution and authenticity must be proved
[Sec. 20, Rule 132]
How to Prove Due Execution and
Authenticity
1. By anyone who saw the document
executed or written;

Page 484 of 525

U.P. LAW BOC EVIDENCE
2. By evidence of the genuineness of the
signature or handwriting of the maker; or
3. By other evidence showing its due
execution and authenticity. [Sec. 20, Rule
132]
Before a private document is admitted in
evidence, it must be authenticated either by:
1. the person who executed it,
2. the person before whom its execution was
acknowledged,
3. any person who was present and saw it
executed, or
4. who after its execution, saw it and
recognized the signatures, or
5. the person to whom the parties to the
instruments had previously confessed
execution thereof
[Malayan Insurance v. Phil. Nails and Wires
Corp., G.R. No. 138084 (2002)]
If a private writing itself is inserted officially into
a public record, its record, its recordation, or its
incorporation into the public record becomes a
public document, but that does not make the
private writing itself a public document so as to
make it admissible without authentication
[Republic v Sandiganbayan, G.R. No. 188881
(2014)]
d. When Evidence of Authenticity
of a Private Writing is Not
Required
The requirement of authentication of a private
document is excused only in four instances,
specifically:
1. when the document is an ancient one
which is:
a. More than 30 years old;
b. Produced from a custody in which it
would naturally be found if genuine;
and
c. Unblemished by any alterations or
circumstances of suspicion [Sec. 21,
Rule 132]
Page 485 of 525
REMEDIAL LAW
2. when the genuineness and authenticity of
the actionable document have not been
specifically denied under oath by the
adverse party;
3. when the genuineness and authenticity of
the document have been admitted; or
4. when the document is not being offered as
genuine.
e. Genuineness of a Handwriting
1. By any witness who believes it to be the
handwriting of such person because:
a. He/she has seen the person write; or
b. He/she has seen writing purporting to
be his/hers upon which the witness has
acted or been charged, and has thus
acquired knowledge of the handwriting
of such person [Sec. 22, Rule 132]
2. A comparison by the witness or the court of
the questioned handwriting, and admitted
genuine specimens thereof or proved to be
genuine to the satisfaction of the judge
[Sec. 22, Rule 132]
3. Expert evidence
[Sec. 52, Rule 130]
f. Public Documents as Evidence;
Proof of Official Records
Documents consisting of entries in public
records made in the performance of a duty by
a public officer are prima facie evidence of the
facts therein stated. All other public documents
are evidence, even against a third person, of
the fact which gave rise to their execution and
of the date of the latter [Sec. 23, Rule 132]
Proof of official record referred to in Sec.
19(a), Rule 132
1. By an official publication thereof; or
2. By a copy of the document attested by the
officer having legal custody of the record,
or his/her deputy
a. If record is not kept in the Philippines:
accompany with a certificate that such
officer has the custody
U.P. LAW BOC EVIDENCE
i. If the foreign country is a
contracting party to a treaty or
convention to which the Philippines
is also a party, or it is considered a
public document under the treaty or
convention: certificate or its
equivalent shall be in the form
prescribed therein, subject to
reciprocity
ii. If not a contracting party: certificate
made by a secretary of the
embassy or legation, consul
general, consul, vice-consul, or
consular agent, or any officer in the
foreign service of the Philippines
stationed in the country where the
record is kept
1. Must be authenticated by the
seal of his/her office
The certificate shall not be required when a
treaty or convention between a foreign country
and the Philippines has abolished the
requirement or has exempted the document
itself [Sec 24, Rule. 132]
Note: Substantial amendment to Sec 24, Rule
132
g. Attestation of a Copy of a
Document or Record
1. Must state that the copy is a correct copy
of the original or a specific part thereof, as
the case may be
2. Must be under the official seal of the
attesting officer, if there be any, or if he/she
be the clerk of a court having a seal, under
the seal of such court
[Sec. 25, Rule 132]
h. Public Record of Private
Documents
1. By the original record; or
Page 486 of 525
REMEDIAL LAW
2. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody
[Sec. 27, Rule 132]
See Sec. 25, Rule 132
i. Proof of Lack of Record
1. Written statement
a. Signed by an officer having the custody
of an official record or by his/her deputy
b. Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his/her
office
2. Certificate
a. Accompanying the written statement
b. Must state that that such officer has the
custody
[Sec. 28, Rule 132]
j. How a Judicial Record is
Impeached
Establish:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, with
respect to the proceedings
[Sec. 29, Rule 132]
k. Proof of Notarial Documents
Notarial Documents
Every instrument duly acknowledged or proved
and certified as provided by law which may be
presented in evidence without further proof, the
certificate of acknowledgment being prima
facie evidence of the execution of the
instrument or document involved [Sec. 30,
Rule 132]
Such notarized documents are evidence, even
against 3rd persons, of the facts which gave
rise to their execution and of the date of
execution [Sec. 23, Rule 132]
U.P. LAW BOC EVIDENCE
Note: Last wills and testaments are not public
documents [Sec. 19, Rule 132]
l. Alterations in a Document
When Applicable and Whose Burden of
Proof
The party producing a document as genuine
which has been altered and appears to have
been altered after its execution, in a part
material to the question in dispute, must
account for the alteration. If he or she fails to
do that, the document shall not be admissible
in evidence [Sec. 31, Rule 132]
How to Account for Alteration
Party producing a document as genuine may
show that the alteration
1. Was made by another, without his/her
concurrence;
2. Was made with the consent of the parties
affected by it;
3. Was otherwise properly or innocently
made; or
4. Did not change the meaning or language of
the instrument.
[Sec. 31, Rule 132]
m. Documentary Evidence in an
Unofficial Language
Not admissible unless accompanied by a
translation into English or Filipino. Parties or
their attorneys are directed to have the
translation prepared before trial [Sec. 33, Rule
132]
Where such document, not so accompanied
with a translation in English or Filipino, is
offered in evidence and not objected to, either
by the parties or the court, it must be presumed
that the language in which the document is
written is understood by all, and the document
is admissible in evidence. [Heirs of Doronio v.
Heirs of Doronio, G.R. No. 169454 (2007)]
Page 487 of 525
REMEDIAL LAW
E. TESTIMONIAL
EVIDENCE
1. Qualifications of a Witness
Witness
A witness is one who, being present,
personally sees or perceives a thing, a
beholder, spectator or eyewitness. One who
testifies to what he has seen or heard, or
otherwise observed [Herrera citing Black’s Law
Dictionary]
Qualifications of a Witness
All persons who can perceive, and perceiving,
can make known their perception to others,
may be witnesses.
Religious/political belief, interest in the
outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be
ground for disqualification [Sec. 21, Rule 130]
Basic Qualifications of a Witness
a. He/she can perceive
i. Corollary to perception is that the
witness must have personal knowledge
of the facts surrounding the subject
matter of his testimony [Sec. 22, Rule
130]
b. He/she can make known his perception
i. This means that he/she must have the
ability to remember and communicate
the remembered perception
c. He/she must take an oath or affirmation
[Sec. 1, Rule 132]
d. He/she must not possess any of the
disqualifications
A deaf-mute is competent to be a witness so
long as he/she has the faculty to make
observations and he/she can make those
observations known to others [People v.
Aleman y Longhas, G.R. No. 181539 (2013)]
Parties declared in default are not disqualified
from taking the witness stand for non-
disqualified parties. The law does not provide
U.P. LAW BOC EVIDENCE
default as an exception [Marcos v. Heirs of
Navarro, G.R. No. 198240 (2013)]
There is no substantive or procedural rule
which requires a witness for a party to present
some form of authorization to testify as a
witness for the party presenting him or her
[AFP Retirement and Separation Benefits
System v. Republic, G.R. No. 188956 (2013)]
When determined
Qualification of a witness is determined at the
time the said witness is produced for
examination or at the taking of their
depositions.
With respect to children of tender years,
competence at the time of the occurrence is
also taken into account.
In case person is convicted of a crime
General rule: Not disqualified
The fact that a witness has been convicted of
felony is a circumstance to be taken into
consideration as affecting his character and
credibility [Enrile, et al. v. Roberto, et al. G.R.
No. L-42309 (1935)]
Exception: Otherwise provided by law, e.g.
under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot
be a witness to a will:
a. Falsification of documents,
b. Perjury; or
c. False testimony
Competency of a Witness
One is qualified to take the witness stand if:
a. He is capable of perceiving at the time of
the occurrence of the fact; and
b. He came make his perception known
[Sec. 20, Rule 130]
Competency has reference to the basic
qualifications and the absence of
disqualifications of a witness to testify. [Riano,
185, 2016 Ed.]
Competency Presumed
A person who takes the witness stand is
presumed to possess the qualifications of a
Page 488 of 525
REMEDIAL LAW
witness. His competence may be questioned
by the other party by interposing an objection.
[Herrera]
Remedy for Errors or Questions on
Competence
Appeal, not certiorari, is the proper remedy for
the correction of any error as to the
competency of a witness committed by an
inferior court in the course of the trial [Icutanim
v. Hernandez, G.R. No. L-1709, June 8, 1948]
Credibility of a Witness
Credibility has nothing to do with the law or the
rules. It refers to the weight and trustworthiness
or reliability of the testimony. [Riano, 185, 2016
Ed.]
Questions concerning the credibility of a
witness are best addressed to the sound
discretion of the trial court as it is in the best
position to observe his demeanor and bodily
movements. [Llanto v. Alzona, 450 SCRA 288
(2005)]
2. Disqualifications of
Witnesses
EFFECT OF INTEREST IN THE SUBJECT
MATTER
A person is not disqualified by reason of his
interest in the subject matter.
Interest only affects credibility, not
competency.
EFFECT OF RELATIONSHIP
General rule: Mere relationship does not
impair credibility [People v. De Guzman, G.R.
130809 (2000)]
Exception:
To warrant rejection, it must be clearly shown
that:
a. Testimony was inherently improbable or
defective
b. Improper/evil motives had moved the
witness to incriminate falsely
[People v. Daen Jr., G.R. No. 112015 (1995)]
U.P. LAW BOC EVIDENCE
Note: Disqualification by reason of mental
incapacity or immaturity (previously Sec. 21,
Rule 130) and disqualification by reason of
death or insanity of adverse party aka Dead
Man’s Statute (previously Sec. 23, Rule 130)
have been deleted in the 2019 Revisions.
a. Disqualification by Reason of
Marriage
Also known as Marital Disqualification Rule
[Alvarez v. Ramirez, G.R. No. 143439 (2005)]
or Spousal Immunity
Elements
1. During their marriage
i. The marriage must be valid and
existing at the time of the offer of the
testimony
2. The husband or the wife cannot testify
against the other
i. The “other” spouse must be a party to
the action, either as a plaintiff or
defendant
ii. Note: 2019 Revision removed the
words “for or”
3. Without the consent of the affected spouse
[Sec. 23, Rule 130]
Except: Spouse may testify against the other
even without the consent of the latter
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants [Sec. 23, Rule
130]
Rationale
1. There is identity of interests between
husband and wife;
2. If one were to testify against the other,
there is a consequent danger of perjury;
3. Policy of the law is to guard the security
and confidence of private life, and to
prevent domestic disunion and
unhappiness; and
4. Where there is want of domestic tranquility,
there is danger of punishing one spouse
through the hostile testimony of the other
[Alvarez v. Ramirez, G.R. No. 143439 (2005)]
Page 489 of 525
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Duration
General rule: During their marriage [Sec. 23
Rule 130]
Exception: Where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and
tranquility which may be disturbed, the reason
based upon such harmony and tranquility fails.
In such a case, identity of interests disappears,
and the consequent danger of perjury based on
that identity is non-existent [Alvarez v.
Ramirez, G.R. No. 143439 (2005)]
Scope of Rule
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouse’s testifying to
any facts affecting the other however these
facts may have been acquired. [Herrera]
Waiver of Disqualification
If one spouse imputes the commission of a
crime against the other, the latter may testify
against the former. [People v. Francisco, G.R.
No. L-568 (1947)]
Spouses as Co-Accused
The other cannot be called as an adverse party
witness under this Rule
b. Disqualifications by Reason of
Privileged Communications;
Rule on Third Parties
Privilege
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera]
Privilege may only be invoked by the persons
protected thereunder. It may also be waived by
the same persons, either impliedly or
expressly.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Note: this Section was substantially amended 3. Any conduct constructed as implied
in the 2019 Revised Rules consent.
[Herrera]
i. Husband and Wife
The objection to the competency of the spouse
Also known as marital privilege must be made when he or she is first offered
as a witness. The incompetency is waived by
Rationale failure to make a timely objection to the
Confidential nature of the privilege; to preserve admission of spouse’s testimony [People v.
marital and domestic relations Pasensoy, G. R. No. 140634 (2002)]

Elements Marital
1. The husband or the wife Marital Privilege
Disqualification
2. During or after the marriage [Sec. 24(a)]
[Sec. 22]
3. Cannot be examined One spouse should Neither of the
4. Without the consent of the other be a party to the spouses need to be
5. As to any communication received in
case; a party;
confidence by one from the other during
the marriage Applies only if the
[Sec. 24(a), Rule 130] marriage is existing Does not cease even
at the time the after the marriage is
Except: Spouse may testify for or against the testimony is offered; dissolved; and
other even without the consent of the latter and
1. In a civil case by one against the other, or Constitutes a total Prohibition is limited
2. In a criminal case for a crime committed by prohibition on any to testimony on
one against the other or the latter’s direct testimony against confidential
descendants or ascendants. the spouse of the communications
[Sec. 24(a), Rule 130] witness between spouses
A widow of a victim allegedly murdered may
ii. Attorney and Client
testify as to her husband’s dying declaration as
to how he died since the same was not
Elements
intended to be confidential [US v. Antipolo,
As regards an attorney or any person
G.R. No. L-13109 (1918)]
reasonably believed by the client to be
licensed to engage in the practice of law
Scope: “Any communication”
1. Without the consent of his client
Includes utterances, either oral or written, or
2. Cannot be examined as to
acts [Herrera]
a. Any communication made by the client
to him/her, or
When not applicable
b. His/her advice given thereon in the
1. When the communication was not intended
course of, or with a view to,
to be kept in confidence
professional employment
2. When the communication was made prior
[Sec 24(b), Rule 130]
to the marriage
3. Waiver of the privilege
As regards an attorney’s secretary,
[Herrera]
stenographer, clerk, or other persons
assisting the attorney
Waiver
1. Without the consent of the client and
1. Failure of the spouse to object; or
his/her employer
2. Calling spouse as witness on cross
2. Cannot be examined
examination

Page 490 of 525

U.P. LAW BOC EVIDENCE
3. Concerning any fact the knowledge of
which has been acquired in such capacity
[Sec. 24(b), Rule 130]
Subject-matter of the privilege
1. Communications
2. Observations by the lawyer (regardless of
medium of transmission which may include
oral or written words and actions)
3. Tangible evidence delivered to a lawyer
4. Documents entrusted to a lawyer
[Herrera]
Exceptions
1. Furtherance of crime or fraud
a. If the services or advice of the lawyer
were sought or obtained
b. To enable or aid anyone
c. To commit or plan to commit
d. What the client knew or reasonably
should have known to be a crime or
fraud [Sec. 24(b)(i), Rule 130]
2. Claimants through same deceased
client
a. As to communication relevant to an
issue between parties who
b. Claim through the same deceased
client
c. Regardless of whether the claims are
by testate, intestate, or inter vivos
transaction [Sec. 24(b)(ii), Rule 130]
3. Breach of duty by lawyer or client
a. As to communications relevant to an
issue of breach of duty
i. By the lawyer to his/her client; or
ii. By the client to his/her lawyer [Sec.
24(b)(iii), Rule 130]
4. Document attested by the lawyer
a. As to communication relevant to an
issue concerning an attested document
b. The lawyer is an attesting witness [Sec.
24(b)(iv), Rule 130]
5. Joint clients
a. As to a communication relevant to a
matter of common interest between
two or more clients
b. The communication was made by any
of them to
c. The lawyer retained or consulted in
common
Page 491 of 525
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d. Communication is offered in an action
between any of the clients
e. Neither expressly agreed otherwise
[Sec. 24(b)(v), Rule 130]
Identity of Client
General rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity
of the client.
Exceptions:
1. When a strong probability exists that
revealing the name would implicate that
person in the very same activity for which
he sought the lawyer’s advice;
2. When disclosure would open the client to
liability;
3. When the name would furnish the only link
that would form the chain of testimony
necessary to convict
[Regala v. Sandiganbayan, G.R. No. 105938
and G.R. No. 108113 (1996)]
Duration of the privilege
In the absence of a statute, the privilege is
permanent. It may even be claimed by a client’s
executor or administrator after the client’s
death [Herrera]
iii. Physician and Patient
Elements
1. A physician, psychotherapist or person
reasonably believed by the patient to be
authorized to practice medicine or
psychotherapy
a. Psychotherapist:
i. Person licensed to practice
medicine engaged in the diagnosis
or treatment of a mental or
emotional condition; or
ii. A person licensed as a
psychologist by the government
while similarly engaged
2. In a civil case
a. Note: the privilege cannot be claimed in
a criminal case because the interest of
the public in a criminal prosecution
should be deemed more important than
the secrecy of the communication
[Riano, 211, 2016 Ed.]
U.P. LAW BOC EVIDENCE
3. Without the consent of the patient
4. Cannot be examined as to
a. Any confidential communication made
between the patient and his/her
physician or psychotherapist
b. For the purpose of diagnosis or
treatment
i. Of the patient’s physical, mental, or
emotional condition
ii. Including drug or alcohol addiction
Note: this privilege also applies to persons,
including members of the patient’s family, who
have participated in the diagnosis or treatment
of the patient under the direction of the
physician or psychotherapist. [Sec. 24(c), Rule
130]
Physician-patient relationship need not be
entered into voluntarily.
When not applicable
1. Communication was not given in
confidence
2. Communication was irrelevant to the
professional employment
3. Communication was made for an unlawful
purpose
4. Communication was intended for the
commission/concealment of a crime
5. Communication was intended to be made
public/divulged in court
6. When there was a waiver
7. When the doctor was presented as an
expert witness and only hypothetical
problems were presented to him [Lim v.
C.A., G.R. No. 91114 (1992)]
Waiver
1. Express waiver – may only be done by the
patient
2. Implied waiver
a. By failing to object
b. When the patient testifies
c. A testator procures an attending doctor
to subscribe his will as an attesting
witness
d. Disclosure of the privileged information
either made or acquiesced by the
privilege holder before trial
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REMEDIAL LAW
e. Where the patient examines the
physician as to matters disclosed in a
consultation
f. Also check Rule 28 on Physical and
Mental Examination [Rules on Civil
Procedure]
[Herrera]
Physician allowed to testify as an expert
A doctor is allowed to be an expert witness
when he does not disclose anything obtained
in the course of his examination, interview and
treatment of a patient. [Lim v. C.A., G.R. No.
91114 (1992)]
Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceased’s
physician, he cannot be permitted either
directly or indirectly to disclose facts that came
to his knowledge while treating the living
patient [Herrera, citing US Case Travelers’
Insurance Co. v. Bergeron]
Duration of privilege
The privilege survives the death of the patient.
[Riano, 212, 16th Ed.]
Hospital Records during discovery
procedure
To allow the disclosure during discovery
procedure of the hospital records would be to
allow access to evidence that is inadmissible
without the patient’s consent. Disclosing them
would be the equivalent of compelling the
physician to testify on privileged matters he
gained while dealing with the patient, without
the latter’s prior consent. [Chan v. Chan, G.R.
No. 179786 (2013)]
iv. Priest and Penitent
Elements
1. A minister or priest or person reasonably
believed to be so
2. Without the consent of the affected person
3. Cannot be examined as to any
a. communication; or
b. confession made to; or
U.P. LAW BOC EVIDENCE REMEDIAL LAW

c. advice given by him/her from communication that landed in the hands

4. in his/her professional character of third parties.
5. in the course of discipline enjoined by the
church to which the minister or priest c. Parental and Filial Privilege
belongs Rule
[Sec. 24(d), Rule 130]
Art. 315, CC
v. Public Officers Sec. 25,
Art. 215, FC (repealed
Rule 130
by FC)
Elements
1. A public officer No person
2. During or after his/her tenure shall be
3. Cannot be examined as to communications compelled to
made to him/her in official confidence testify No
No
4. When the court finds that the public interest against descendant
descendant
would suffer by the disclosure his/her shall be
can be
[Sec. 24(e), Rule 130] 1. Parents compelled,
compelled,
2. other in a criminal
Elements of “presidential communications in a criminal
direct case, to
privilege” case, to
ascenda testify
1. Must relate to a “quintessential and non- testify
nts against his
delegable presidential power;” against his
3. children parents and
2. Must be authored or “solicited and parents and
or grandparent
received” by a close advisor of the ascendants
President or the President himself; and 4. other s
3. Privilege may be overcome by a showing direct
of adequate need such that the information descend
sought “likely contains important evidence” ants
and by the unavailability of the information Except when
Except when
elsewhere [Neri v. Senate, G.R. No. such
180643 (2008)] such
testimony is
testimony is
indispensabl
Purpose indispensabl
e in a crime
The privilege is not intended for the protection e in a crime
1. against
of public officers but for the protection of the 1. against
the NONE
public interest. When no public interest would that person
descend
be prejudiced, this privilege cannot be invoked or
[Banco Filipino v. Monetary Board, G.R. No. ant or
2. by one
70054 (1986)). 2. by one
parent
parent
against the
Rule on Third Parties against
other.
The communication shall remain privileged, the other
even in the hands of a third person who may
have obtained the information, provided that Applicability
the original parties to the communication took The rule is applied to both civil and criminal
reasonable precaution to protect its cases [Herrera]
confidentiality. [Sec. 24, Rule 130 (last par.)]
The privilege cannot apply between
Note: This amendment is a stark contrast from stepmothers and stepchildren because the rule
the previous rule which removes the privilege applies only to direct ascendants and
descendants, a family tie connected by a

Page 493 of 525

U.P. LAW BOC EVIDENCE
common ancestry. [Lee v. C.A., G.R. No.
177861 (2010)]
A child can waive the filial privilege and choose
to testify against his father. The rule refers to a
privilege not to testify, which can be invoked or
waived like other privileges. [People v.
Invencion y Soriano, G.R. No. 131636 (2003)]
d. Trade Secrets
General Rule: A person cannot be compelled
to testify about any trade secret
Except: the non-disclosure will conceal fraud
or otherwise work injustice
When disclosure is directed, the court shall
take protective measures, as required by
1. the interests of the owner of the trade
secret;
2. the interests of the parties; and
3. the furtherance of justice
[Sec. 26, Rule 130]
Note: This is a new rule.
OTHER PRIVILEGED COMMUNICATION
NOT IN THE RULES OF COURT
1. Newsman’s Privilege
General rule: Publisher, editor or duly
accredited reporter of any newspaper,
magazine or periodical of general
circulation cannot be compelled to reveal
the source of any news-report or
information appearing in said publication
which was related in confidence to such
publisher, editor or reporter
Exception: Court or a House/Committee of
Congress finds that such revelation is
demanded by security of the State
Note: This is without prejudice to his liability
under the civil and criminal laws
[R.A. 53, as amended by R.A. 1477]
Page 494 of 525
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2. Information in Conciliation Proceedings
All information and statements made at
conciliation proceedings shall be treated as
privileged communications [Art. 233, Labor
Code]
3. Data Privacy Act
Personal information controllers may
invoke the principle of privileged
communication over privileged information
that they lawfully control or process.
Subject to existing laws and regulations,
any evidence gathered on privileged
information is inadmissible [Sec. 15, RA
10173]
4. Food and Drug Administration Act
Prohibits the use of a person to his own
advantage, or revealing, other than to the
Secretary of Health or officers or
employees of the Department of Health or
to the courts when relevant in any judicial
proceeding under this Act, any information
acquired under authority Board of Food
Inspection and Board of Food and Drug, or
concerning any method or process which
as a trade secret is entitled to protection
[Secs. 9, 11 (f) and 12, RA 3720]
3. Examination of a Witness
Shall be done
a. in open court, and
b. under oath or affirmation.
Answers shall be given orally, unless the
a. witness is incapacitated to speak, or
b. question calls for a different mode of
answer
[Sec. 1, Rule 132]
Proceedings to be recorded, including
a. the questions propounded to a witness and
his answers thereto
b. the statements made by the judge or any of
the parties, counsel, or witnesses with
reference to the case
by means of shorthand or stenotype or by other
means of recording found suitable by the court
[Sec. 2, Rule 132]
U.P. LAW BOC EVIDENCE
Transcript deemed prima facie correct
A transcript of the record of the proceedings
made by the official stenographer, stenotypist
or recorder and certified as correct by him shall
be deemed prima facie a correct statement of
such proceedings [Sec. 2, Rule 132]
Exclusion and separation of witnesses
The court, motu proprio or upon motion, shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses
However, this rule does NOT AUTHORIZE
exclusion of:
a. a party who is a natural person;
b. a duly designated representative of a
juridical entity which is a party to the case;
c. a person whose presence is essential to
the presentation of the party’s cause; or
d. a person authorized by a statute to be
present.
The court may also cause witnesses to be kept
separate and to be prevented from conversing
with one another, directly or through
intermediaries, until all shall have been
examined. [Sec. 15]
a. Rights and Obligations of a
Witness
RIGHTS
1. To be protected from irrelevant, improper,
or insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the interests
of justice require;
3. To only be examined as to matters
pertinent to the issue;
4. Not to give an answer which will tend to
subject him/her to a penalty for an offense
a. Unless: otherwise provided by law
Example of this right: Sec. 8, R.A. 1379 and
other immunity statutes which grant the
witness immunity from criminal prosecution
for offenses admitted
5. Not to give an answer which will tend to
degrade his/her reputation
a. Exceptions:
Page 495 of 525
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i. the answer is the very fact in issue;
ii. the answer is a fact from which the
fact in issue would be presumed
b. Exception to the exception: he/she
must answer to the fact of his/her
previous final conviction for an offense
[Sec. 3, Rule 132]
OBLIGATION
A witness must answer questions, although
his/her answer may tend to establish a claim
against him/her. [Sec. 3, Rule 132]
One-Day Examination of Witness Rule
A witness has to be fully examined in one (1)
day only. It shall be strictly adhered to subject
to the courts' discretion during trial on whether
or not to extend the direct and/or cross-
examination for justifiable reasons. [A.M. No.
03-1-09-SC]
b. Order in the Examination of an
Individual Witness
1. Direct examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross examination by the opponent.
[Sec. 4, Rule 132]
Direct examination — examination-in-chief of
a witness by the party presenting him/her on
the facts relevant to the issue [Sec. 5, Rule
132]
Cross-examination — the witness may be
cross examined by the adverse party on any
relevant matter with sufficient fullness and
freedom
• Purpose: to test the witness’ accuracy,
truthfulness and freedom from interest or
bias, or the reverse; and to elicit all
important facts bearing upon the issue
[Sec. 6, Rule 132]
Right to cross-examination
Cross-examination is the most reliable and
effective way known of testing the credibility
and accuracy of testimony. This is an essential
element of due process. [Herrera, citing Alford
v. US (1931)]
U.P. LAW BOC EVIDENCE
The right to cross-examine under the
constitution is superior to technical rules on
evidence. [Herrera, citing People v. Valero,
G.R. No. L-45283-84 (1982)]
Effect of denial of right to cross-examine
Most courts require that the testimony given on
direct examination be stricken off – provided
the unavailability of the witness is through no
fault of the party seeking to cross-examine.
[Herrera]
Cross-examination must be completed or
finished. When cross-examination is not and
cannot be done or completed due to causes
attributable to the party offering the witness,
the uncompleted testimony is thereby rendered
incompetent. [Herrera, citing Ortigas, Jr. v.
Lufthansa German Airlines, G.R. No. L-28773
(1975)]
Re-direct examination—re-examination of
the witness by the party calling him/her
• Purpose: to explain or supplement his/her
answers given during the cross-
examination
• Questions on matters not dealt with during
the cross-examination may be allowed by
the court in its discretion. [Sec. 7, Rule 132]
Re-cross-examination — re-cross-
examination of the witness by the adverse
party on matters stated in his/her re-direct and
on other matters allowed by the court in its
discretion [Sec. 8, Rule 132]
Recalling the witness
After examination by both sides has been
concluded, the witness cannot be recalled
without leave of court. [Sec. 9, Rule 132]
Why conducted
1. Particularly identified material points were
not covered in cross-examination
2. Particularly described vital documents
were not presented to the witness
3. Cross-examination was conducted in so
inept a manner as to result in a virtual
absence thereof
[People v. Rivera, G.R. No. 98376 (1991)]
Page 496 of 525
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c. Leading and Misleading
Questions
Leading question: A question which suggests
to the witness the answer which the examining
party desires
General rule: Not allowed
Except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party
[Sec. 10, Rule 132]
Misleading question: One which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he/she has previously
stated. It is not allowed. [Sec. 10, Rule 132]
d. Impeachment of Witness
i. Adverse party’s witness
a. By contradictory evidence;
b. By evidence that his/her general reputation
for truth, honesty or integrity is bad;
c. By evidence that he/she has made at other
times statements inconsistent with his
present testimony
But NOT by evidence of particular wrongful
acts, EXCEPT that it may be shown by the
examination of the witness, or the record of the
judgment, that he/she has been convicted of an
offense.
[Sec. 11, Rule 132]
U.P. LAW BOC EVIDENCE
ii. By evidence of conviction of crime
a. By evidence that he/she has been
convicted by final judgment of a crime:
i. Punishable by a penalty in excess of
one year; or
ii. Involving moral turpitude,
regardless of penalty
HOWEVER, evidence of conviction is not
admissible if the conviction has been subject
of an amnesty or annulment of the conviction.
[Sec. 12, Rule 132]
Note: This is a new rule.
iii. Own witness
Party may not impeach his own witness
EXCEPT with respect to
a. An unwilling or hostile witness; or
b. A witness who is an adverse party or an
officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party
When witness considered unwilling or
hostile
Only if so declared by the court upon adequate
showing of his/her
a. adverse interest
b. unjustified reluctance to testify, or
c. having misled the party into calling him/her
to the witness stand
How impeached: The unwilling or hostile
witness so declared, or the witness who is an
adverse party, may be impeached by the party
presenting him/her in all respects as if he/she
had been called by the adverse party, except
by evidence of his bad character. He/she
may also be impeached and cross-examined
by the adverse party, but such cross-
examination must only be on the subject matter
of his examination-in-chief.
[Sec. 13, Rule 132]
Page 497 of 525
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iv. How the witness is impeached by
evidence of inconsistent
statements
a. The statements must be related to him/her,
with the circumstances of the times and
places and the persons present, and
b. He/she must be asked whether he/she
made such statements, and if so, allowed
to explain them.
c. If the statements be in writing, they must be
shown to the witness before any question
is put to him/her concerning them
[Sec. 14, Rule 132]
e. Referral of Witness to
Memorandum
When witness may refer to memorandum
a. A witness may be allowed to refresh
his/her memory respecting a fact
1. by anything written or recorded
2. by himself/herself or under his/her
direction
3. at the time when the fact occurred, or
immediately thereafter, or at any other
time when the fact was fresh in his/her
memory and
4. he/she knew that the same was
correctly written or recorded
5. the writing or record must be produced
and may be inspected by the adverse
party, who may, if he/she chooses,
cross-examine the witness upon it, and
may read it in evidence.
b. A witness may also testify from such a
writing or record, though he/she retain no
recollection of the particular facts, if
he/she is able to swear that the writing or
record correctly stated the transaction
when made; but such evidence must be
received with caution.
[Sec. 16, Rule 132]
When part of transaction, writing or record
given in evidence, the remainder
admissible.
a. When part of an act, declaration,
conversation, writing or record is given in
evidence by one party, the whole of the
U.P. LAW BOC EVIDENCE
same subject may be inquired into by the
other
b. When a detached act, declaration,
conversation, writing or record is given in
evidence, any other act, declaration,
conversation, writing or record necessary
to its understanding may also be given in
evidence
[Sec. 17, Rule 132]
Right to inspect writing shown to witness
Whenever a writing is shown to a witness, it
may be inspected by the adverse party [Sec.
18, Rule 132]
f. Examination of a child witness
(A.M. No. 004-07-SC)
i. Applicability of the rule
Unless otherwise provided, this rule shall
govern the examination of a child witness who
are:
1. victims of a crime;
2. accused of a crime; and
3. witnesses to a crime
Where applicable: all criminal and non-criminal
proceedings involving child witnesses [Sec. 1,
Rule on Examination of a Child Witness]
ii. Meaning of “child witness"
Child witness—any person who at the time of
giving testimony is:
1. below the age of 18 years; or
2. in child abuse cases, may be over 18 but is
found by the court unable to fully take care
of himself or protect himself from abuse,
neglect, cruelty, exploitation, or
discrimination because of a physical or
mental disability or condition
[Sec. 4 (a), Rule on Examination of a Child
Witness]
iii. Competency of a child witness
General Rule: Every child is presumed
qualified to be a witness.
Page 498 of 525
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Exception: the court shall conduct a
competency examination of a child, motu
proprio or on motion of a party when it finds that
substantial doubt exists regarding the child’s
ability to:
1. Perceive
2. Remember
3. Communicate
4. Distinguish from falsehood, or
5. Appreciate the duty to tell the truth in court
[Sec. 6]
Proof of necessity
The party seeking a competency examination
must present proof of its necessity. The age of
the child, by itself, is not a sufficient basis. [Sec.
6(a)]
Burden of proof lies with the party challenging
the child’s competence. [Sec. 6(b)]
Conduct of examination
1. Conducted only by the judge
2. Counsel for the parties may submit
questions to the judge
a. It is discretionary upon the judge if he
will ask the child the submitted
questions [Sec. 6(d)]
Developmentally appropriate questions
The questions asked shall:
1. be appropriate to the age and
developmental level of the child;
2. not be related to the issues at trial; and
3. focus on the ability of the child to
remember, communicate, distinguish
between truth and falsehood, and
appreciate the duty to testify truthfully.
[Sec. 69(d)]
Continuing duty to assess competence
The court has the duty of continuously
assessing the competence of the child
throughout his testimony [Sec. 6(f)]
iv. Examination of a child witness
Done in open court
General Rule: Given orally
U.P. LAW BOC EVIDENCE
Exception: If the witness is incapacitated to
speak or the question calls for a different mode
of answer
[Sec. 8]
v. Live-link TV testimony of a child
witness
The prosecutor, counsel or guardian ad litem
may apply for an order that the testimony of the
child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television.
Prerequisite for applying: the guardian ad
litem shall consult the prosecutor or counsel
and defer to their judgment regarding the
necessity of applying for an order.
If the guardian is convinced that the decision of
the prosecutor or counsel not to apply will
cause the child serious emotional trauma, he
himself may apply for the order. [Sec. 25(a)]
When applied for: at least 5 days before the
trial date UNLESS the court finds on the record
that the need for such an order was not
reasonably foreseeable [Sec. 25(a)]
The court shall issue an order granting or
denying the use of live-link television and
stating the reasons therefor. [Sec. 25(e)]
When granted: if there is a substantial
likelihood that the child would suffer trauma
from testifying in the presence of the accused,
his counsel or the prosecutor
a. the trauma must be of a kind which would
impair the completeness or truthfulness of
the testimony of the child [Sec. 25(f)]
The testimony of the child shall be preserved
on videotape, digital disc, or other similar
devices which shall be made part of the court
record and shall be subject to a protective order
as provided in Sec. 31(b). [Sec. 25(h)]
Page 499 of 525
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vi. Videotaped deposition of a child
witness
The prosecutor, counsel or guardian ad litem
may apply for an order that a deposition be
taken of the testimony of the child and that it be
recorded and preserved on videotape.
Prerequisite for applying: Same as
application for live-link TV testimony in Sec.
25(a)
When granted: If the court finds that the child
will not be able to testify in open court at trial
The judge shall preside at the videotaped
deposition of the child.
Objection to deposition testimony or evidence,
or parts thereof, and the grounds of objection
shall be stated and ruled upon at the time of the
taking of the deposition.
Who else is allowed in the proceeding:
a. prosecutor
b. defense counsel
c. guardian ad litem
d. accused, subject to subsection (e)
1. if there is evidence that the child is
unable to testify in the physical
presence of the accused, the court may
direct the latter to be excluded from the
room where the deposition is
conducted
2. in case of exclusion of the accused, the
court shall order the testimony of the
child to be taken by live-link TV in
accordance with Sec. 25
3. it is not necessary for the child to be
able to view an image of the accused
e. other persons whose presence is
determined by the court to be necessary for
the welfare and well-being of the child
f. one or both of his support persons, the
facilitator and interpreter, if any
g. court stenographer; and
h. persons necessary to operate the
videotape equipment [Sec. 27(c)]
U.P. LAW BOC EVIDENCE
Rights of the accused during trial, especially
the right to counsel and confront and cross-
examine the child, shall NOT BE VIOLATED
during the deposition.
If, at the time of the trial, the court finds that the
child is unable to testify for a reason stated in
Sec. 25(f) of this Rule or is unavailable for any
reason described in Rule 23, Sec 4(c) of the
1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition
of the child in lieu of his testimony at the trial.
[Sec. 27]
vii. Hearsay exception in child abuse
cases
Applicability: Any criminal and non-criminal
proceeding
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence subject to the following
rules:
1. Before the hearsay statement may be
admitted, its proponent shall make known
to the adverse party the intention to offer
such statement and its particulars
a. Reason: to provide him a fair
opportunity to object
b. if the child is available: the court shall,
upon motion of the adverse party,
require the child to be present at the
presentation of the hearsay statement
for cross-examination
c. if the child is unavailable: the fact of
unavailability must be proved by the
opponent [Sec. 28(a)]
2. The court shall consider the time, content
and circumstances of the hearsay
statement which provide sufficient indicia
of reliability
a. factors to consider:
i. motive to lie
ii. general character of declarant child
iii. whether more than one person
heard the statement
iv. whether the statement was
spontaneous
Page 500 of 525
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v. timing of the statement and the
relationship between the declarant
child and witness
vi. cross-examination could not show
the lack of knowledge of the
declarant child
vii. possibility of faulty recollection of
the declarant child is remote
viii. the circumstances surrounding the
statement are such that there is no
reason to suppose the declarant
child misrepresented the
involvement of the accused [Sec.
28(b)]
When a child is considered unavailable:
a. He/she is deceased, suffers from mental
infirmity, lack of memory, mental illness, or
will be exposed to severe psychological
injury; or
b. He/she is absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable means [Sec.
28(c)]
Condition for admissibility if child is
unavailable: His/her hearsay testimony must
be corroborated by other admissible evidence
[Sec. 28(d)]
viii. Sexual abuse shield rule
General Rule: The following evidence is
inadmissible in any criminal proceeding
involving alleged child sexual abuse:
1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
2. Evidence to prove the sexual
predisposition of the alleged victim
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person other than the accused was
the source of the semen, injury, or other
physical evidence shall be ADMISSIBLE
U.P. LAW BOC EVIDENCE
Requirements for party intending to offer
such evidence:
1. Written motion filed at least 15 days before
trial, specifically describing the evidence
and stating the purpose for which it is
offered
a. Exception: if the court, for good cause,
requires a different time for filing or
permits filing during trial
2. Motion served on all parties and the
guardian ad litem at least 3 days before the
hearing of the motion
Hearing necessary
Before admitting such evidence, the court must
conduct a hearing in chambers and afford the
child, his/her guardian ad litem, the parties, and
their counsel a right to attend and be heard.
The motion and the record of the hearing must
be sealed and remain under seal and protected
by a protective order.
The child shall not be required to testify at the
hearing in chambers EXCEPT if he consents.
[Sec. 30]
ix. Protective orders
Coverage: Any videotape or audiotape of a
child that is part of the court record
Provisions of the order:
1. Tapes may be viewed only by the parties,
their counsel, their expert witnesses, and
the guardian ad litem
2. No tape, or any portion thereof, shall be
divulged by any person mentioned in Sec.
31(a) to any other person, except as
necessary for the trial
a. Persons in Sec. 31(a): members of the
court staff for administrative use, the
prosecuting attorney, defense counsel,
guardian ad litem, agents of
investigating law enforcement
agencies, and other persons as
determined by the court
3. No person shall be granted access to the
tape, its transcript, or any part thereof,
UNLESS:
Page 501 of 525
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a. he signs a written affirmation that he
has received and read a copy of the
protective order;
b. he submits to the jurisdiction of the
court with respect to the protective
order; and
c. in case of violation, he will be subject to
the contempt power of the court
4. Each of the cassette tapes and transcripts
thereof made available to the parties, their
counsel, and their respective agents shall
bear the following cautionary notice:
a. “This object or document and the
contents thereof are subject to a
protective order issued by the court in
(case title), (case number). They shall
not be examined, inspected, read,
viewed, or copied by any person, or
disclosed to any person, except as
provided in the protective order. No
additional copies of the tape or any of
its portion shall be made, given, sold,
or shown to any person without prior
court order. Any person violating such
protective order is subject to the
contempt power of the court and other
penalties prescribed by law.”
5. No tape shall be given, loaned, sold, or
shown to any person EXCEPT as ordered
by the court
6. Within 30 days from receipt, all copies of
the tape and any transcripts thereof shall
be returned to the clerk of court for
safekeeping UNLESS the period is
extended by the court on motion of a party
7. This protective order shall remain in full
force and effect until further order of the
court. [Sec. 31(b)]
Additional protective order
The court may, motu proprio or on motion of
any party, the child, his parents, legal guardian,
or the guardian ad litem, issue additional
orders to protect the privacy of the child. [Sec.
31(c)]
U.P. LAW BOC EVIDENCE
4. Admissions and Confessions
a. Admission by a Party
Elements
1. The act, declaration or omission
2. Of a party
3. As to a relevant fact
4. Against his or her interest
[Sec. 27, Rule 130]
5. Made out of court
(Those made in court are governed by Sec.
4, Rule 129.) [2 Regalado 754, 2008 Ed.]
6. Offered and presented in court in an
admissible manner (e.g. non-hearsay)
EXTRAJUDICIAL ADMISSIONS
Any statement of fact made by a party against
his interest or unfavorable to the conclusion for
which he contends or is inconsistent with the
facts alleged by him. [2 Regalado 754, 2008
Ed., citing 31 C.J.S. 1022]
A statement by the accused, direct or implied,
of facts pertinent to the issue, and tending in
connection with proof of other facts, to prove
his guilt. [People v. Lorenzo, G.R. No. 110107
(1995)]
Requisites for Admissibility
1. They must involve matters of fact;
2. They must be categorical and definite;
3. They must be knowingly and voluntarily
made; and
4. Is adverse to admitter’s interests
[2 Regalado 754, 2008 Ed.]
Effect of an Admission
It may be given in evidence against the
admitter. [Sec. 27, Rule 130]
Flight from justice is an admission by conduct
and circumstantial evidence of consciousness
of guilt. [US v. Sarikala, G.R. No. L-12988
(1918)]
Rationale
No man would make any declaration against
himself unless it is true. [Republic v. Bautista,
G.R. No. 169801 (2007)]
Page 502 of 525
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Judicial and Extrajudicial Admissions
Judicial Extrajudicial
Made in connection
with a judicial Any other admission
proceeding in which [Secs. 27 and 33,
it is offered [Sec. 4, Rule 130]
Rule 129]
Must still be formally
offered in evidence
Does not require
(Note the language
proof [Sec. 4, Rule
of Sec. 27, Rule 130:
129]
“may be given in
evidence”)
May be conclusive
unless contradicted Rebuttable
[Sec. 4, Rule 129]
May be written, oral express or implied
[Sec. 4, Rule 129; Sec. 27, Rule 130]
b. Res Inter Alios Acta Rule
“Res inter alios acta alteri nocere non debet”—
Things done between strangers ought not to
injure those who are not parties to them
[Black’s Law Dictionary]
Two Branches
1. First branch: Admission by a third party
[Sec. 29, Rule 130]
2. Second branch: Similar acts as evidence
[Sec. 35, Rule 130]
[2 Regalado 758, 774, 2008 Ed.]
c. Admission by a Third Party
General rule: The rights of a party cannot be
prejudiced by an act, declaration, or omission
of another [Sec. 29, Rule 130]
Admission by a third party is inadmissible as
against another. The act, declaration or
omission of another is generally irrelevant, and
that in justice, a person should not be bound by
the acts of mere unauthorized strangers.
The rule is well-settled that a party is not bound
by any agreement of which he has no
knowledge and to which he has not given his
consent and that his rights cannot be
U.P. LAW BOC EVIDENCE
prejudiced by the declaration, act or omission
of another, except by virtue of a particular
relation between them.
Exceptions:
1. Partner’s or Agent’s Admission [Sec. 30,
Rule 130]
2. Admission by conspirator [Sec. 31, Rule
130]
3. Admission by privies [Sec. 32, Rule 130]
Basis of exception
A third party may be so united in interest with
the party-opponent that the other person’s
admissions may be receivable against the
party himself. The term “privy” is the orthodox
catchword for the relation.
Note: the res inter alios acta rule only applies
to extrajudicial declarations (admissions and
confessions). However, when the declarant
repeats his extrajudicial declaration in open
court and his co-accused are given the
opportunity to cross-examine him, the
declaration becomes admissible against the
co-accused.
d. Admission by a Co-Partner or
Agent
Requisites for Admissibility
1. The act or declaration
2. Of a partner or agent
a. authorized by the party to make a
statement concerning the subject; or
b. within the scope of his/her authority
3. During the existence of the partnership or
agency,
4. May be given in evidence against such
party
5. After the partnership or agency is shown by
evidence other than such act or declaration
(evidence aliunde)
[Sec. 30, Rule 130]
This rule also applies to the act or declaration
of a joint owner, joint debtor, or other persons
jointly interested with the party [Sec. 30, Rule
130]
Page 503 of 525
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Statements made after partnership is
dissolved
As a rule, statements made after the
partnership has been dissolved do not fall
within the exception, but where the admissions
are made in connection with the winding up
of the partnership affairs, said admissions
are still admissible as the partner is acting as
an agent of his co-partners in said winding up
[2 Regalado 759, 2008 Ed.]
Joint interests
1. The joint interest must be first made to
appear by evidence other than the
admission itself
2. The admission must relate to the subject-
matter of joint interest [Herrera]
The word “joint” must be construed according
to its meaning in the common law system, that
is, in solidum for the whole. [Jaucian v. Querol,
G.R. No. L-11307 (1918)]
A mere community of interests between
several persons is not sufficient to make the
admissions of one admissible against all.
[Herrera]
Just like in partnership and agency, the interest
must be a subsisting one unless for the
admission to be admissible. [Herrera]
e. Admission by a Conspirator
Requisites for Admissibility
1. The act or declaration
2. Of a conspirator
3. In furtherance of the conspiracy and during
its existence,
4. May be given in evidence against the co-
conspirator
5. After the conspiracy is shown by evidence
other than such act or declaration
(evidence aliunde)
[Sec. 31, Rule 130]
An exception to the res inter alios acta rule is
an admission made by a conspirator under
Sec. 30, Rule 130. [People v. Cachuela, G.R.
No. 191752 (2013)]
U.P. LAW BOC EVIDENCE
Existence of the conspiracy may be inferred
from acts of the accused [People v. Belen, G.R.
No. L-13895 (1963)).
Applies only to extra-judicial statements, not to
testimony given on the stand [People v.
Serrano, G.R. No. L-7973 (1959)] or at trial
where the party adversely affected has the
opportunity to cross-examine. [People v.
Palijon, G.R. No. 123545 (2000]
As regards extrajudicial admissions AFTER
termination of conspiracy, BEFORE trial
General rule: Not admissible [People v.
Badilla, G.R. No. 23792 (1926); People v.
Yatco, G.R. No. L-9181 (1955)]
Exceptions:
1. Made in the presence of the co-conspirator
who expressly/impliedly agreed (tacit
admission)
2. Facts in admission are confirmed in the
independent extrajudicial confessions
made by the co-conspirators after
apprehension [People v. Badilla, G.R. No.
23792 (1926)]
3. As a circumstance to determine credibility
of a witness [People v. Narciso, G.R. No.
L-24484 (1968)]
4. Circumstantial evidence to show the
probability of the latter’s participation
[2 Regalado 761, 2008 Ed.]
Doctrine of interlocking confessions
Extrajudicial statements of co-accused may be
taken as circumstantial evidence against
the person implicated to show the
probability of the latter’s actual
participation, provided that the statements are
made by several accused are:
1. Made without collusion
2. Identical with each other in their essential
details;
3. Corroborated by other evidence on record
[People v. Molleda, G.R. No. L-34248 (1978),
People v. Tuniaco, G.R. No. 185710 (2010)]
Note: Interlocking confessions may also be
used as evidence aliunde to prove conspiracy
Page 504 of 525
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Applicable to extrajudicial statements
The evidence adduced in court by the
conspirators as witnesses are not declarations
of conspirators, but direct testimony to the acts
to which they testify. This is applicable only
when it is sought to introduce extrajudicial
declarations and statements of the co-
conspirators [Herrera, citing People v.
Vizcarra, G.R. No. L-38859 (1982)]
f. Admission by Privies
Privies
Persons who are partakers or have an interest
in any action or thing, or any relation to another
[Riano 262, 2016 Ed., citing Black’s Law
Dictionary]
It denotes the idea of succession, not only by
right of heirship and testamentary legacy, but
also that of succession by singular title, derived
from acts inter vivos, and for special purposes.
(example: assignee of a credit and one
subrogated to it are privies.) [Alpuerto v. Perez
Pastor and Roa, G.R. No. L-12794 (1918)]
Requisites for Admissibility
1. One derives title to property from another
2. The act, declaration, or omission
a. of the latter (the person from whom title
is derived)
b. while holding the title
c. in relation to the property
3. is evidence against the former (one who
derives title from another)
[Sec. 32, Rule 130]
g. Admission by Silence
An act or declaration made in the presence and
within the hearing or observation of a party who
does or says nothing when the act or
declaration is such as naturally to call for action
or comment if not true, and when proper and
possible for him/her to do so, may be given in
evidence against him/her. [Sec. 33, Rule 130]
Requisites: When silence is deemed an
admission
1. Person heard or understood the statement;
2. That he was at a liberty to make a denial;
U.P. LAW BOC EVIDENCE
3. That the statement was about a matter
affecting his rights or in which he was
interested and which naturally calls for a
response;
4. That the facts were within his knowledge;
and
5. That the fact admitted from his silence is
material to the issue
[People v. Paragsa, G.R. No. L-44060 (1978)]
This rule applies even when a person was
surprised in the act [US v. Bay, G.R. No. 9341
(1914)] or even if he was already in the custody
of the police [People v. Ancheta, G.R. No.
143935 (2004)]
When not applicable
1. Statements adverse to the party were
made in the course of an official
investigation [U.S. v. De la Cruz, G.R. No.
4740 (1908)], as where he was pointed out
in the course of a custodial investigation
and was neither asked to reply nor
comment on such imputations [People v.
Alegre, G.R. No. L-30423 (1979)]
2. Party had justifiable reason to remain
silent, e.g. acting on advice of counsel
[2 Regalado 763, 2008 Ed.]
Failure to file a comment
Respondent’s failure to file a comment despite
all the opportunities afforded him constituted a
waiver of his right to defend himself. In the
natural order of things, a man would resist an
unfounded claim or imputation against him. It is
generally contrary to human nature to remain
silent and say nothing in the face of false
accusations. As such, respondents' silence
may be construed as an implied admission and
acknowledgement of the veracity of the
allegations against him [OCA v. Amor, A.M.
No. RTJ-08-2140 (2014)]
h. Confessions
The declaration of an accused acknowledging
his/her guilt of the offense charged, or of any
offense necessarily included therein, may be
given in evidence against him/her. [Sec. 34,
Rule 130]
Page 505 of 525
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An acknowledgment in express words or
terms, by a party in a criminal case, of his
guilt of the crime charged. [People v. Lorenzo,
G.R. No. 110107 (1995)]
Requisites
1. Express and categorical acknowledgement
of guilt [U.S. v. Corrales, G.R. No. 9230
(1914)]
2. Facts admitted constitutes a criminal
offense [U.S. v. Flores, G.R. No. 9014
(1913)]
3. Given voluntarily [People v Nishishima,
G.R. No. 35122 (1932)]
4. Intelligently made [Bilaan v Cusi, G.R. No.
L-18179 (1962)], realizing the importance
or legal significance of the act [U.S. v.
Agatea, G.R. No. 15177 (1919)]
5. No violation of Secs. 12 and 17, Art. III of
the Constitution
[2 Regalado 765, 2008 Ed.]
If the accused admits having committed the act
in question but alleges a justification therefore,
the same is merely an admission. [Ladiana v.
People, G.R. No. 144293 (2002)]
Any confession, including a re-enactment,
without admonition of the right to silence and to
counsel, and without counsel chosen by the
accused is inadmissible in evidence. [People v.
Yip Wai Ming, G.R. No. 120959 (1996)]
[T]he basic test for the validity of a confession
is – was it voluntarily and freely made. The term
"voluntary" means that the accused speaks of
his free will and accord, without inducement of
any kind, and with a full and complete
knowledge of the nature and consequences of
the confession, and when the speaking is so
free from influences affecting the will of the
accused, at the time the confession was made,
that it renders it admissible in evidence against
him. Plainly, the admissibility of a confession in
evidence hinges on its voluntariness [People v.
Satorre, G.R. No. 133858 (2003)]
An extrajudicial confession may be given in
evidence against the confessant but not
against his co-accused (since) they are
deprived of the opportunity to cross-examine
U.P. LAW BOC EVIDENCE REMEDIAL LAW

him. A judicial confession is admissible i. Similar Acts as Evidence

against the declarant’s co-accused since the
latter are afforded the opportunity to cross-
examine the former. [People v. Palijon, G.R.
No. 123545 (2000), cited in People v. Janjalani,
G.R. No. 188314 (2011)]
General rule: Evidence that one did or did not
do a certain thing at one time is not admissible
to prove that he/she did or did not do the same
or similar thing at another time

Effect of Extrajudicial Confession of Guilt Exceptions: Said evidence may be received to

General rule: An extrajudicial confession prove a:
made by an accused, shall not be a sufficient 1. specific intent or knowledge
ground for conviction 2. identity
3. plan, system, or scheme
Exception: When corroborated by evidence of 4. habit
corpus delicti 5. custom or usage and the like
[Sec. 3, Rule 133] [Sec. 35, Rule 130]

Corpus Delicti 2nd Branch of res inter alios acta rule [2

Substance of the crime; the fact that a crime Regalado 774, 2008 Ed.]
has actually been committed [People v. De
Leon, G.R. No. 180762 (2009)] Reason for General Rule
The lone fact that a person committed the
As Distinguished from Admissions of a same or similar act at some prior time affords,
Party as a general rule, no logical guaranty that he
Admission of a committed the act in question. A man’s mind
Confession
Party and even his modes of life may change; and
Acknowledgment of objectively, the conditions which he may find
A statement of fact [2
guilt or liability [2 himself at a given time make likewise change
Regalado 754, 2008
Regalado 754, 2008 and induce him to act a different way [Herrera,
Ed.]
Ed.] citing Moran]
Maybe express or Must be express [2
tacit [2 Regalado 754, Regalado 754, 2008 j. Admissibility of Offers of
2008 Ed.] Ed.] compromise
Can be made only by
Maybe made by 3rd
the party himself, and In civil cases
parties, and in certain
admissible against An offer of compromise is not an admission of
cases, admissible
his co-accused in any liability and is not admissible in evidence
against a party [2
some instances [2 against the offeror
Regalado 754, 2008
Regalado 754, 2008
Ed.]
Ed.] General rule: Evidence of conduct or
Acts, declarations or statements made in compromise negotiations
Declarations [Sec. are also not admissible
omissions [Sec. 26,
34, Rule 130]
Rule 130]
May be in any Exceptions: Evidence otherwise discoverable
proceeding or offered for another purpose such as
a. proving bias or prejudice of a witness;
Criminal case (Sec. b. negativing a contention of undue delay; or
(Sec. 27, Rule 130
34, Rule 130 refers to c. proving an effort to obstruct a criminal
refers to a party
“accused”) investigation or prosecution
without distinction as
to nature of
In criminal cases
proceeding)

Page 506 of 525

U.P. LAW BOC EVIDENCE
General rule: An offer of compromise by the
accused may be received as an implied
admission of guilt
Exception: In cases involving quasi-offenses
(criminal negligence) or those allowed by the
law to be compromised
Pleas of guilty
Not admissible against the accused who made
the plea or offer:
a. Plea of guilty later withdrawn;
b. Unaccepted offer of a plea of guilty to a
lesser offense; or
c. Statement made in the course of plea
bargaining with the prosecution which does
not result in a plea of guilty or which results
in a plea of guilty later withdrawn
Offer to pay medical, hospital or other
expenses
Offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or
criminal liability for the injury
[Sec. 28, Rule 130]
5. Hearsay Rule
Note: Provisions on hearsay were substantially
changed in the 2019 Amended Rules.
a. Meaning of Hearsay
Hearsay is a statement other than the one
made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts
asserted therein
Statement—oral or written assertion OR non-
verbal conduct of a person if it is intended by
him/her as an assertion [Sec. 39, Rule 130]
Elements
1. Declarant is out of court
2. Out of court declaration is offered as proof
of its contents
3. Absence of opportunity for cross-
examination
Page 507 of 525
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General Rule on Hearsay
A witness can testify only as to those facts
which he/she knows of his personal
knowledge, that is, which are derived from
his/her own perception [Sec. 22, Rule 130]
If a party does not object to hearsay evidence,
the same is admissible, as a party can waive
his right to cross-examine [People v. Ola, G.R.
No. L-47147 (1987)]
Repeated failure to cross-examine is an
implied waiver [Savory Luncheonette v. Lakas
ng Manggagawang Pilipino, G.R. No. L-38964
(1975)]
When a statement is NOT hearsay:
1. If the declarant testifies at the trial or
hearing and is subject to cross-
examination concerning the statement; and
2. The statement is:
a. Inconsistent with the declarant’s
testimony and was given under oath
subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in
a deposition
b. Consistent with the declarant’s
testimony and is offered to rebut an
express or implied charge against the
declarant of recent fabrication or
improper influence or motive
c. Identification of a person made after
perceiving him/her
[Sec. 37, Rule 130]
b. Reason for Exclusion of
Hearsay Evidence
The underlying rule against hearsay are
serious concerns about the worth
(trustworthiness, reliability) of hearsay
evidence. Because such evidence:
1. was not given under oath or solemn
affirmation; and
2. was not subject to cross-examination by
opposing counsel to test the perception,
memory, veracity and articulateness of out-
of-court declarant or actor upon whose
reliability on which the worth of the out-of-
court testimony depends
[Herrera]
U.P. LAW BOC EVIDENCE
Hearsay evidence is excluded precisely
because the party against whom it is presented
is deprived of or is bereft of opportunity to
cross-examine the persons to whom the
statements or writings are attributed
[Philippines Free Press v. C.A., G.R. No.
132864 (2005)]
c. Exceptions to the Hearsay Rule
1. Dying declaration
2. Statement of decedent or person of
unsound mind
3. Declaration against interest
4. Act or declaration about pedigree
5. Family reputation or tradition regarding
pedigree
6. Common reputation
7. Part of the res gestae
8. Records of regularly conducted business
activity
9. Entries in official records
10. Commercial lists and the like
11. Learned treatises
12. Testimony or deposition at a former trial
13. Residual exception
i. Dying Declaration
Also known as “antemortem statement” or
“statement in articulo mortis” [People v.
Mendoza, G.R. No. 142654 (2001)]
Requisites for Admissibility
a. Declaration of a dying person
b. Declaration was made under the
consciousness of an impending death
c. Declaration may be received in any case
wherein his/her death is the subject of
inquiry, as evidence of the cause and
surrounding circumstances of such death
[Sec. 38, Rule 130]
d. Declarant would have been competent as
a witness had he survived [Geraldo v
People, G.R. No. 173608 (2008)); and
e. Declarant should have died [People v.
Macandog, G.R. No. 129534 and 1411691
(2001)]
Page 508 of 525
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A dying declaration must be single hearsay to
be admissible [People v. Bautista, G.R. No.
117685 (1999)]
Rationale for Admissibility
As a general rule, when a person is at the point
of death, every motive to falsehood is silenced
[People v Bacunawa, G.R. No. 136859 (2001)]
The law considers the point of death as a
situation so solemn and awful as creating an
obligation equal to that which is imposed by an
oath administered by the court. [People v.
Cerilla, G.R. No. 177147 (2007)]
The admissibility of an ante mortem declaration
is not affected by the fact that the declarant
died hours or several days after making his
declaration. It is sufficient that he believes
himself in imminent danger of death at the time
of such declaration [Herrera, citing People v.
Ericta 77 SCRA 199]
The rule is that, in order to make a dying
declaration admissible, a fixed belief in
inevitable and imminent death must be entered
by the declarant. It is the belief in impending
death and not the rapid succession of death in
point of fact that renders a dying declaration
admissible. The test is whether the declarant
has abandoned all hopes of survival and
looked on death as certainly impending.
Objections to the dying declaration
May be premised on any of the requisites for its
admissibility embodied in Sec. 38, Rule 130.
[Riano 302, 2016 Ed.]
Dying declarations are admissible in favor of
the defendant as well as against him [US v.
Antipolo, 37 Phil. 726 (1918)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

ii. Statement of Decedent or Person Exception: Admissible if corroborating

of Unsound Mind circumstances clearly indicate the
trustworthiness of the statement [Sec. 40, Rule
Requisites for Admissibility 130]
General rule: Any statement of the deceased
or the person of unsound mind may be received Inability to testify means that the person is
in evidence dead, mentally incapacitated or physically
incompetent. Mere absence from the
a. In an action against: jurisdiction does not make him ipso facto
1. an executor, administrator or other unavailable. [Fuentes v. C.A., G.R. No.
representative of a deceased person; 111692 (1996)]
OR
2. a person of unsound mind Admissible against third persons
b. Upon a claim or demand against the estate Declaration against interest made by the
of such deceased person or against such deceased, or by one unable to testify, is
person of unsound mind admissible even against the declarant’s
c. Where party or assignor of a party or a successors-in-interest or even against third
person in whose behalf a case is persons [Sec. 40, Rule 130]
prosecuted testifies on a matter of fact
occurring before the death of the deceased Actual or real interest
or before the person became of unsound It is essential that at the time of the statement,
mind the declarant’s interest affected thereby should
d. Statement was made by the deceased or be actual, real or apparent, not merely
person of unsound mind at a time where contingent, future or, conditional; otherwise the
the matter had been recently perceived by declaration would not in reality be against
him/her while his/her recollection was clear interest. (Example: declarations regarding a
declarant’s inheritance are not admissible
Exception: The statement is inadmissible if because these are future interests) [Herrera]
made under circumstances indicating its lack of
trustworthiness [Sec. 39, Rule 130] As Distinguished from Admissions
Admission by a Declaration
iii. Declaration Against Interest party [Sec. 27, against Interest
Rule 130] [Sec. 40, Rule 130]
Requisites for Admissibility Admitter is a party Declarant is neither
a. Declarant is dead or unable to testify; himself, or in privity a party nor in privity
b. Declaration relates to a fact against the
with such party with a party
interest of the declarant;
c. At the time he made said declaration, Admissible whether Admissible only
declarant was aware that the same was or not admitter is when declarant is
contrary to the declarant’s own interest; available as a unavailable as a
and witness witness
d. Declarant had no motive to falsify and Can be made any Must have been
believed such declaration to be true [Sec. time, even during made ante litem
40, Rule 130] trial motam
Admissible only Admissible even
When NOT admissible against the admitter against 3rd persons
General rule: If the statement tends to expose
Admissible as an
the declarant to criminal liability and is offered Admissible not as an
exception to the
to exculpate the accused exception to any rule
hearsay rule

Page 509 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Made against one’s v. Family Reputation or Tradition

Made against one’s Regarding Pedigree
claim or defense,
pecuniary or moral
although not moral
interest Requisites for Admissibility
or pecuniary interest
Primary evidence Secondary evidence a. Witness must be a member, by
consanguinity, affinity, or adoption, of the
[Estrada v. Desierto, G.R. Nos. 146710-15
same family as the subject; and
(2001)]
b. Such reputation or tradition must have
existed in that family ante litem motam
iv. Act or Declaration About Pedigree
(before the controversy) [Sec. 42, Rule
130]
Requisites for Admissibility
1. Note: ante litem motam means before
a. The act or declaration
the controversy arose, not before the
b. Of a person deceased or unable to testify
suit was brought (Prof. Avena)
c. In respect to the pedigree of another
person related to him/her by
Other Admissible Evidence
1. birth;
a. Entries in family bibles or other family
2. adoption;
books;
3. marriage; or
b. Charts;
4. in the absence thereof, with those
c. Engravings on rings;
family he/she was so intimately
d. Family portraits and the like
associated as to be likely to have
[Sec. 42, Rule 130]
accurate information concerning
his/her pedigree
This enumeration, by ejusdem generis, is
d. May be received in evidence where the
limited to "family possessions," or those
act/declaration occurred before the
articles which represent, in effect, a family's
controversy; and
joint statement of its belief as to the pedigree of
e. Relationship between the declarant and
a person [Jison v. C.A., G.R. No. 124853.
the person whose pedigree is in question
(1998)]
must be shown by evidence other than
such act or declaration (evidence aliunde)
A person’s statement as to his date of birth and
[Sec. 41, Rule 130]
age, as he learned of these from his parents or
relatives, is an ante litem motam declaration of
Pedigree includes
a family tradition [Gravador v. Mamigo, G.R.
a. Relationship;
No. L-24989, (1967)]
b. Family genealogy;
c. Birth;
Distinguished from Declaration about
d. Marriage;
Pedigree
e. Death;
Sec. 41 – Sec. 42 – Family
f. Dates when these facts occurred;
g. Places where these facts occurred; Declaration about Reputation or
h. Names of relatives; and Pedigree Tradition
i. Facts of family history intimately connected There must be a The witness
with pedigree [Sec. 40, Rule 130] declarant and a testifying to the
witness family reputation
Pedigree declaration by conduct The witness need and tradition must be
This rule may also consist of proof of acts or not be a relative of a member of the
conduct of relatives and the mode of treatment the person whose family member of the
in the family of one whose parentage is in pedigree is in person whose
question [Herrera 649] question, it must be pedigree is in
the declarant. controversy.

Page 510 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

The witness may Reputation has been held admissible as

Independent evidence of age, birth, race, or race-ancestry,
testify about the
evidence is needed and on the question of whether a child was
relationship himself.
to establish born alive [In re: Florencio Mallare, A.M. No.
The author of the
relationship between 533 (1974)]
reputation need not
declarant and
be established by
person whose Unlike that of matters of pedigree, general
independent
pedigree is in issue reputation of marriage may proceed from
evidence. persons who are not members of the family —
[Herrera] the reason for the distinction is the public
interest. [In re: Florencio Mallare, AM No. 533
vi. Common Reputation (1974)]

Definition: The definite opinion of the vii. Part of the Res Gestate
community in which the fact to be proved is
known or exists. It means the general or Res gestae — “things done”
substantially undivided reputation, as Res gestae, as an exception to the hearsay
distinguished from a partial or qualified one, rule, refers to those exclamations and
although it need not be unanimous [2 statements made by either the participants,
Regalado, 787, 2008 Ed.] victims, or spectators to a crime immediately
before, during, or after the commission of the
Requisites for Admissibility crime, when the circumstances are such that
a. Common reputation existed ante litem the statements were made as a spontaneous
motam reaction or utterance inspired by the
b. Reputation pertains to: excitement of the occasion and there was no
1. boundaries of or customs affecting opportunity for the declarant to deliberate and
lands in the community to fabricate a false statement [DBP Pool of
2. events of general history important to Accredited Insurance Companies v. Radio
the community Mindanao Network, Inc., G.R. No. 147039
3. marriage, or (2006)]
4. moral character
[Sec. 43, Rule 130] A dying declaration can be made only by the
victim, while a statement as part of the res
Note: The 30-year rule was removed in the gestae may be that of the killer himself after or
Amended Rules during the killing [2 Regalado 788, 2008 Ed.,
citing People v. Reyes, G.R. Nos. L-1846–48
Other Admissible Evidence (1949)]
a. Monuments
b. Inscriptions in public places A statement not admissible as dying
[Sec. 43, Rule 130] declaration because it was not made under
consciousness of impending death, may still be
Pedigree may be established by reputation in admissible as part of res gestae if made
the family, but not in the community [Secs. 42- immediately after the incident [People v.
43, Rule 130] Gueron, G.R. No. L-29365 (1983)]

Common reputation is hearsay like any other

exception to the hearsay rule, but is admissible
because of trustworthiness [Riano 327, 2016
Ed., citing Reg. v. Bedforshire, 4 E & B 535, 82
ECL 535, 542]

Page 511 of 525

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Requisites for res gestae

Spontaneous Sec. 44. Res Sec. 38. Dying
Verbal Acts
Statements gestae Declaration
a. The principal a. The res gestae Statement may be Can be made only
act, the res or principal act made by the killer by the victim
gestae, be or to be himself
made due to a characterized after or during the
startling must be killing [People v.
occurrence equivocal;
Reyes, G.R. Nos. L-
b. The statements b. Such act must
1846–48 (1949)] OR
were made be material to
that of a
before the the issue
declarant had c. The statements 3rd person.
the opportunity must May precede, Made only after the
to contrive accompany the accompany or be homicidal attack has
c. The statements equivocal act. made after the been committed
must refer to the d. The statements homicidal attack was
occurrence in give a legal committed
question and its significance to Justification in the Trustworthiness
attending the equivocal act spontaneity of the based upon in its
circumstances [Talidano v. statement. being given in
[Talidano v. Falcon Maritime,
awareness of
Falcon G.R. No. 172031
impending death
Maritime, G.R. (2008)]
No. 172031 [2 Regalado 790, [2 Regalado 788-789, 2008 Ed.]
(2008)]] 2008 Ed.]
viii. Records of Regularly Conducted
Business Activity
[2 Regalado 788,
2008 Ed., citing
Requisites for Admissibility
People v. Siscar, a. Memorandum, report, record or data
G.R. No. 55649 compilation
(1985)] 1. Of acts, events, conditions, opinions, or
Spontaneous diagnoses
exclamations may 2. Made by writing, typing, electronic,
have been made optical, or other similar means
before, 3. At or near the time of or from
during or transmission or supply of information
immediately after Verbal act must have b. Entrant had knowledge thereof
the startling been made at the c. Records are kept in the regular course or
conduct of a business activity
occurrence time, and not after,
d. The making of the memorandum, report,
equivocal act [2 the equivocal act
record, or data compilation by electronic,
Regalado 790, 2008 was being performed optical or similar means is regular practice
Ed.] [2 Regalado 790, e. All of the above are shown by the testimony
2008 Ed.] of a custodian or other qualified witness
AND must be under [Sec. 45, Rule 130]
the stress or
excitement caused Note: Sec. 45 has no counterpart in the
by the occurrence previous Rules but it is the exact reproduction
[Sec. 44, Rule 130] of Sec. 2, Rule 8, Rules on Electronic Evidence

Page 512 of 525

U.P. LAW BOC EVIDENCE
(“Business records as exception to the hearsay
rule under the Rules on Electronic Evidence”)
If the entrant is available as a witness, the
entries will not be admitted, but they may
nevertheless be availed of by said entrant as a
memorandum to refresh his memory while
testifying on the transactions reflected therein
[Cang Yui v. Gardner, G.R. No. L-9974 (1916)]
Entries in the payroll, being entries in the
course of business, enjoy the presumption of
regularity [Sapio v. Undaloc Construction, G.R.
No. 155034 (2008)]
Reason for rule
The duty of the employees to communicate
facts is of itself a badge of trustworthiness of
the entries [Security Bank and Trust Company
v. Gan, G.R. No. 150464 (2006)]
These entries are accorded unusual reliability
because their regularity and continuity are
calculated to discipline record keepers in the
habit of precision [LBP v. Monet’s Export and
Manufacturing Corp., G.R. No. 184971 (2010)]
ix. Entries in Official Records
Requisites for Admissibility
a. Entries in official records were made by a
public officer in the performance of his/her
duties or by a person in the performance of
a duty specially enjoined by law [Sec. 46,
Rule 130];
b. Entrant must have personal knowledge of
the facts stated by him or such facts
acquired by him from reports made by
persons under a legal duty to submit the
same [Barcelon, Roxas Securities v. CIR,
G.R. 157064 (2006)]; and
c. Entries were duly entered in a regular
manner in the official records [People v.
Mayingque, G.R. No. 179709 (2010)]
The trustworthiness of public documents and
the value given to the entries made therein
could be grounded on:
a. the sense of official duty in the preparation
of the statement made;
Page 513 of 525
REMEDIAL LAW
b. the penalty which is usually affixed to a
breach of that duty;
c. the routine and disinterested origin of most
such statements; and
d. the publicity of record which makes more
likely the prior exposure of such errors as
might have occurred
[Herce, Jr. v Municipality of Cabuyao, Laguna,
GR. No. 166645 (2005)]
A sheriff’s return is an official statement by a
public official in the performance of a duty
specially enjoined by law and is prima facie
evidence of the facts therein stated. Being an
exception to the hearsay rule, the sheriff need
not testify in court as to the facts stated in said
return [Manalo v Robles Trans.Co., GR. No. L-
8171, (1956)]
Entries in official records are merely prima
facie evidence of the facts therein stated [Sec.
46, Rule 130]
Entries in a police blotter are not conclusive
proof of the truth of such entries [People v.
Cabuang, G.R. No. 103292 (1993)]
Baptismal certificates or parochial records of
baptism are not official records [Fortus v.
Novero, G.R. No. L-22378 (1968)]
x. Commercial Lists and the Like
Requisites for Admissibility
a. Evidence of statements of matters of
interest to persons engaged in an
occupation
b. Such statements are contained in a list,
register, periodical, or other published
compilations
c. Compilation is published for use by
persons engaged in that occupation; and
1. Example: mortality tables, MIMS drug
database
d. It is generally used and relied upon by them
[Sec. 47, Rule 130]
U.P. LAW BOC EVIDENCE
xi. Learned Treatises
Requisites for Admissibility
a. Published treatise, periodical or pamphlet
is on a subject of history, law, science, or
art; and
b. Court takes either:
1. judicial notice of it, or
2. a witness expert in the subject testifies
that the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his/her profession or
calling as expert in the subject
[Sec. 48, Rule 130]
Scientific studies or articles and websites
which were culled from the internet, attached to
the Petition, and were not testified to by an
expert witness are basically hearsay in nature
and cannot be given probative weight. [Paje v.
Casiño, G.R. No. 207257 (2015)]
xii. Testimony or Deposition at a
Former Trial
Requisites for Admissibility
a. Witness is dead, out of the Philippines or
with due diligence cannot be found therein,
unavailable, or unable to testify;
b. The testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
c. Former case involved the same subject as
that in the present case although on
different causes of action;
d. Issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
e. Adverse party had the opportunity to cross-
examine the witness in the former case
[Sec. 49, Rule 130]
Inability to testify (meaning and standard)
The inability of the witness to testify must
proceed from a grave cause, almost amounting
to death, as when the witness is old and has
lost the power of speech. Mere refusal shall not
suffice [Tan v. C.A., G.R. No. L-22793 (1967)]
Page 514 of 525
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xiii. Residual Exception
Requisites for admissibility
a. Statement not specifically covered by any
of the foregoing exceptions;
b. Has the equivalent circumstantial
guarantees of trustworthiness
c. The court determines that:
1. the statement is offered as evidence of
a material fact;
2. it is more probative on the point for
which it is offered than any other
evidence which the proponent can
procure through reasonable efforts;
and
3. the general purposes of these rules
and the interests of justice will be best
served by its admission
d. Proponent makes known to the adverse
party, sufficiently in advance of the hearing
or by the pre-trial stage in case of a trial of
the main case, to provide the adverse party
with a fair opportunity to prepare to meet it,
the proponent’s intention to offer the
statement and its particulars, including the
name and address of the declarant [Sec.
50, Rule 130]
Note: This is a new provision under the
Amended Rules.
OTHER EXCEPTIONS OUTSIDE THE
RULES OF COURT
a. Affidavit in the Rules of Summary
Procedure - shall not be considered as
competent evidence for the party
presenting the affidavit, but the adverse
party may utilize the same for any
admissible purpose [Sec. 14, Rules on
Summary Procedure]
b. Under the Rule on Examination of a Child
Witness, hearsay exception in child abuse
cases [see Sec. 28]
d. Independently Relevant
Statements (IRS)
Statements or writings attributed to a person
not on the witness stand, which are being
offered not to prove the truth of the facts stated
U.P. LAW BOC EVIDENCE
therein, but only to prove that such were
actually made.
These are not covered by the hearsay rule
[People v. Cusi, G.R. No. L-20986 (1965)]
These are statements which are relevant
independently of whether they are true or not
[Estrada v. Desierto, G.R. No. 146710 (2001)]
Two classes of independently relevant
statements:
1. Statements which are the very facts in
issue, and
2. Statements which are circumstantial
evidence of the facts in issue. They include
the following:
a. Statement of a person showing his
state of mind, that is, his mental
condition, knowledge, belief, intention,
ill will and other emotions;
b. Statements of a person which show his
physical condition, as illness and the
like;
c. Statements of a person from which an
inference may be made as to the state
of mind of another, that is, the
knowledge, belief, motive, good or bad
faith, etc. of the latter;
d. Statements which may identify the
date, place and person in question; and
e. Statements showing the lack of
credibility of a witness [Estrada v.
Desierto, G.R. No. 146710 (2001)]
6. Opinion Rule
Opinion is an inference or conclusion drawn
from facts observed [Black’s Law Dictionary]
General rule: The opinion of witness is not
admissible [Sec. 51, Rule 130]
Exceptions:
a. Expert witness [Sec. 52, Rule 130]
b. Ordinary witness [Sec. 53, Rule 130]
a. Opinion of Expert Witness;
Weight given
Page 515 of 525
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The opinion of a witness on a matter requiring
special knowledge, skill, experience, training,
or education, which he/she shown to possess,
may be received in evidence [Sec. 52, Rule
130]
Expert witness is one who has made the
subject upon which he gives his opinion a
matter of particular study, practice or
observation and he must have particular and
special knowledge on the subject [People v.
Dekingco, G.R. No. 87685 (1990)]
ADMITTING EXPERT TESTIMONY
Question in admitting expert testimony
Whether the opinion called for will aid the fact
finder in resolving an issue, or whether the
judge is as well qualified as the witness to draw
its own or his own deductions from the
hypothetical facts [Herrera]
Court discretion to exclude or include
expert evidence
If men of common understanding are capable
of comprehending the primary facts and
drawing correct conclusions from them, expert
testimony may be excluded by the Court
[Herrera]
Competency of witness is a preliminary
question before testimony is admitted
It must be shown that the witness is really an
expert; determination of competency is a
preliminary question [Herrera]
The competence of an expert witness is a
matter for the trial court to decide upon in the
exercise of its discretion. The test of
qualification is necessarily a relative one,
depending upon the subject matter of the
investigation, and the fitness of the expert
witness. In our jurisdiction, the criterion
remains to be the expert witness' special
knowledge, experience and practical
training that qualify him/her to explain
highly technical medical matters to the
Court.
It is the specialist's knowledge of the
requisite subject matter, rather than his/her
U.P. LAW BOC EVIDENCE
specialty that determines his/her
qualification to testify. [Casumpang v.
Cortejo, G.R. No. 171127 (2015)]
EXAMINING AN EXPERT WITNESS
Mode of examination of expert witness
He may base his opinion on the basis of
hypothetical questions where the facts are
presented to him hypothetically, and on the
assumption that they are true, formulates his
opinion on this hypothesis [Herrera]
The lack of personal examination and interview
of the respondent, or any other person
diagnosed with personality disorder, does not
per se invalidate the testimonies of the doctors.
Neither do their findings automatically
constitute hearsay that would result in their
exclusion as evidence. Within their
acknowledged field of expertise, doctors can
diagnose the psychological make up of a
person based on a number of factors culled
from various sources. [Camacho-Reyes v
Reyes, G.R. No. 185286 (2010)]
How to present an expert witness
1. Introduce and qualify the witness;
2. Let him give his factual testimony, if he has
knowledge of the facts;
3. Begin the hypothetical question by asking
him to assume certain facts as true;
4. Conclude the question, by first asking the
expert if he has an opinion on a certain
point
5. assuming that these facts are true and
secondly, asking him, after he has
answered affirmatively, to give his opinion
on the point;
6. After he has stated his opinion, ask him to
give his reasons.
Weight given to expert testimony
Courts are not bound by the findings or
opinions of the expert. Their evidence is not
conclusive, but merely advisory.
b. Opinion of Ordinary Witness
The opinion of an ordinary witness is
admissible:
Page 516 of 525
REMEDIAL LAW
1. If proper basis is given, and
2. Regarding:
a. Identity of a person about whom he/she
has adequate knowledge;
b. Handwriting with which he/she has
sufficient familiarity;
c. Mental sanity of a person with whom
he/she is sufficiently acquainted; and
d. Impressions of the
i. emotion,
ii. behavior,
iii. condition, or
iv. appearance of a person
[Sec. 53, Rule 130]
IDENTITY OF A PERSON ABOUT WHOM HE
HAS ADEQUATE KNOWLEDGE
Statements of a witness as to identity are not
to be rejected because he is unable to describe
features of the person in question [Herrera]
Identification by voice is recognized by the
courts, especially in a case where it was
impossible to see the accused but the witness
has known the accused since their childhood
[Herrera, citing US v. Manabat]
HANDWRITING WITH WHICH HE HAS
SUFFICIENT FAMILIARITY
The ordinary witness must be acquainted with
the characteristics of the handwriting of a
person. He may only draw on the knowledge
which he already has, and which enables him
to recognize the handwriting.
Only experts are allowed to give conclusions
from the comparison of samples of handwriting
of a person whose handwriting he is not familiar
with [Herrera]
MENTAL SANITY OF A PERSON WITH
WHOM HE IS SUFFICIENTLY ACQUAINTED
These are allowed where the witness can
adequately describe the actions, looks or
symptoms of a person’s sanity or insanity
which is impossible for the court to determine
[Herrera]
U.P. LAW BOC EVIDENCE
IMPRESSIONS OF THE EMOTION,
BEHAVIOR, CONDITION OR APPEARANCE
OF A PERSON
The rule recognizes instances when a witness
may be permitted to state his inferences that
are drawn from minute facts and details which
the witness cannot fully and properly describe
in court. Such expressions are expressed to
the countenance, the eye and the general
manner and bearing of the individual;
appearance which are plainly enough
recognized by a person of good judgment, but
which he cannot otherwise communicate by an
expression of results in the shape of an opinion
[Herrera, citing US case Hardy v. Merill]
7. Character Evidence
Note: There are substantial changes in this part
in the 2019 Revised Rules
Character distinguished from reputation
'Character' is what a man is, and 'reputation' is
what he is supposed to be in what people say
he is. 'Character' depends on attributes
possessed, and 'reputation' on attributes which
others believe one to possess. The former
signifies reality and the latter merely what is
accepted to be reality at present [Lim v. C.A.,
G.R. No. 91114 (1992)].
General rule:
Evidence of a person’s character or a trait of
character is not admissible for the purpose of
proving action in conformity therewith on a
particular occasion
[Sec. 54, Rule 130]
Exceptions:
a. Criminal cases [Sec. 54(a), Rule 130]
b. Civil case [Sec. 54(b), Rule 130]
c. In both civil and criminal cases [Sec. 54(c),
Rule 130]
1. Evidence of good character of witness
is not admissible until such character
has been impeached
2. When the character or trait of character
is an essential element of a charge,
claim or defense
Page 517 of 525
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a. Criminal Cases
1. Accused – May prove his/her good moral
character, which is pertinent to the moral
trait involved in the offense charged.
2. Prosecution – May not prove the bad
moral character of the accused, except in
rebuttal.
3. Offended Party –May be proved if it tends
to establish in any reasonable degree the
probability or improbability of the offense
charged.
[Sec. 54, Rule 130]
Good moral character of accused
The purpose of presenting evidence of good
moral character is to prove the improbability of
his doing the act charged. The accused may
prove his good moral character only if it is
pertinent to the moral trait involved in the
offense charged [Herrera]
Bad moral character of accused in rebuttal
Unless and until the accused gives evidence of
his good moral character the prosecution may
not introduce evidence of his bad character
[Herrera, citing People v. Rabanes, G.R. No.
93709 (1992)]
Character evidence must be limited to the traits
and characteristics involved in the type of
offense charged. Thus:
● on a charge of rape: character for chastity
● on a charge of assault: character for
peaceableness or violence
● on a charge of embezzlement: character
for honesty [CSC v. Belagan, G.R. No.
132164 (2004)]
Proof of the bad character of the victim is
not admissible:
● In a murder case: If the crime was
committed through treachery and evident
premeditation [People v. Soliman, G.R. No.
L-9723 (1957)]
● In a rape case: If through violence and
intimidation [People v. Blance, G.R. No.
20063, (1923)]
U.P. LAW BOC EVIDENCE
Rape Shield Rule
In prosecution for rape, evidence of
complainant’s past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that the
court finds that such evidence is material and
relevant to the case [Sec 6, R.A. 8505]
Sexual Abuse Shield Rule
The following evidence is not admissible in any
criminal proceeding involving alleged child
sexual abuse:
1. Evidence to prove that the alleged victim
engaged in other sexual behavior; and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec 30,
Rule on Examination of a Child Witness]
b. Civil cases
Moral character is admissible only when
pertinent to the issue of character involved in
the case [Sec. 54(b), Rule 130]
c. Criminal and civil cases
Evidence of the witness’ good character is not
admissible until such character has been
impeached
In all cases in which evidence of character or a
trait of character of a person is admissible,
proof may be made by:
1. Testimony as to reputation; or
2. Testimony in the form of an opinion
On cross-examination, inquiry is allowable into
relevant specific instances of conduct.
In cases where the character or trait of
character is an essential element of a charge,
claim, or defense, proof may also be made of
specific instances of that person’s conduct.
[Sec. 54(c), Rule 130]
Page 518 of 525
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8. Judicial Affidavit Rule [A.M.
12-8-8-SC]
a. Scope
Where Applicable
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before:
1. Courts (but not to small claims cases)
2. Investigating officers and bodies
authorized by the SC to receive evidence,
including the IBP
3. Quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the
Supreme Court, insofar as their existing
rules of procedure contravene the
provisions of this Rule
[Sec. 1]
b. Submission in lieu of direct
testimony
1. The parties shall file with the court and
serve on the adverse party, personally or
by licensed courier service, not later than
five 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, shall be marked and
attached to the judicial affidavits
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. In addition,
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, failing which the
latter shall not be admitted. This is without
U.P. LAW BOC EVIDENCE
prejudice to the introduction of secondary
evidence in place of the original when
allowed by existing rules.
[Sec. 2]
c. Contents
Shall be prepared in the language known to the
witness and, if not in English or Filipino,
accompanied by a translation in English or
Filipino [Sec. 3]
1. The name, age, residence or business
address, and occupation of the witness
2. The 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. A 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
6. A jurat with the signature of the notary
public who administers the oath or an
officer who is authorized by law to
administer the same
[Sec. 3]
7. A sworn attestation at the end, executed by
the lawyer who conducted or supervised
the examination of the witness, to the effect
that:
a. He faithfully recorded or caused to be
recorded the questions he asked and
the corresponding answers that the
witness gave; and
Page 519 of 525
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b. Neither he nor any other person then
present or assisting him coached the
witness regarding the latter's answers.
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment.
[Sec. 4]
d. Offer and objection
Offer of and objections to testimony in
judicial affidavit
1. The party presenting the judicial affidavit of
his witness in place of direct testimony shall
state the purpose of such testimony at the
start of the presentation of the witness.
2. The adverse party may move to disqualify
the witness or to strike out his affidavit or
any of the answers found in it on ground of
inadmissibility.
3. The court shall promptly rule on the motion
and, if granted, shall cause the marking of
any excluded answer by placing it in
brackets under the initials of an authorized
court personnel, without prejudice to a
tender of excluded evidence under Section
40 of Rule 132 of the Rules of Court.
[Sec. 6]
Examination of the witness on his judicial
affidavit
1. The adverse party shall have the right to
cross-examine the witness on his judicial
affidavit and on the exhibits attached to the
same.
2. The party who presents the witness may
also examine him as on re-direct.
3. In every case, the court shall take active
part in examining the witness to determine
his credibility as well as the truth of his
testimony and to elicit the answers that it
needs for resolving the issues.
[Sec. 7]
Oral offer of and objections to exhibits
1. Upon the termination of the testimony of his
last witness, a party shall immediately
make an oral offer of evidence of his
documentary or object exhibits, piece by
piece, in their chronological order, stating
U.P. LAW BOC EVIDENCE REMEDIAL LAW

the purpose or purposes for which he offers documentary and object evidence
the particular exhibit. previously marked as Exhibits 1, 2, 3, and
2. After each piece of exhibit is offered, the so on. These affidavits shall serve as direct
adverse party shall state the legal ground testimonies of the accused and his
for his objection, if any, to its admission, witnesses when they appear before the
and the court shall immediately make its court to testify.
ruling respecting that exhibit. [Sec. 9]
3. Since the documentary or object exhibits
form part of the judicial affidavits that f. Effect of non-compliance
describe and authenticate them, it is
sufficient that such exhibits are simply cited Non-compliant
by their markings during the offers, the Consequence
behavior
objections, and the rulings, dispensing with Deemed to have waived
the description of each exhibit. their submission
[Sec. 8]
Note: Court may allow,
e. Application in criminal cases only once late submission,
Party’s failure provided
This Judicial Affidavit Rule shall apply to all 1. the delay (a) is for a
to submit
criminal actions: valid reason, (b)
1. Where the maximum of the imposable would not prejudice
penalty does not exceed six years; the opposing party
2. Where the accused agrees to the use of and
judicial affidavits, irrespective of the 2. the defaulting party
penalty involved; or pays a fine.
3. With respect to the civil aspect of the Witness’ failure
actions, whatever the penalties involved to appear at the Affidavit shall not be
are scheduled considered by the court
[Sec. 9] hearing
Deemed to have waived
Procedure Counsel’s
his client’s right to cross-
1. The prosecution shall submit the judicial failure to
examine the witnesses
affidavits of its witnesses not later than five appear
there present
days before the pre-trial, serving copies ·of Judicial affidavit cannot be
the same upon the accused. admitted as evidence
2. The complainant or public prosecutor shall
attach to the affidavits such documentary The court may, however,
or object evidence as he may have, allow only once the
marking them as Exhibits A, B, C, and so subsequent submission of
on. Non-
compliance the compliant replacement
3. No further judicial affidavit, documentary,
with content affidavits before the
or object evidence shall be admitted at the
and attestation hearing or trial provided
trial.
requirements 1. the delay (a) is for a
4. If the accused desires to be heard on his
valid reason, (b)
defense after receipt of the judicial would not prejudice
affidavits of the prosecution, he shall have the opposing party
the option to submit his judicial affidavit as and
well as those of his witnesses to the court 2. the defaulting party
within ten days from receipt of such pays a fine.
affidavits and serve a copy of each on the [Sec. 10]
public and private prosecutor, including his

Page 520 of 525

U.P. LAW BOC EVIDENCE
Issuance of Subpoena
If the government employee or official, or the
requested witness, who is neither the witness
of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make
the relevant books, documents, or other things
under his control available for copying,
authentication, and eventual production in
court, the requesting party may avail himself of
the issuance of a subpoena ad testificandum or
duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a
subpoena to the witness in this case shall be
the same as when taking his deposition except
that the taking of a judicial affidavit shall be
understood to be ex parte [Sec. 5]
Adverse party witnesses and hostile witnesses
are excluded since they are not covered by
Sec. 5 [Tam v. China Banking Corporation,
G.R. No. 214054 (2015)]
There is nothing in the provisions of the Judicial
Affidavit Rule, which prohibits a defendant from
filing a demurrer to evidence, if he truly
believes that the evidence adduced by the
plaintiff is insufficient. [Lagon v. Velasco, G.R.
No. 208424 (2018)]
The provisions of the Rules of Court and other
rules of procedure in the investigative or quasi-
judicial bodies covered by this rule are
repealed or modified insofar as these are
inconsistent with the provisions of this Rule
[Sec. 11]
F. OFFER AND
OBJECTION
1. Offer of Evidence
General rule: The court shall consider no
evidence which has not been formally offered.
The purpose for which the evidence is offered
must be specified [Sec. 34, Rule 132]
Exception:
Page 521 of 525
REMEDIAL LAW
Evidence not formally offered may be
admissible when two essential conditions
concur:
a. the same must have been duly identified by
testimony duly recorded and,
b. the same must have been incorporated in
the records of the case
[Star Two v. Ko, G.R. No. 185454 (2011)]
As Distinguished from Identification of
Documentary Evidence
Identification of
Formal Offer of
Documentary
Evidence
Evidence
Done in the course Done only when the
of the trial and party rests his/her
accompanied by the case
marking of the
evidence
[Interpacific Transit v. Aviles, G.R. No. 86062
(1990)]
Why Formal Offer is Necessary
Parties are required to inform the courts of the
purpose of introducing their respective exhibits
to assist the latter in ruling on their admissibility
in case an objection thereto is made. [Star Two
v. Ko, G.R. No. 185454 (2011)]
A formal offer is necessary because it is the
duty of a judge to rest his findings of facts and
his judgment only and strictly upon the
evidence offered by the parties to the suit. It is
a settled rule that the mere fact that a particular
document is identified and marked as an
exhibit does not mean that it has thereby
already been offered as part of the evidence of
a party. [Parel v. Prudencio, G.R. 146556
(2006).
No evidentiary value can be given to pieces of
evidence not formally offered [Dizon v. CTA,
G.R. No. 140944 (2008)]
However, where the absence of an offer of
testimonial evidence was not objected to as
when the witness was cross-examined by the
adverse party despite failure to make an offer
of the testimony, the court must consider the
testimony.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

The provisions of the ROC on the inclusion n 2. When to Make an Offer

appeal of documentary evidence or exhibits in
the records, cannot be stretched as to include Kind of
such pleadings or documents not offered at the When to offer
evidence
hearing of the case [Candido v. C.A., G.R.No.
At the time the witness is
107493 (1996)] Testimonial
called to testify
When Formal Offer is NOT Required After the presentation of a
Documentary
a. In a summary proceeding because it is a party’s testimonial
and Object
proceeding where there is no full-blown evidence
trial; [Sec. 35, Rule 132]
b. Documents judicially admitted or taken
judicial notice of; @ The party who terminated the presentation of
c. Documents, affidavits, and depositions evidence must make an oral offer of evidence
used in rendering a summary judgment; on the very day the party presented the last
d. Documents or affidavits used in deciding witness. Otherwise, the court may consider the
quasi-judicial or administrative cases party’s documentary or object evidence waived
[Bantolino v. Coca Cola Bottlers, G.R. No. [Heirs of Pasag v. Sps. Parocha, G.R. No.
153660 (2003)] 155483 (2007)]
e. Lost objects previously marked, identified,
described in the record, and testified to by Manner of Offer
witness who had been subjects of cross- ALL evidence must be offered orally [Sec. 35,
examination in respect to said objects Rule 132]
[Tabuena v. C.A., G.R. No. 85423 (1991),
citing People v. Napat-a, G.R. No. 84951 Note: This is a revision under the 2019 Revised
(1989)] Rules.
[Riano 343, 2016 Ed.]
f. When duly identified in a testimony duly The Court shall consider the evidence solely
recorded and it was incorporated in the for the purpose for which it is offered, not for
records of the case [Vda. de Oate v. C.A., any other purpose [Spouses Ragudo v Fabella
G.R. No. 116149 (1995)] Estate Tenants Association, Inc., G.R. No.
146823, (2005)].
Evidence can be considered only for the
purposes it was specifically offered [Republic v 3. Objection
Reyes-Bakunawa, G.R. No. 180418 (2013)]
Concept
Waiver of Right to Make Formal Offer When a party desires the court to reject the
It is deemed waived by a party if it fails to evidence offered, he must so state in the form
submit within a considerable period of time its of objection. Without such objection, he cannot
formal offer [Heirs of Pasag v. Parocha, G.R. raise the question for the first time on appeal
No. 155483 (2007)] [People v. Diaz, G.R. No. 197818 (2015)]
A party is not deemed to have waived objection Purposes of Objection
to admissibility of documents by his failure to 1. Made to keep out inadmissible evidence
object to the same when they were marked, that would cause harm to client’s cause
identified and then introduced during the trial. (rules of evidence are not self-operating);
This is because objection to documentary 2. To protect the record (for future appeal);
evidence must be made at the time it is formally 3. To protect witness from being
offered and not earlier [Interpacific Transit v. embarrassed or harassed;
Aviles, G.R. No. 86062 (1990)] 4. To expose adversary’s unfair tactics;

Page 522 of 525

U.P. LAW BOC EVIDENCE
5. To give trial court an opportunity to correct
its own errors and at the same time warn
the court that a ruling adverse to the
objector may supply a reason to invoke a
higher court’s appellate jurisdiction; and
6. To avoid a waiver of inadmissibility
[Riano]
Objections must be specific enough to
adequately inform the court the rule of
evidence or of substantive law that authorizes
the exclusion of evidence [Riano]
MANNER
Objection to offer of evidence must be made
ORALLY immediately after the offer is made
[Sec. 35, Rule 132]
When to Object
What to object to When to object
Testimony of a Immediately as soon
witness for lack of as the witness
formal offer begins to testify
A question Must be made as
propounded in the soon as the grounds
course of oral become reasonably
examination apparent
The grounds for objection must be specified
in any case.
[Sec. 36, Rule 132]
Waiver of Objection
When there is failure to point out some defect,
irregularity or wrong in the admission or
exclusion of evidence. Such failure may take
various forms and may either be expressed or
implied [Riano 353, 2016 Ed.]
Effect of waiver
Although hearsay evidence may be admitted
because of lack of objection, it is nonetheless
without probative value, unless the proponent
can show that the evidence falls within the
exception to the hearsay evidence rule [Bayani
v. People, G.R. No. 155619 (2007)]
4. Repetition of an Objection
When it becomes reasonably apparent in the
course of examination of a witness that the
Page 523 of 525
REMEDIAL LAW
questions being propounded are of the same
class as those to which objection was
sustained or overruled, it shall not be
necessary to repeat the objection, it being
sufficient for the adverse party to record his/her
continuing objection to such class of
questions [Sec. 37, Rule 132]
A court may, motu proprio, treat the objection
as a continuing one [Keller v. Ellerman &
Bucknall Steamship, G.R. No. L-12308 (1918)]
Objection prior to the formal offer is premature
and could not be considered by the Court as
basis for a continuing one [Interpacific Transit
v. Aviles, G.R. No. 86062 (1990)]
Where a continuing objection had been
interposed on prohibited testimony, the
objection is deemed waived where the
objecting counsel cross-examined the witness
on the very matters subject of the prohibition
[De Abraham v. Recto-Kasten, G.R. No. L-
16741 (1962)]
5. Ruling
General rule: The ruling of the court must be
given immediately after the objection is made.
Exception: The court desires to take a
reasonable time to inform itself on the question
presented; but the ruling shall always be made
during the trial and at such time as will give the
party against whom it is made an opportunity to
meet the situation presented by the ruling.
[Sec. 38, Rule 132]
A reasonable time must not extend beyond the
ninety (90)-day reglementary period from the
date of submission of the formal offer of
evidence [Beltran v. Paderanga, AM No. RTJ-
03-1747 (2003)]
The reason for sustaining or overruling an
objection need not be stated. However, if the
objection is based on two or more grounds, a
ruling sustaining the objection on one or some
of them must specify the ground/s relied upon
[Sec. 38, Rule 132]
U.P. LAW BOC EVIDENCE
Reservation of a ruling by the court on an
objection to the admissibility of evidence,
without subsequently excluding the same,
amounts to a denial of an objection [People v.
Tavera, G.R. No. L-23172 (1925)]
No Express Ruling Needed
The trial court need not make an express ruling
admitting the exhibits if there is no objection
interposed to their admission [Herrera, citing
Boix v. Rivera, CA Rep. 2d 104]
The ruling of the court is required only when
there is an objection to a question or to the
admission of an exhibit [Herrera]
Objections based on irrelevancy and
immateriality need no specification or
explanation. Relevancy or materiality of
evidence is a matter of logic, since it is
determined simply by ascertaining its logical
connection to a fact in issue in the case [Cruz-
Arevalo v. Querubin-Layosa, AM No. RTJ-06-
2005 (2006)]
6. Striking Out an Answer
Motion to Strike
A motion to strike out goes to admissibility and
not to weight; evidence should not be stricken
out because of its little probative value
[Herrera]
1. Court may sustain an objection and order
the answer, testimony, or narration to be
stricken off the record if:
a. the witness answers the question
before the adverse party had the
opportunity to object;
b. a question is not objectionable, but the
answer is not responsive;
c. the witness testifies without a question
being posed;
d. the witness testifies beyond limits set
by the court; or
e. the witness does a narration instead of
answering the question; AND
f. such objection is found to be
meritorious.
2. The court may also, upon motion, order the
striking out of answers, which are
Page 524 of 525
REMEDIAL LAW
a. incompetent,
b. irrelevant or
c. otherwise improper
[Sec. 39, Rule 132]
Motion to strike out should specify
objection
A motion to strike out should specify the
objection as well as the portion of the evidence
which is objected to [Herrera]
7. Tender of Excluded Evidence
The procedure in Section 40 is known as the
offer of proof or tender of excluded evidence
and is 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.
The appellate court will better understand and
appreciate the assignment of error if the
evidence involved is included in the record of
the case [Cruz-Arevalo v. Querubin-Layosa,
AM No. RTJ-06-2005 (2006)]
The SC had advised trial courts to allow the
rejected [documentary] evidence to be
attached to the record to enable the appellate
court to examine the same and determine
whether the exclusion of the same was proper
or not [Herrera, citing Banez v. C.A., G.R. No.
L-30351 (1974)]
If an exhibit sought to be presented in evidence
is rejected, the party producing it should ask
the courts permission to have the exhibit
attached to the record. Any evidence that a
party desires to submit for the consideration of
a higher court must be formally offered by him
otherwise it is excluded and rejected and
cannot even be taken cognizance of on appeal
[Catacutan v. People, G.R. No. 175991 (2011)]
Before tender of excluded evidence is made,
the evidence must have been formally offered
before the court. And before formal offer of
evidence is made, the evidence must have
been identified and presented before the court
[Yu v. C.A., G.R. No. 154115 (2005)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

How to Tender Evidence case. Any such opportunity, however, for the
Kind of How to tender the ultimate purpose of the admission of additional
evidence evidence evidence is already addressed to the sound
Offeror may have the same discretion of the court [Republic v.
Documentary attached or made part of Sandiganbayan, G.R. No. 152375 (2011)
the record
Offeror may state for the
record the name and other
personal circumstances of
Testimonial
the witness and the
substance of the proposed
testimony
[Sec. 40, Rule 132]

Rationale
1. to allow the court to know the nature of the
testimony or the documentary evidence
and convince the trial judge to permit the
evidence or testimony; and
2. even if he is not convinced to reverse his
earlier ruling, the tender is made to create
and preserve a record for appeal
[Riano 360, 2016 Ed.]

Two Methods of making the Tender

1. Where the counsel tells the court what the
proposed testimony would be;
2. By using the question and answer form
[Riano 361-362, 2016 Ed.]

Erroneous Way of Making Tender

To make a mere general “offer of proof” without
producing the witness or stating the evidence
where by the fact in issue is to be proved
[Riano 364, 2016 Ed., Douillard v. Wood, 20
C2d 670, 128 P2d 6 (1942)]

Harmless error rule

In dealing with evidence improperly admitted in
trial, we examine its damaging quality and its
impact to the substantive rights of the litigants.
If the impact is slight and insignificant, we
disregard the error as it will not overcome the
weight of the properly admitted evidence
against the prejudiced party [People v.
Teehankee, G.R. No. 111206 (1995)]

The Rules of Court does not prohibit a party

from requesting the court to allow it to present
additional evidence even after it has rested its

Page 525 of 525