TABLE OF CONTENTS
CIVIL PROCEDURE
A. JUDGMENTS IN GENERAL ........................... 95 B. CONTENTS OF A JUDGMENT....................... 97 C. JUDGMENT ON THE PLEADINGS ................ 98
I. GENERAL CONCEPTS ............................... 2
D. SUMMARY JUDGMENTS .............................. 98
A. CONCEPT OF REMEDIAL LAW ........................2
E. RENDITION OF JUDGMENTS AND FINAL ORDERS ............................................................ 101
B. SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW .......................................................................2
F. ENTRY OF JUDGMENT AND FINAL ORDER 101
C. RULE MAKING POWER OF THE SUPREME COURT .................................................................. 3
G. AMENDMENTS TO JUDGMENT .................. 101
V. POST-JUDGMENT REMEDIES .............. 102
D. NATURE OF PHILIPPINE COURTS ................ 4
II. JURISDICTION ......................................... 6
A. MOTION FOR NEW TRIAL OR RECONSIDERATION ........................................ 102
A. ASPECTS OF JURISDICTION ...........................6
B. APPEALS ......................................................105
B. JURISDICTION OF COURTS .......................... 10 C. JURISDICTION OVER SMALL CLAIMS .......... 17
COMPARATIVE TABLE ON THE MODES OF APPEAL .................................................... 123
D. CASES COVERED BY RULES ON SUMMARY PROCEDURE ...................................................... 17
C. RELIEF FROM JUDGMENTS. ORDERS, AND OTHER PROCEEDINGS .................................... 125
E. CASES COVERED BY BARANGAY CONCILIATION ................................................... 17
D. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS ......................... 127
F. TOTALITY RULE.............................................. 18
E. COLLATERAL ATTACK OF JUDGMENTS .... 129
III. COMMENCEMENT OF ACTIONS TO TRIAL .................................................................... 18
VI. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS .......................... 130
A. ACTIONS......................................................... 18 B. CAUSE OF ACTION ........................................ 21
A. FINALITY FOR PURPOSES OF APPEAL AND FOR PURPOSES OF EXECUTION .................... 130
D.VENUE ............................................................ 30
B. WHEN EXECUTION SHALL ISSUE ................ 131
E. PLEADINGS .................................................... 31
C. HOW JUDGMENT IS EXECUTED ................. 134
F. SUMMONS ..................................................... 53
D. PROPERTIES EXEMPT FROM EXECUTION 139
G. MOTIONS IN GENERAL ................................ 58
E. PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSONS .........................................141
I. MOTION FOR BILL OF PARTICULARS .......... 60
F. RULES ON REDEMPTION ............................ 142
J. MOTION TO DISMISS...................................... 61
G. REMEDIES OF JUDGMENT CREDITOR IF JUDGMENT NOT SATISFIED ............................ 145
K. DISMISSAL OF ACTIONS .............................. 68 L. PRE-TRIAL ..................................................... 70
H. EFFECT OF JUDGMENT OR FINAL ORDERS ........................................................................... 146
M. INTERVENTION ............................................. 77 N. SUBPOENA ....................................................78 O. MODES OF DISCOVERY ............................... 80
I. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENT OR FINAL ORDERS ...................... 148
P. TRIAL ............................................................. 89
VII. PROVISIONAL REMEDIES .................. 149
Q. DEMURRER TO EVIDENCE .......................... 94
A. PRELIMINARY ATTACHMENT .....................150
IV. JUDGMENTS AND FINAL ORDERS ....... 95
B. PRELIMINARY INJUNCTION ........................ 154 C. RECEIVERSHIP ............................................. 159
i
TABLE OF CONTENTS D. REPLEVIN ..................................................... 162
C. VENUE .......................................................... 215
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES ........................ 166
D. EXTENT OF JURISDICTION OF PROBATE COURT .............................................................. 216
VIII. SPECIAL CIVIL ACTIONS.................... 168
E. POWERS AND DUITIES OF A PROBATE COURT .............................................................. 216
A.
IN GENERAL ........................................... 168
III. SUMMARY SETTLEMENT OF ESTATES 217
B. INTERPLEADER ........................................... 169
A. EXTRAJUDICIAL SETTLEMENT OF ESTATES ........................................................................... 217
C. DECLARATORY RELIEFS AND SIMILAR REMEDIES ........................................................ 170
B. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE .................................................. 218
D. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA .......................................................... 172
C. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE .. 219
E. CERTIORARI, PROHIBITION, MANDAMUS 173
IV. PRODUCTION AND PROBATE OF WILL ................................................................. 220
F. QUO WARRANTO ........................................ 180 G. EXPROPRIATION ........................................ 182
A. NATURE OF PROBATE PROCEEDINGS ..... 220
H. FORECLOSURE OF REAL ESTATE MORTGAGE ...................................................... 188
V. ALLOWANCE OR DISALLOWANCE OF WILL ......................................................... 221
I. PARTITION ..................................................... 192
A. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE .................... 221
J. FORCIBLE ENTRY AND UNLAWFUL DETAINER......................................................... 195 K. CONTEMPT.................................................. 200
B. CONTENTS OF PETITION FOR ALLOWANCE OF WILL............................................................ 222
THE SPECIAL CIVIL ACTIONS .................. 205
C. GROUNDS FOR DISALLOWING A WILL..... 223
IX. SPECIAL RULES .................................. 207
D. REPROBATE................................................ 224
A. REVISED RULES ON SUMMARY PROCEDURE .......................................................................... 207
F. EFFECTS OF PROBATE ............................... 224
VI. LETTERS TESTAMENTARY AND OF ADMINISTRATION ................................... 224
B. KATARUNGANG PAMBARANGAY LAW (PD 1508; RA 7160 AS AMENDED) ........................ 208
A. WHEN AND TO WHOM LETTERS OF ADMINISTRATION ARE GRANTED ................ 224
C. RULES OF PROCEDURE FOR SMALL CLAIMS CASES (A.M. NO. 08-8-7-SC) ......................... 209
B. ORDER OF PREFERENCE ........................... 226
D. EFFICIENT USE OF PAPER RULE (A.M. NO. 119-4-SC) .............................................................. 211
C. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION ................. 226
SPECIAL PROCEEDINGS
D. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS .......................................................... 227
I. SPECIAL PROCEEDINGS ........................ 214
D.1. GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS ........... 228
A. SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES ............................................. 214
D.2. RESTRICTIONS ON POWERS OF EXECUTORS AND ADMINISTRATORS ........... 228
A. MODES OF SETTLEMENT OF ESTATE ........ 215 B. JURISDICTION .............................................. 215
E. APPOINTMENT OF SPECIAL ADMINISTRATOR ............................................ 230
ii
TABLE OF CONTENTS F. REVOCATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS .......................................... 231
D. GROUDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE................................................. 245 E. EXTENT OF AUTHORITY OF TRUSTEE ...... 245
VII. CLAIMS AGAINST THE ESTATE ..........232
XII. GUARDIANSHIP ................................ 245
A. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS ....................................... 232
A. GUARDIANSHIP OF INCOMPETENT PERSONS NOT MINORS ................................. 246
B. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE ...................................... 234
B. RULE IN GUARDIANSHIP OVER MINOR (A.M. NO. 03-02-05-SC) ........................................... 248
C. PAYMENT OF DEBTS .................................. 234
XIII. ADOPTION........................................ 252
VIII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS ..... 237
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION......................... 252
A. ACTIONS BY AND AGAINST EXECUTORS .. 237
B. DOMESTIC ADOPTION ACT ....................... 256
B. RECOVERY OF PROPERTY CONCELEAD, EMBEZZLED OR FRADULENTLY CONVEYED 238
C. INTER-COUNTRY ADOPTION .................... 257
XIV. WRIT OF HABEAS CORPUS .............. 258
WHEN RECOVERY BY CREDITOR OF PROPERTY FRAUDULENTLY CONVEYED MAY BE DONE 238
A. CONTENTS OF THE PETITION ................... 260 B. CONTENTS OF THE RETURN ..................... 260
C. SALES, MORTGAGES, AND OTHER ENCUMBRANCES ........................................... 239
C. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION ................................. 261
WHEN PERSONAL ESTATE IS NOT SUFFICIENT TO PAY DEBTS, EXPENSES OF ADMINISTRATION AND LEGACIES; OR......... 239
D. WHEN NOT PROPER OR APPLICABLE ...... 261 E. WHEN WRIT DISALLOWED OR DISCHARGED ........................................................................... 261
IX. DISTRIBUTION AND PARTITION ........ 240 A. LIQUIDATION .............................................. 240
F. DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA ........................................ 262
B. PROJECT OF PARTITION ............................. 241
G. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) .......................................................................... 262
C. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE ........................... 241 D. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION ........................... 241
XV. WRIT OF AMPARO (A.M. 07-9-12-SC) 266
X. ESCHEAT ............................................. 242
A. COVERAGE .................................................. 266
A. WHEN TO FILE ............................................ 242 B. REQUISITES FOR FILING OF PETITION ..... 242
B. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA ................................................. 267
C. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM. ..... 243
C. AMPARO VS SEARCH WARRANT .............. 267 D. WHO MAY FILE ........................................... 267
XI. TRUSTEES .......................................... 243
E. CONTENTS OF RETURN ............................. 268
A. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR ....................... 243
F. EFFECTS OF FAILURE TO FILE RETURN ... 269 G. OMNIBUS WAIVER RULE ........................... 269
B. CONDITIONS OF THE BOND ...................... 244
H. PROCEDURE FOR HEARING ..................... 269
C. REQUISITES FOR THER REMOVAL AND RESIGNATION OF A TRUSTEE ....................... 245
I. INSTITUTION OF SEPARATE ACTION ......... 270 J. EFFECT OF FILING A CRIMINAL ACTION ... 270
iii
TABLE OF CONTENTS
CRIMINAL PROCEDURE
K. CONSOLIDATION ........................................ 270 L. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT .................. 270
I. GENERAL MATTERS ............................. 296
M. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO ................... 271
A. JURISDICTION OVER SUBJECT MATTER AND JURISDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED ............................ 296
XVI. WRIT OF HABEAS DATA (A.M. NO. 08-116-SC) ....................................................... 272 A. SCOPE OF THE WRIT ...................................272
B. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION ................................................. 297
B. AVAILABILITY OF WRIT ...............................272
C. JURISDICTION OF CRIMINAL COURTS ..... 297
C. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO .................................................. 273
D. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION ........... 299
D. CONTENTS OF THE PETITION .................... 273
II. PROSECUTION OF OFFENSES ............. 299
E. CONTENTS OF THE RETURN ...................... 273
A. CRIMINAL ACTIONS; HOW INSTITUTED ... 299
F. INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS ..................................................274
B. WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFICIO ............................... 300
G. CONSOLIDATION ........................................274
C. CRIMINAL ACTIONS; WHEN ENJOINED .... 302
H. EFFECT OF FILING CRIMINAL ACTION ......274
D. CONTROL OF PROSECUTION .................... 302
I. INSTITUTION OF SEPARATE ACTION ..........274
XVII. CHANGE OF NAME ...........................274
E. SUFFICIENCY OF COMPLAINT OR INFORMATION ................................................ 303
XVIII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY .............276
F. DUPLICITY OF THE OFFENSE; EXCEPTION .......................................................................... 306
A. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION IN RELATION TO R.A. 9048 ....276
G. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION .................... 306
RA 9048, AS AMENDED BY RA 10172 ............. 277
H. VENUE OF CRIMINAL ACTIONS................. 308
XIX. ABSENTEES....................................... 277
I. INTERVENTION OF OFFENDED PARTY ...... 309
III. PROSECUTION OF CIVIL ACTION ....... 309
A. PURPOSE OF THE RULE ............................. 277
A. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION .................. 309
B. WHO MAY FILE; WHEN TO FILE .................. 277
XX. APPEALS IN SPECIAL PROCEEDINGS 278
B. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY ............................................ 309
A. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN ................................. 278
C. WHEN SEPARATE CIVIL ACTION IS SUSPENDED ..................................................... 310
B. WHEN TO APPEAL .......................................279 C. MODES OF APPEAL .....................................279
D. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION ............................. 310
D. RULE ON ADVANCE DISTRIBUTION ..........279
E. PREJUDICIAL QUESTION ............................ 310
WRIT MATRIX (COMPARISON OF THE WRITS) .................................................... 280
F. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION .............................................................. 311
iv
TABLE OF CONTENTS IV. PRELIMINARY INVESTIGATION .......... 312
I. APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION ..................... 326
A. NATURE OF RIGHT ...................................... 312 B. PURPOSES OF PRELIMINARY INVESTIGATION ............................................... 312
J. HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST .......327
C. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE ................. 313
VII. RIGHTS OF THE ACCUSED ................ 328
D. RESOLUTION OF THE INVESTIGATING PROSECUTOR .................................................. 314
A. RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT .................................... 328
E. REVIEW ......................................................... 314
B. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM ................................................................... 328
F. WHEN WARRANT OF ARREST MAY ISSUE 315 G. CASES NOT REQUIRING PRELIMINARY INVESTIGATION NOR COVERED BY THE RULE ON SUMMARY PROCEDURE ........................... 315
C. RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS................................... 329
H. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION ...................... 316
C.1. RIGHT TO BE PRESENT ............................ 329
I. INQUEST ........................................................ 316
V. ARREST ................................................ 317
D. RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF ............................................................ 330
A. IMMUNITY .................................................... 317
E. RIGHT AGAINST SELF-INCRIMINATION .... 330
B. HOW MADE .................................................. 317
F. RIGHT TO CONFRONTATION ..................... 330
D. METHOD OF ARREST ................................. 320
G. RIGHT TO COMPULSORY PROCESS .......... 331
E. REQUISITES OF A VALID WARRANT OF ARREST ............................................................ 321
H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL................................................................. 331
F. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST ........... 321
I. RIGHT TO APPEAL ........................................ 331 J. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS ............................................. 331
G. PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED ............................................... 321
VIII. ARRAIGNMENT AND PLEA ...............333
VI. BAIL .....................................................322
A. ARRAIGNMENT AND PLEA; HOW MADE ...333
A. NATURE ...................................................... 322
A.2.A. HOW MADE........................................... 334
B. WHEN A MATTER OF RIGHT; EXCEPTIONS .......................................................................... 322
B. WHEN A PLEA OF NOT GUILTY SHOULD BE ENTERED ......................................................... 335
C. WHEN A MATTER OF DISCRETION ............323
C. WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE ..................... 335
D. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES ....................................... 324 E. GUIDELINES IN FIXING AMOUNT OF BAIL 325
D. ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT ................... 336
F. WHEN BAIL NOT REQUIRED ...................... 325
E. SEARCHING INQUIRY ................................. 336
G. INCREASE OR REDUCTION OF BAIL ......... 325
F. IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE ........................................... 337
H. FORFEITURE AND CANCELLATION OF BAIL .......................................................................... 326
G. GROUNDS FOR SUSPENSION OF ARRAIGNMENT ................................................ 337
v
TABLE OF CONTENTS IX. MOTION TO QUASH ............................338
D. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE 389
A. WHEN FILED ............................................... 338
III. OBJECT (REAL) EVIDENCE.................. 390
B. GROUNDS ................................................... 339
X. PRE-TRIAL........................................... 345 XI. TRIAL.................................................. 348 XII. JUDGMENT ........................................ 352 XIII. NEW TRIAL OR RECONSIDERATION 356
A.
NATURE OF OBJECT EVIDENCE........... 390
B.
REQUISITES FOR ADMISSIBILITY ........ 390
C.
CATEGORIES OF OBJECT EVIDENCE .... 391
D.
DEMONSTRATIVE EVIDENCE ................ 391
E. VIEW OF AN OBJECT OR SCENE ................. 391
XIV. APPEAL ............................................ 358
F. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 ...................................... 392
XV. SEARCH AND SEIZURE ..................... 365 XIV. PROVISIONAL REMEDIES ................. 375
G. RULE ON DNA EVIDENCE .......................... 392 (A.M. NO. 06-11-5-SC) ...................................... 392
EVIDENCE
IV. DOCUMENTARY EVIDENCE................ 394 A. MEANING OF DOCUMENTARY EVIDENCE 394 B. REQUISITES FOR ADMISSIBILITY .............. 394
I. GENERAL PRINCIPLES ..........................378
C. BEST EVIDENCE RULE ................................ 394
A. CONCEPT OF EVIDENCE .............................378
D. RULES ON ELECTRONIC EVIDENCE ......... 395
B. SCOPE OF THE RULES OF EVIDENCE [SEC. 2, RULE 128] .........................................................378
(A.M. NO. 01-7-01- SC) ..................................... 395 E. PAROL EVIDENCE RULE ............................. 398
C. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES ......................378
F. AUTHENTICATION AND PROOF OF DOCUMENTS ................................................... 399
D. PROOF VERSUS EVIDENCE ........................379
V. TESTIMONIAL EVIDENCE .................... 402
E. FACTUM PROBANS VERSUS FACTUM PROBANDUM ...................................................379
A. QUALIFICATIONS OF A WITNESS .............. 402
F. ADMISSIBILITY OF EVIDENCE .....................379
B. COMPETENCY VERSUS CREDIBILITY ........ 402
G. BURDEN OF PROOF AND BURDEN OF EVIDENCE ......................................................... 381
C. DISQUALIFICATIONS OF WITNESSES ....... 403 D. EXAMINATION OF A WITNESS .................. 409
H. PRESUMPTIONS ......................................... 382
E. ADMISSIONS AND CONFESSIONS ............. 414
I. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE ........................................................ 385
F. HEARSAY RULE ............................................ 417
J. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) ......................... 385
H. OPINION RULE ........................................... 424
II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ........................................... 386
J. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) .................... 426
A. WHAT NEED NOT BE PROVED .................. 386
VI. OFFER AND OBJECTION ..................... 430
B. MATTERS OF JUDICIAL NOTICE ................ 386
A. OFFER OF EVIDENCE ................................. 430
C. JUDICIAL ADMISSIONS .............................. 388
B. WHEN TO MAKE AN OFFER [SEC. 35, RULE 132] .................................................................... 431
I. CHARACTER EVIDENCE .............................. 425
vi
TABLE OF CONTENTS C. OBJECTION [SEC. 36, RULE 132] ................. 431
E. WRIT OF CONTINUING MANDAMUS ......... 440
D. REPETITION OF AN OBJECTION [SEC. 37, RULE 132]......................................................... 432
IV. CRIMINAL PROCEDURE ..................... 442 A. WHO MAY FILE ............................................ 442
E. RULING ON THE OBJECTION [SEC. 38, RULE 132] ................................................................... 432
B. INSTITUTION OF CRIMINAL AND CIVIL ACTION ............................................................ 442
F. STRIKING OUT AN ANSWER [SEC. 39, RULE 132] ................................................................... 432
C. ARREST WITHOUT WARRANT, WHEN VALID .......................................................................... 442
G. TENDER OF EXCLUDED EVIDENCE [SEC. 40, RULE 132]......................................................... 433
RULES OF PROCEDURE ENVIRONMENTAL CASES
D. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION [SLAPP] ................................ 442 E. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS .................... 442
FOR
F. BAIL .............................................................. 443 G. ARRAIGNMENT AND PLEA ........................ 443
I. SCOPE AND APPLICABILITY OF THE RULE ................................................................. 435
H. PRE-TRIAL .................................................. 443
II. CIVIL PROCEDURE .............................. 436
V. EVIDENCE ............................................ 444
A. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION .................................................... 436
A. PRECAUTIONARY PRINCIPLE.................... 444
I. SUBSIDIARY LIABILITIES ............................. 444
B. DOCUMENTARY EVIDENCE ....................... 444
B. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) .........................437 C. DECLARATION OF DEFAULT MOTU PROPRIO ...........................................................................437 D. PRE-TRIAL CONFERENCE; CONSENT DECREE ............................................................437 E. PROHIBITED PLEADINGS AND MOTIONS .437 F. PERIOD TO TRY AND DECIDE .....................437 G. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN SUIT ................................................... 438 H. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS .................................................... 438 I. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ................................ 438
III. SPECIAL CIVIL ACTIONS ..................... 439 A. WRIT OF KALIKASAN ................................. 439 B. PROHIBITED PLEADINGS AND MOTIONS 440 C. DISCOVERY MEASURES............................. 440 D. APPEAL ....................................................... 440
vii
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
REMEDIAL LAW
CIVIL PROCEDURE
1
UP LAW BOC
CIVIL PROCEDURE
I. General Concepts
REMEDIAL LAW
(5) Insolvency proceedings (6) Other cases not provided for in the Rules of Court
A. CONCEPT OF REMEDIAL LAW
Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 1, Sec. 4]
Remedial law – traditional term given to the rules which prescribe the procedure for the protection and enforcement of all claims arising from the rights and duties created by law [Riano]
A.3 PROSPECTIVITY/ RETROACTIVITY The Rules of Court are not penal statutes and cannot be given retroactive effect. [Bermejo v Barrios (1970)].
That branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v. Lucero, 81 Phil. 640).
However, they may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)].
A.1 SOURCE Remedial law is basically contained in the Rules of Court. Circulars of the Supreme Court implementing the Rules of Court (e.g. Rules on Summary Procedure) also contain remedial law.
The reason for this is because there are no vested rights in the rules of procedure. [Go v. Sunbanon]
The Rules of Court, do not originate from the legislature and cannot be called laws in the strict sense. However, since they are promulgated by authority of law, they have the force and effect of law, if not in conflict with positive law. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Riano citing Alvero v. Dela Rosa; Shioji v Harvey (1922)]
Procedural rules do not apply to pending actions: (1) where the statute itself or by necessary implication provides that pending actions are excepted from its application; (2) if applying the rule to pending actions would impair vested rights; (3) when to do so would not be feasible or would work injustice; (4) if doing so would involve intricate problems of due process or impair the independence of the courts. [Riano citing Tan v. CA]
A.2 APPLICABILITY The Rules of Court shall apply in all the courts, except as otherwise provided by the SC. [Rule 1, Sec. 2] It shall govern the procedure to be observed in civil or criminal actions, and special proceedings. [Rule 1, Sec. 3]
B. SUBSTANTIVE REMEDIAL LAW
It does not apply to the following cases: (1) Election cases, (2) Land registration cases, (3) Cadastral cases (4) Naturalization cases,
LAW
VIS-À-VIS
Substantive Law - creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action (Bustos v. Lucero, 81 Phil. 640) 2
UP LAW BOC
CIVIL PROCEDURE
SUBSTANTIVE LAW
REMEDIAL LAW
Creates, defines, or regulates rights, concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs It makes vested rights possible
Legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained; also called Adjective Law
Prospective application
in
Cannot be enacted by the SC
REMEDIAL LAW
shared by the Court with Congress, more so with the executive. [Echegaray v. Secretary of Justice]
C.1 POWER OF THE SC TO AMEND PROCEDURAL RULES 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 (2005)]
It has no vested rights Governs acts and transactions which took place (retroactive) SC is expressly empowered to promulgate procedural rules
The constitutional faculty of the Court to promulgate rules necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v. Heirs of Santiago (2006)].
C. RULE MAKING POWER OF THE SUPREME COURT
C.2 POWER OF SC TO SUSPEND
Sec. 5(5), Art. VIII, of the 1987 CONST provides that that the Supreme Court 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; (5) and legal assistance to the underprivileged
The Rules of Court shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. [Rule 1.6] The courts have the power to relax or suspend procedural rules, or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. [Comm’r of Internal Revenue v. Mirant Pagbilao Corp.]
The same section sets forth the limitations to the power: (1) The rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; (2) The rules shall be uniform for courts of the same grade; and (3) The rules shall not diminish, increase or modify substantive rights.
Procedural rules were conceived to aid the attainment of justice. If a stringent application of the rules would hinder rather than serve the demands of substantial justice, the former must yield to the latter. [City of Dumaguete v. Phil. Ports Authority]
The 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure. The power to promulgate rules is no longer
However, compliance with the procedural rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances. [Pilapil v. Heirs of Briones] 3
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as Distinguished from a Judge A court is an organ of government with a personality separate and distinct from the judge who sits on it. [People v. Carlos]
Save for the most persuasive reasons, strict compliance with the rules is enjoined to facilitate the orderly administration of justice. [Novateknika v. PNB]
Court Tribunal officially assembled under authority of law Comparable to corporation
Concomitant to a procedure adopting a liberal application of the rules should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules. [Abrenica v. Abrenica]
Judge Officer tribunal
of
such
a A physical or natural person
Jurisdiction does not attach to the judge but to the court. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. [ABC Davao Auto Supply v. CA (1998)].
They must be able to hurdle that heavy burden of proving that they deserve an exceptional treatment. The Court did not intend “to forge a bastion for erring litigants to violate the rules with impunity. [Prieto v. Alpadi Development Corp. (2013)]
D.2 CLASSIFICATION OF PHIL. COURTS
The reasons which would warrant suspension of the Rules are: (1) The existence of special and compelling circumstances; (2) The merits of the case; (3) A cause not entirely attributable to the fault or negligence of the party favored by the suspension; (4) A lack of any showing that the reviw sought is merely frivolous or dilatory; and (5) The rights of the other party will not be unjustly prejudiced thereby. [Sarmiento v. Zaratan]
i. Courts of original and appellate jurisdiction Courts of original jurisdiction – Those courts in which, under the law, actions or proceedings may be originally commenced. Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. [Rule egalado] ii. Courts of general and special jurisdiction Courts of general jurisdiction – Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules.
D. NATURE OF PHILIPPINE COURTS D.1 MEANING OF A COURT Court – an organ of government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it as well as the public administration of justice.
Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Rule egalado]
It is also the place where justice is administered. [Riano citing Black’s Law Dictionary, Am. Jur. and C. J. S.]
iii. Constitutional and statutory courts Constitutional courts – Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence 4
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or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionally-mandated court but created by statute.
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Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein. All Philippine courts, including inferior courts, are now courts of record. [Riano]
Statutory courts – Those created, organized and with jurisdiction exclusively determined by law. [Rule Regalado]
D.3 PRINCIPLE OF JUDICIAL HIERARCHY Doctrine of hierarchy of courts – Where courts have concurrent jurisdiction over a subject matter, a case must be filed before the lowest court possible having the appropriate jurisdiction, except if one can advance a special reason which would allow direct recourse to a higher court.
iv. Courts of law and equity Courts of Law- Those courts which administer the law of the land. They settle cases according to law. Courts of Equity- Those courts which rules according to the precepts of equity or justice. They settle cases according to the principles of equity referring to principles of justice, fairness and fair play. Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal. [US v. Tamparong (1998)]
The rationale is two-fold: (1) It would be an imposition upon the limited time of the Court; and (2) It would inevitably result in a delay, in the adjudication of cases, which are remanded or referred to the lower court as the proper forum, or a trier of facts. [People v. Azarraga]
v. Superior and Inferior Courts Superior courts – Courts which have the power of review or supervision over another and lower court.
The SC may disregard the doctrine if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations.
Inferior courts – Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Rule egalado]
Direct resort to the SC has been allowed in the following cases: (1) where there are special and important reasons clearly stated in the petition; (2) When dictated by public welfare and the advancement of public policy; (3) When demanded by the broader interest of justice; (4) When the challenged orders were patent nullities; (5) When analogous exceptional and compelling circumstances called for and justified the immediate and direct handling
vi. Courts of record and not of record Courts of record – Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. [Rule egalado] There exists a strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. 5
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by the Court. [Rule epublic v. Caguioa (2013)]
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(2) to determine WON there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government. [Sec. 1, Art. VIII, 1987 Constitution]
D.4 DOCTRINE OF NON-INTERFERENCE Also known as the doctrine of judicial stability
Judicial review -- the power of the Court to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional.
Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp. (2002)] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. [Villamor v. Salas (1991)]
A. ASPECTS OF JURISDICTION [Boston Equity Resources, Inc. v. CA (2013)]
The doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Sinter Corp. v. Cagayan Electric Power (2002)].
A.1 JURISDICTION OVER THE PARTIES The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant. Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court. [Davao Light & Power Co., Inc. v CA (1991)]
General Rule: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court
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. [Rule 14.20; Macasaet v. Co (2013)]
Exception: The doctrine of judicial stability does not apply where a third party claimant is involved
II. Jurisdiction
Jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case only in an action in personam. It is not a prerequisite in an action in rem or quasi in rem, provided that the court acquires jurisdiction over the res. [Alba v. CA (2005)]
Jurisdiction – the authority to try, hear and decide a case. [Tolentino v. Leviste (2004)] Judicial Power includes the duty of the courts of justice: (1) to settle actual controversies involving rights, which are legally demandable and enforceable; and
An objection to jurisdiction over the person of the defendant may be raised as a ground in a
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Motion to Dismiss [Rule .16.1(a)] or as an affirmative defense in an Answer [Rule 16.6].
Renders a judgment void or voidable.
However, if not raised in such Motion or Answer, it is deemed waived. It is not one of those defenses not deemed waived under Section 1, Rule 9. [Boston Equity Resources, Inc. v. CA (2013)]
Ground for reversal only if it is shown that prejudice has been caused.
iii. How Conferred and Determined [Medical Plaza Makati Condominium v. Cullen] Jurisdiction over subject matter is conferred by law, which may be either the Constitution or statute. [City of Dumaguete v. PPA]
A.2 JURISDICTION OVER THE SUBJECT MATTER Jurisdiction over the subject matter – the power of a particular court to hear the type of case that is then before it [Riano citing Black’s Law Dictionary]
Since jurisdiction over the subject matter is conferred by law, it cannot be: (1) granted by agreement of the parties; (2) acquired, waived, enlarged, or diminished by any act or omission of the parties; or (3) conferred by the acquiescence of the courts. [De la Rosa v. Roldan] (4) subject to compromise [Article 2035, Civil Code]
It is the power to hear and determine cases of the general class to which the proceedings in question belong. [Rule eyes v. Diaz (1941)] i. Jurisdiction Versus the Exercise of Jurisdiction Jurisdiction refers to the power or authority of the court. [Arranza v. BF Homes (2000)] while the exercise of this power or authority is the exercise of jurisdiction.
The statute in force at the time of the commencement of the action determines the jusridiction of the courts. [Baritua v. Mercader] Jurisdiction over the subject matter is determined by the allegations in the complaint, which comprise a concise statement of the ultimate facts constituting the plaintiff’s cause of action.
Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Republic v. “G” Holdings, Inc.]
It does not depend on whether the plaintiff is entitled to recover on some or all the claims asserted, as the averments in the complaint and the character of the relief sought are the ones to be consulted. [City of Dumaguete v. PPA]
ii. Error of Jurisdiction as Distinguished from Error of Judgment Error of jurisdiction One where the act complained of was (1) without jurisdiction, in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. Correctible only by the extraordinary writ of certiorari.
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Error of judgment One which the court may commit in the exercise of its jurisdiction. It includes errors of procedure or mistakes in the court’s findings.
It also does not depend upon defenses set up in the answer or upon the motion to dismiss; otherwise, the question would depend almost entirely on the defendant. Note: The MTC does not lost jurisdiction over ejectment cases by mere allegation of a
Correctible by appeal.
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tenancy relationship. However, if after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction. [Hilado v. Chavez]
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(9) when the issue of non-exhaustion of administrative remedies has been rendered moot; (10) when there is no other plain, speedy, adequate remedy; (11) when strong public interest is involved; and (12) in quo warranto proceedings. [Province of Aklan v. Jody King Construction and Development Corp. (2013)]
iv. Doctrine of Primary Jurisdiction Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. Mora (2005)].
v. Doctrine of Adherence of Jurisdiction Also known as doctrine of continuity of jurisdiction Once jurisdiction has attached, cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. The court retains that jurisdiction until it finally disposes of the case. [Bantua v. Mercader (2001)]
The objective is to guide a 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 [Riano citing Omictin v. CA (2007)]
As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, except: (1) Where there is an express provision in the statute (2) The statute is clearly intended to apply to actions pending before its enactment. [People v. Cawaling (1998)]
The exceptions to the Doctrine of Primary Jurisdiction are: (1) where there is estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (4) where the amount involved is relatively small; (5) where the question involved is purely legal and will ultimately have to be decided by the courts; (6) where judicial intervention is urgent; (7) when its application may cause great and irreparable damange; (8) where the controverted acts violate due process;
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 same. [Rule 9, Sec. 1] The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu, take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction [Fabian v. Desierto (1998)].
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A.3 JURISDICTION OVER THE ISSUES
The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. [Rule 16, Sec. 1(b)]
It is the power of the court to try and decide issues raised in the pleadings of the parties. [Rule eyes v. Diaz] 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.
If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Rule 16.6].
Generally, jurisdiction over the issues is conferred and determined: (1) by the pleadings of the parties, which present the issues to be tried and determine whether or not the issues are of fact or law [Rule eyes v. Diaz]; (2) by stipulation of the parties as when, in the pre-trial, the parties enter into stipulations of facts or enter into agreement simplifying the issues of the case [Rule .18.2]; (3) by 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 or issues not raised by the pleadings. [Rule 10.5]
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.] When the court dismisses the complaint for lack of jurisdiction over subject matter, it is submitted that the court should not remand the case to another court with the proper jurisdiction. Its only has authority to dismiss and not to make any other order. [Riano]
A.4 JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
vi. Effect of Estoppel on Objections to Jurisdiction General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is conferred by law. Where there is none, no agreement of the parties can provide one. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. [SEAFDEC-AQD v. NLRC (1992)]
“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. [Riano citing Black’s Law Dictionary] Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action.
Exception: Participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court’s jurisdiction. [Soliven v. Fastforms (2004)]
Jurisdiction over the res may be acquired: (1) By placing the property under its custody (custodia legis), or by seizure of the thing under legal process whereby it is brought into actual custody of law
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(2) By statutory authority conferring upon the court the power to deal with certain property within the territorial jurisdiction.
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By way of petition for review on certiorari (appeal by certiorari under Rule 45) against: (1) CA (2) Sandiganbayan (3) RTC on pure questions of law and CTA in its decisions rendered en banc.
This is called potential jurisdiction over the res and results from institution of a legal proceedings under such statute by which the power of the court is recognized and made effective.
This appellate jurisdiction applies: (1) In cases involving the constitutionality or validity of a law or treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or penalty, jurisdiction of a lower court; and (2) All cases in which the jurisdiction of any court is in issue; (3) All cases in which an error or question of law is involved
B. JURISDICTION OF COURTS B.1 SUPREME COURT Exclusive Original Jurisdiction Petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan. Concurrent Original Jurisdiction (1) With CA (a) Petitions for certiorari, prohibition, and mandamus against: (i) Regional Trial Courts; (ii) Civil Service Commission; (iii) Central Board of Assessment Appeals; (iv) NLRC, and other Quasi-judicial agencies. (b) Petitions for writ of kalikasan
The SC may resolve factual issues in certain exceptional circumstances [Josefa v. Zhandong, (2003)] (1) The conclusion is grounded on speculations/ surmises /conjectures (2) The inference is manifestly mistaken/absurd/impossible; (3) There is grave abuse of discretion; (4) The judgment is based on a misapprehension of facts; (5) The findings of fact are conflicting; (6) There is no citation of specific evidence on which the factual findings are based; (7) The finding of absence of facts is contradicted by the presence of evidence on record; (8) The findings of the CA are contrary to those of the trial court; (9) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) The findings of the CA are beyond the issues of the case;
(2) With RTC in cases affecting ambassadors, public ministers and consuls. (3) With CA and RTC (a) petitions for certiorari, prohibition and mandamus against lower courts and bodies; (b) petitions for quo warranto; (c) petitions for writs of habeas corpus. (4) With CA, RTC and Sandiganbayan (a) Petitions for writ of amparo and habeas data. Appellate Jurisdiction 10
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(c) from decisions of the Office of the Ombudsman in administrative disciplinary cases.
B.2 COURT OF APPEALS B.3 COURT OF TAX APPEALS
Exclusive Original Jurisdiction in actions for annulment of judgments of the RTC
UNDER RA 9282 and RULE 5, AM 05-11-07 CTA
Concurrent Original Jurisdiction (1) With SC (a) Petitions for certiorari, prohibition, and mandamus against: (i) Regional Trial Courts; (ii) Civil Service Commission; (iii) Central Board of Assessment Appeals; (iv) NLRC, and other Quasi-judicial agencies. (b) Petitions for writ of kalikasan
Exclusive Appellate Jurisdiction: (1) Decisions of 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 NIRC or other laws administered by BIR; (2) Inaction by CIR in the above-mentioned cases, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; (3) Decisions, orders or resolutions of the RTCs in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; (4) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other 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 BOC; (5) Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; (6) Decision of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are
(2) With SC and RTC (a) petitions for certiorari, prohibition and mandamus against lower courts and bodies; (b) petitions for quo warranto; (c) petitions for writs of habeas corpus. (3) With SC, RTC and Sandiganbayan (a) Petitions for writ of amparo and habeas data. Exclusive Appellate Jurisdiction (1) By ordinary appeal: (a) from the RTC and the Family Courts (b) over decisions of the MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction (2) By petition for review: (a) from judgments of the RTC rendered in its appellate jurisdiction. (b) from decisions, resolutions, orders or awards of the Civil Service Commission and other bodies mentioned in R43; and
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adverse to the government under Sec. 2315 of the Tariff and Customs Code; (7) Decisions of Secretary of Trade and Industry in the case of non-agricultural articles, and the Secretary of Agriculture in the case of agricultural articles, involving dumping duties 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.
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(2) In tax collection cases (a) Over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them in their respective territorial jurisdiction; and (b) Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.
Exclusive Original Jurisdiction (1) In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and fees claimed, exclusive of charges and penalties, at least P1M. (2) Over all criminal cases arising from violation of the NIRC and the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate);
B.4 SANDIGANBAYAN Original Jurisdiction: (1) Violations of RA 3019, or the Anti-Graft and Corrupt Practices Act (2) Violations of RA 1379, or the Anti-Ill-Gotten Wealth Act (3) Sequestration cases, under Executive Order Nos. 1, 2, 14, and 14-A (4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity, at the time of the commission of the offense: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758) (b) Members of Congress and officials thereof classified as G-27 and up under RA 6758 (c) Members of the Judiciary without prejudice to the provisions of the Constitution (d) Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution
Exclusive Appellate Jurisdiction (1) In criminal offenses (a) Over appeals from the judgment, resolutions or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction, and (b) Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction. 12
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(e) All other national and local officials classified as Grade 27 and higher under RA 6758 (f) Other offenses or felonies committed by the public officials and employees mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office (g) Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)
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If the basic issue is something other than the right to recover a sum of money, such that the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)] (2) 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
NOTE: Without the office, the crime cannot be committed.
Exception: Forcible entry and unlawful detainer cases
Appellate Jurisdiction over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.
(3) If the amount involved exceeds P300,000 outside Metro Manila or exceeds P400,000 in Metro Manila in the following cases: (a) Actions in admiralty and maritime jurisdiction, where the amount refers to the demand or claim (b) Matters of probate (testate or intestate), where the amount refers to the gross value of the estate (c) Other actions involving personal property, where the amount refers to the value of the property (d) Demand for money, where the amount refers to the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.
Concurrent Original Jurisdiction with SC, CA, and RTC for petitions for writs of habeas data and amparo NOTE: The requisites that the offender the offender occupies salary Grade 27 and the offense must be intimately connected with the official function must concur for the SB to have jurisdiction
B.5 REGIONAL TRIAL COURTS Exclusive Original Jurisdiction (1) The action is incapable of pecuniary estimation
The exclusion of “damages of whatever kind” applies to cases where the damages are merely incidental to or a consequence of the main cause of action.
If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction will depend on the amount of the claim. [Rule CPI v. CA (2002)]
However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered [Admin Circ. No. 09-94] 13
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officers or managers of such corporations, partnerships or associations (d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership of association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership of association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee.
(4) All actions involving the contract of marriage and family relations, and all civil actions falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court and of the Court of Agrarian Reform See Jurisdiction of Family Courts, infra. In areas where there are no Family Courts, the cases within their jurisdiction shall be adjudicated by the RTC (Sec. 17, RA 8369) (5) All cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions (General Original Jurisdiction)
Concurrent Original Jurisdiction (1) With SC in cases affecting ambassadors, public ministers and consuls. (2) With SC and CA (a) petitions for certiorari, prohibition and mandamus against lower courts and bodies; (b) petitions for quo warranto; (c) petitions for writs of habeas corpus. (3) With SC, CA and Sandiganbayan (a) Petitions for writ of amparo and habeas data. (4) With Insurance Commissioner for claims not exceeding P100,000
(6) Jurisdiction to Hear and Decide IntraCorporate Controversies (Sec. 52, Securities and Regulations Code) (a) Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the SEC (b) Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates; between any or all of them and the 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 (c) Controversies in the election or appointments of directors, trustees,
Appellate Jurisdiction over cases decided by lower courts in their respective territorial jurisdictions, except those made in the exercise of delegated jurisdiction, which are appealable to the CA. Special Jurisdiction - SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-
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judicial body and other special cases in the interest of justice.
B.6 FAMILY COURTS (RA 8369) (1) Petitions for guardianship, custody of children and habeas corpus involving children; (2) Petitions for adoption of children and the revocation thereof; (3) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; (4) Petitions for support and/or acknowledgment; (5) Summary judicial proceedings brought under the provisions of the Family Code; (6) Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cognizable under PD 603, EO 56, s. 1986, and other related laws; (7) Petitions for the constitution of the family home; (8) Cases against minors cognizable under the Dangerous Drugs Act, as amended; (9) Violations of RA 7610, or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act; and (10) Cases of domestic violence against Women and Children
(2)
(3) (4) (5) (6)
(7) (8) (9)
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not exceed P400,000 in Metro Manila in the following cases: (a) Actions in admiralty and maritime jurisdiction; (b) Matters of probate (testate or intestate); (c) Other actions involving personal property; (d) Demand for money; Actions involving title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside Metro Manila or does not exceed P50,000 in Metro Manila Inclusion and exclusion of voters Those governed by the Rules on Summary Procedure Forcible entry and unlawful detainer (FEUD) With jurisdiction to resolve issue of ownership to determine ONLY issue of possession (provisional only) Irrespective of the amount of damages or unpaid rentals sought to be recover Where attorney’s fees are awarded, the same shall not exceed P20,000 Other civil cases, except probate proceeding, where the total amount of the plaintiff’s claim does not exceed P200,000 in MM, exclusive of interests and costs.
Special Jurisdiction over petition for writ of habeas corpus OR application for bail in criminal cases in the absence of all RTC judges in the province or city Delegated Jurisdiction to hear and decide cadastral and land registration cases where: (1) There is no controversy over the land (2) In case of contested lands, the value does not exceed P100, 000: (a) The value is to be ascertained: (i) By the claimant’s affidavit
B.7 METROPOLITAN TRIAL COURTS/ MUNICIPAL TRIAL COURTS Exclusive Original Jurisdiction (1) If the amount involved does not exceed P300,000 outside Metro Manila or does
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(ii) By agreement of the respective claimants, if there are more than one (iii) From the corresponding tax declaration of the real property
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Concurrent Jurisdiction of Shari’a District Courts The Shari’a courts shall have original jurisdiction concurrently with existing civil courts for: (1) Petitions of Muslim for the constitution of the family home, change of name and commitment of an insane person to an asylum; (2) All other personal and legal actions not mentioned in par. (d) of the immediately preceding topic, wherein the parties involved are Muslims Exception: those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the MTC. (3) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims
NOTE: MTC decisions in cadastral and land registration cases are appealable in the same maner as RTC decisions 1st level courts: (a) Metropolitan Trial Court – Metro Manila; (b) Municipal Trial Courts in Cities – situated in cities (c) Municipal Circuit Trial Court – composed of multi-sala (d) Municipal Trial Courts – in one municipality
B.8 SHARI’A COURTS Exclusive Original Jurisdiction of Shari’a District Courts (1) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; (2) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration of appointment administrators or executors regardless of the nature or aggregate value of the property; (3) Petitions for the declaration of absence and death for the cancellation and correction of entries in the Muslim Registries; (4) All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and (5) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus and all other auxiliary writs and processes in aid of its appellate jurisdiction
Appellate Jurisdiction of Shari’a District Courts Such courts have appellate jurisdiction over all cases tried in the Shari’a Circuit Courts within their territorial jurisdiction. Exclusive Original Jurisdiction of Shari’a Circuit Courts (1) Offenses defined and punished under PD 1083 (2) Disputes relating to: (a) Marriage; (b) Divorce under PD 1083; (c) Betrothal or breach of contract to marry; (d) Customary dowry (mahr); (e) Disposition and distribution of property upon divorce; (f) Maintenance and support and consolatory gifts (mut’a); and (g) Restitution of marital rights (3) Disputes relative to communal properties
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The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties.
C. JURISDICTION CLAIMS
OVER
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amount of damages or unpaid rentals sought to be recovered; and (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.
SMALL
Probate proceedings are not covered by the Rule on Summary Procedure even if the gross value of the estate does not exceed the abovementioned amounts.
MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money where the value of the claim does not exceed P100,000 exclusive of interest and costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009).
Prohibited Pleadings [Sec. 19, 1991 Revised Rule on Summary Procedure] (1) Motion to dismiss the compliant except on the ground of (a) failure to comply with barangay conciliation proceedings; or (b) lack of jurisdiction over the subject matter (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; (11) Third-party complaints; and (12) Interventions.
Applicability [Sec. 4, AM 08-8-7-SC, as amended] (1) 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, and (2) The civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111. These claims may be: (1) For money owed under the contracts of lease, loan, services, sale, or mortgage; (2) For damages arising from fault or negligence, quasi-contract, or contract; and (3) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim pursuant to Sec. 417 of RA 7160 (LGC).
E. CASES COVERED BY BARANGAY CONCILIATION
D. CASES COVERED BY RULES ON SUMMARY PROCEDURE
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
Civil Cases subject to Summary Procedure (1) All cases of forcible entry and unlawful detainer (FEUD), irrespective of the 17
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injunction, attachment, replevin and support pendente lite (d) Where the action may be barred by statute of limitation (10) Labor disputes or controversies arising from employer-employee relationship (11) Where the dispute arises from the CARL (12) Actions to annul judgment upon a compromise which can be directly filed in court.
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 (8) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents (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
NOTE: It is a condition precedent under Rule 16; can be dismissed but without prejudice
F. TOTALITY RULE Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the claims of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. 33[1], BP 129).
III. Commencement of Actions to Trial A. ACTIONS An ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong [Santos v. Vda. De Caparas, (1959)] An action is the legal and formal demand of one’s right from another person made and insisted upon in a court of justice. The determinative operative act, which converts a claim into an action is its filing with a court of justice. [Riano]
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This is distinguished from the cause of action, which is the fact or combination of facts which affords a party a right to judicial interference in his behalf [Into v. Valle (2005)] and which is the basis of ordinary civil actions. [Rule 2, Sec.1]
REMEDIAL LAW
Special Proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1.3(c)] Action
Special Proceeding As to Parties Involves at least 1 Involves at least 2 party or 2 or more parties parties in proper cases As to cause of action Involves a right and a violation of such right May involve a right, by the defendant, but there need not which causes some be a violation of this damage or prejudice right upon the plaintiff As to formalities Requires the Requires no such application of legal formalities, as it remedies in may be granted accordance with the upon application prescribed rules As to governing rules Ordinary rules of Special rules of procedure procedure
A.1 KINDS OF ACTIONS Civil action -- one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong [Rule .1.3(a), par.1] Ordinary civil action – civil action that is governed by the rules for ordinary civil actions Special civil action – civil that is subject to the specific rules prescribed for a special civil action but also governed by the rules for ordinary civil actions [Rule 1.3(a), par. 2] Criminal action – one by which the State prosecutes a person for an act or omission punishable by law [Rule 1, Sec. 3(b)] Kinds of Ordinary Civil Actions (1) As to place (a) Transitory – action founded on privity of contract between parties; brought in the place where the party resides (b) Local - action founded on privity of estate only and there is no privity of contract; brought in a particular place (2) As to object (a) Action in rem (b) Action quasi in rem (c) Action in personam (3) As to foundation (a) Real (b) Personal
As to appeal from an Interlocutory Order Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits
Can be immediately and directly appealed to the appellate court
A.3 PERSONAL ACTIONS AND REAL ACTIONS The distinction is importation for purposes of determining venue [Riano] Real Action – an action affecting title to or possession of real property, or interest therein. [Rule 4, Sec.1]
A.2 CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS
A real action is ‘local,’ i.e. its venue depends upon the location of the property involved in the litigation
Civil Action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Rule 1.3(a), par.1] 19
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Not every action involving real property is a real action because the realty may only be incidental to the subject matter of the suit. [Riano]
REMEDIAL LAW
Action in rem – one which seeks to determine the state or condition of a thing. Its Action quasi in rem – one whick seeks to directly subject the property or interest of named defendants to the obligation or lien of the plaintiff.
Personal Action – All other actions [Rule 4.2] A personal action is ‘transitory,’ i.e. its venue depends upon the residence of the plaintiff or the defendant.
Action in personam – one which seeks to enforce personal rights and obligations brought against the person. Its purpose is to impose, through the judgment of the court, some liability directly upon the person of the defendant.
A.4 LOCAL AND TRANSITORY ACTIONS Local action One that could be instituted in one specific place [Manila Railroad v. AttorneyGeneral (1911)]
Transitory action One that could be prosecuted in any one of several places [Manila Railroad v. Attorney-General (1911)] Its venue depends Venue depends upon upon the residence of the location of the the plaintiff or the property involved in defendant at the the litigation (Riano) option of the plaintiff (Riano)
A.6 INDEPENDENT CIVIL ACTIONS [Rule 111, Sec 3] An independent civil action may be brought in the cases provided by: (1) Article 32 of the Civil Code (Violation of Constitutional rights by a public officer or employee, or a private individual) (2) Article 33 (defamation, fraud, or physical injuries) (3) Article 34 (refusal or failure to render aid or protection by a member of the police force); and (4) Article 2176 (quasi-delict)
E.g. Action to recover E.g. Action to recover real property sum of money If action is founded on privity of contract between parties, then the action is transitory
“Physical injuries” under Article 33 is used in the generic sense, and not in reference to the offense (?) defined in the Revised Penal Code. It also includes consummated, frustrated, and attempted homicide and death arising from delict. [Lanuza v. Ping (1980)]
But if there is no privity of contract and the action is founded on privity of estate only, such as a covenant that runs with the land in the hands of remote grantees, then the action is local and must be brought in the place where the land lies
A.5 ACTIONS IN REM, IN PERSONAM, OR QUASI IN REM The distinction is important to determine whether or not jurisdiction over the person of the defendant is required, and the type of summons to be employed. [Riano]
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Table: Actions in rem, in personam, and quasi in rem Action in rem
Action in personam Action quasi in rem Directed against particular Directed against particular Directed against the thing itself persons persons Jurisdiction over the person of Jurisdiction over the person of Jurisdiction over the person of defendant is not required as the defendant not required defendant required long as jurisdiction over the res is required Proceeding to subject the Action to impose a Proceeding to determine the interest of a named defendant responsibility or liability upon a state or condition of a thing over a particular property to an person directly obligation or lien burdening it Judgment is binging only upon Judgment is binding on the Judgment binging upon impleaded parties or their whole world particular persons successors in interest E.g. Action for partition; E.g. Probate proceeding, E.g. Specific performance, foreclosure of real estate cadastral proceeding action for breach of contract mortgage
B. CAUSE OF ACTION
B.1 RIGHT OF ACTION VERSUS CAUSE OF ACTION
Cause of action – the act or omission by which a party violates a right of another. [Rule 2.2]
Right of action The remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Right to sue as a consequence of the delict
Every ordinary civil action must be based on a cause of action [Rule 2.1] A cause of action stems from the sources of obligations under Art. 1156 of the Civil Code: (1) Law, (2) Contract, (3) Quasi-contract, (4) Acts and omissions punishable by law and (5) Quasi-delict. [Sagrada Orden etc v. NACOCO (1952)]
Cause of action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff The delict or wrong
Determined by the Whether such acts averments in the give him right of pleading regarding action determined by the acts committed by substantive law the defendant
Elements of a Cause of Action: (1) Plaintiff’s legal right; (2) Defendant’s correlative obligation to respect plaintiff’s right; (3) Defendant’s act/omission in violation of plaintiff’s right [Ma-ao Sugar Central v. Barrios (1947)]
There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA (1985)]
B.2 FAILURE TO STATE A CAUSE OF ACTION
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B.3 SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS
Even if in reality, he plaintiff has a cause of action against the the defendant, the complaint may be dismissed if the complaint of pleading asserting the claim “states no cause of action.” [Rule .16.1(g)]
Splitting a Cause of Action – The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4]
The cause of action must unmistakably be stated or alleged in the complaint. All the elements required by substantive law must clearly appear from a mere reading of the complaint. [Riano]
The pleader divides a single cause of action, claim, or demand into two or more parts and brings suit for one of such parts with the intent to reserve the rest for another separate action. [Quadra v. CA]
The complaint must contain a concise statement of the ultimate or essential facts constituting the plaintiff’s cause of action. The focus is on sufficiency, not veracity, of the material allegations. [Anchor Savings Bank v. Furigay]
The test of singleness of cause of action lies in the singleness of the delict or wrong violating the rights of one person. The tests to ascertain whether two suits relate to a single or common cause of action are: (1) Whether the same evidence would support and sustain both causes of action (2) Whether the defenses in one case may be used to substantiate the complaint in the other (3) 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.]
Test of Sufficiency The existence of the round to dismiss can be determined only from the facts alleged in the complaint and from no other, and the court cannot consider other matters aliunde. The test is whether, assuming the facts alleged to be true, the court could render a valid verdict in accordance with the prayer of the complaint. [Manaloto v. Veloso III]
For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)]
However, the Court has considered other matters aside from the facts alleged in the complaint, such as: documents attached to the complaint [Agrarian Reform Beneficiaries Association v. Nicolas] appended annexes, other pleadings, and admissions on record [Zepeda v. China Banking Corp.]
Effects: The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. [Rule 2.4] The remedy is for the defendant to file a Motion to Dismiss under Rule 16.
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(1) Filing of the first complaint may be pleaded in abatement of the second complaint, on the ground of litis pendentia [Rule 16.1.(e)]; or
There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action (Regalado).
(2) A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata [Rule 16.1(f)]
Requisites [Rule 2.5] (1) The party joining the causes of action shall comply with the rules on joinder of parties; (2) The joinder shall not include special civil actions or actions governed by special rules; (3) 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; (4) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction (“totality rule”)
Rationale A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] The rationale is: (1) To prevent repeated litigation between the same parties in regard to the same subject or controversy; (2) To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause); (3) To avoid the costs and expenses incident to numerous suits. [City of Bacolod v. SM Brewery (1969)]
B.4 JOINER AND CAUSES OF ACTION
MISJOINDER
Misjoinder of Causes of Action Misjoinder is not a ground for dismissal of an action [Rule 2.6]
OF
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.
Joinder of Causes of Action – the assertion of as many causes of action as a party may have against another in one pleading alone. [Rule .2.5]
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.
It is also the process of uniting two or more demands or rights of action in one action. [Riano] Ratio To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost [Ada v. Baylon (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 (2012)]C. Parties
The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovi v. Sarte (1917)] 23
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Plaintiff – one having an interest in the matter of the action or in obtaining the relief demanded.
REMEDIAL LAW
partnership to third persons [Arts. 1768, 1772, Civil Code] (3) The estate of a deceased person is a juridical entity that has a personality of its own [Nazareno v. CA] (4) The Roman Catholic Church may be a party; as to its properties, the Archbishop or diocese to which they belong may be a party. [Ponce v. Roman Catholic] (5) A legitimate labor union may sue and be sued in its registered name [Art. 242(e), Labor Code]
The term may either refer to the claiming party, counter-claimant, cross-claimant, or thirdparty plaintiff. [R3.1] Defendant – one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. Term may refer to the original defending party, the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party defendant. [R3.1] It also includes an unwilling co-plaintiff, or one who should be joined as plaintiff but refuses to give his consent thereto. [R3.10]
Legal Capacity to Sue Legal capacity to sue or be sued means that the party is free from general disability (e.g. minority or insanity) or, in case of juridical entities, that it must be duly registered in accordance with law
Who may be Parties (1) natural persons; (2) juridical persons; (3) entities authorized by law. [R3.1]
Facts showing the capacity of a party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, must be averred. [Rule 8, Sec.4]
Juridical persons [Art. 44, Civil Code] (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or public purpose, created by law; and (3) 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.
Legal capacity to sue Plaintiff’s general disability to sue, on account of minority, insanity, incompetence, etc. Ground for a Motion to Dismiss is “lack of capacity to sue [Rule 16, Sec. 1(d)]
Examples of Entities Authorized by Law [Riano] (1) A corporation by estoppel is precluded from denying its existence, and the members are liable as general partners [Sec. 21, Corporation Code] (2) A partnership with capital of at least P3,000 which fails to comply with the registration requirements is liable as a
Legal personality to sue Plaintiff is not the real party in interest Ground is “failure of complaint to state a cause of action.” [Rule 16, Sec. 1(g)]
C.1 REAL PARTY-IN-INTEREST Real Party-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. [Rule 3, Sec.2]
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“Interest” means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. [Ang v. Sps. Ang (2012)] The interest must be ‘real,’ which a present and substantial interest as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. [Rayo v. Metrobank] It should be material and direct, as distinguished from a mere incidental interest. [Mayor Rhustam Dagadag v. Tongnawa]
Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)]
Unless authorized by law or the Rules, every action must be prosecuted or defended in the name of the real party in interest. [Rule 3, Sec. 2]
Remedies: (1) Amendment of pleadings (Alonso v. Villamor, 1910); or (2) Complaint may be deemed amended to include the real party-in-interest (Balquidra v. CFI Capiz, 1977)
Failure to Name a Real Party-in-Interest If the suit is not brought in the name of or against the real party-in-inteerest, a Motion to Dismiss may be filed on the ground that the complaint “states no cause of action.” [Balagtas v. CA]
Husband and wife shall sue and be sued jointly, except as provided by law. [Rule 3, Sec. 4]
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., (1958)]
Representatives as Parties A representative is one acting in fiduciary capacity, such as a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or the Rules of Court. [Rule 3, Sec. 3]
C.2. INDISPENSABLE AND NECESSARY PARTIES Indispensable Party – a real party-in-interest without whom no final determination can be had of an action. [Rule 3, Sec. 7]
Where the action is allowed to be prosecuted or defended by a representative party, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.
Necessary Party –not an indispensable party but ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action [Rule 3, Sec. 8]
An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal, except if the contract involves things belonging to the principal.
Although joinder of parties is generally permissive [Rule 3, Sec. 6] the joinder of a party becomes compulsory when the one involved is an indispensable party. [Rule 3, Sec. 7]
A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Rule 3, Sec. 5]
A person is not an indispensable party if his interest in the controversy or subject matter is 25
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C.5 COMPULSORY AND PERMISSIVE JOINDER OF PARTIES
separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complete justice between them. [Riano] Indispensable parties
Necessary parties
Must be joined under any and all conditions
Should be joined whenever possible
Presence is a condition sine qua non for exercise of judicial power
Action can proceed even in their absence; interest is separable from that of the indispensable party
No valid judgment if not joined.
The case may be determined but the judgment will not resolve the entire controversy
Interest in the controversy such that a final decree would necessarily affect their rights..
REMEDIAL LAW
Compulsory Joinder [Rule 3, Sec. 7] Parties in interest without whom no final determination can be had of an action (i.e. indispensable parties) shall be joined either as plaintiffs or defendants The absence of an indispensable parties renders all subsequent actions of the trial court null and void for want of authority to act, not only as to the absent parties but even as to those present. [Go v. Distinction Properties Development, Inc. (2012)] Non-Joinder of Necessary Parties [Rule 3, Sec. 9] 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 the necessary party is omitted. [Rule 3, Sec. 9, par. 1]
Interests are so far separable that a final decree can be made in their absence without affecting them.
C.3 INDIGENT PARTIES Indigent Party –one who has no money or property sufficient and available for food, shelter, and basic necessities [Rule 3, Sec. 21]
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 [Rule 3, Sec. 9 par 3]
Authority to litigate as such shall include exemption from payment of docket fees, other lawful fees, and fees for TSN but these amounts shall be a lien on any judgment favorable to such indigent party, unless the court provides otherwise.
Permissive Joinder [Rule 3, Sec. 6] - Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits.
This authority may be granted upon an ex parte application and hearing but the adverse party may contest such grant at any time before judgment is rendered by the trial court.
Requisites: (1) Right to relief arises out of the same transaction or series of transactions Transaction – not only a stipulation or agreement but any event resulting in wrong, whether the wrong was done by violence, neglect, or breach of contract Series of transactions – transactions connected with the same subject of the action
C.4 ALTERNATIVE DEFENDANTS Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. [Rule 3, Sec. 13] 26
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(2) A question of law or fact common to all the plaintiffs or defendants (3) Such joinder is not otherwise proscribed by the rules on jurisdiction and venue
Objections should be made at the earliest opportunity. At the moment such defect becomes apparent, a motion to strike the names of the parties must be made.
NOTE: Compare to Joinder of Causes of Action where it is enough if the causes of action arises out of the same contract, as there is no need for a common question of fact or law.
Objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita (2005)]
C.7 CLASS SUIT C.6 MISJOINDER AND NON-JOINDER OF PARTIES
Requisites [Rule 3, Sec. 12] (1) Subject matter of the controversy is one of common or general interest to many persons; (2) The persons are so numerous that it is impracticable to join them all as parties, and to bring them all before the court; (3) Parties actually before the court are sufficiently numerous and representative of the class as to fully protect the interests of all concerned; (4) The representative sues or defends for the benefit of all.
Misjoinder –when one is made a party to the action although he should not be impleaded. Non-joinder – when one is not joined when he is supposed to be joined but is not impleaded in the action. [Riano] Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. parties may be [Rule 3, Sec. 11]
Non-joinder of an indispensable party is not a ground for outright dismissal of the action. If he plaintiff refused to implead an indispensable party despite order of the court, that court may dismiss the complaint for the plaintiff’s failure to comply with the order. [Pamplona Platation v. Tinghil].
In a class suit, any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12] If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action. [Rule 16, Sec 1 (d)]
If the court finds the reason for the nonjoinder 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 is deemed a waiver of the claim against such party. [Rule 3, Sec. 9, pars. 1-2]
However, no class suit may be dismissed upon the instance of the plaintiff or compromised, without the approval of the court. [Rule 17, Sec. 2] 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. [Regalado]
Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Rule 3, Sec.11] Objections to defects in parties
A derivative suit is action brought by minority shareholders in the name of the corporation to 27
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redress wrongs committed against it, for which the directors refuse to sue. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority.
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. [Rule 14, Sec. 8]
In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim v. Lim Yu (2001))
C.9 EFFECT OF DEATH OF A PARTYLITIGANT Duty of Counsel upon Death of Client [Rule 3, Sec. 16] (1) Inform court of such fact within 30 days after the death; (2) Give the name and address of the legal representatives.
There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual planters for an allegedly libelous article in an international magazine. There is no common or general interest in 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 (1986)]
Failure to comply is a ground for disciplinary action. Action of Court upon Notice of Death Upon receipt of notice, shall determine if claim is extinguished by such death. (1) Claim does not survive: the proper action would be to dismiss the case. Substitution would not be 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 (1974)]
(2) Claim survives: the court shall order the legal representative of the deceased to appear and be substituted for him within 30 days, or within such time as may be granted.
C.8 SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Requisites [Rule 3, Sec. 15] (1) There are 2 or more persons not organized as a juridical entity; (2) They enter into a transaction; (3) A wrong is committed against a 3rd person in the course of such transaction.
Survival of Action Survival depends on the nature of the action and the damage sought (1) Causes of Action that Survive: (a) The wrong complained of affects primarily and principally property and property rights (b) Injuries to the person are merely incidental (c) E.g. Purely personal actions like support (2) Causes of Action that do not Survive: (a) The injury complained of is to the person
Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name. [Rule 3, Sec. 15]
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(b) Property and property rights affected are incidental (c) E.g. actions to recover real and personal property or to enforce liens thereon
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(1) The action must primarily be for recovery of money, debt or interest thereon; (2) The claim arose from express or implied contract; (3) Defendant dies before the entry of final judgment in the court in which the action was pending. (4) The defendant’s death will not result in the dismissal of the action.
Court may order the opposing party to procure the appointment of an administrator or executor of the estate in the ff. cases: (1) No legal representative is named; or (2) The one so named fails to appear within the specified period. [Rule 3, Sec. 16]
Effect There shall be substitution in the manner provided under Rule 3, Sec. 16, and the action will continue until the entry of final judgment. However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent’s estate without need of proving the claim.
The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. [Ferreria v Vda de Gonzales (1986)] i. Death or Separation of a Party who is a Public Officer Requisites [Rule 3, Sec. 17] (1) That the public officer is a party to an action in his official capacity; (2) That during the pendency of the action, he either dies/resigns or otherwise ceases to hold office; (3) That any party shows to the satisfaction of the court, within 30 days after the successor takes office, that there is a substantial need to continue or maintain the action; (4) That the successor adopts or continues his predecessor’s action, or threatens to do so; and (5) The party or officer affected: (a) Assented to the substitution, or (b) Was given reasonable notice of the application, and opportunity to be heard
iii. Incompetency or Incapacity of a Party During the Pendency of the Action The Court, upon motion with notice, may allow the action to be continued by or against the incapacitated person, assisted by his legal guardian or guardian ad litem. [Rule 3, Sec. 18] iV. Transfer of Interest During Pendency of Action General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him. Exception: When the substitution by or joinder of the transferee is ordered by court. [Rule 3, Sec. 19] The case is dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.
ii. Action on Contractual Money Claims Requisites [Rule 3, Sec. 20] 29
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D.VENUE
Exception in cases of Summary Procedure [Rule 4, Rule on Summary Procedure]
Venue is the place, or the geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General (1911)]
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. [Rule 4, Sec. 1(1)] 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. [Rule 4, Sec. 1(2)]
A motu propio dismissal based on improper venue is patently incorrect. [Dolot v. Paje] Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot truly be said to have been improperly laid because the venue, although technically wrong, may be acceptable to the parties for whose convenience the rules of venue had been laid. [Dacuycoy v. IAC]
If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff’s option). If the case involves 2 properties located in 2 different places: (1) objects of the same transaction – file it in any of the 2 places; (2) objects of distinct transactions – separate actions should be filed in each place unless properly joined.
However, the court may effect a motu propio dismissal for improper venue in actions covered by the Rules on Summary Procedure, in Small Claims cases, and in ejectment cases.
D.3 VENUE OF PERSONAL ACTIONS
D.1 VENUE VERSUS JURISDICTION Jurisdiction
Place where the action is instituted
Power of the court to hear and decide a case Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived Substantive Is fixed by law and cannot be the subject of the agreement of the parties
May be waived
Procedural May be changed by the written agreement of the parties Establishes a relation between plaintiff and defendant, or petitioner and respondent Not a ground for a motu propio dismissal
proprio dismissal.
D.2 VENUE OF REAL ACTIONS
Choosing the venue of an action is not left to a plaintiff’s caprice; the matter is regulated by the Rules of Court. [Ang v. Sps. Ang (2012)]
Venue
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At the plaintiff’s election [Rule 4, Sec. 2] (1) Where the plaintiff or any of the principal plaintiffs resides; (2) Where the defendant or any of the principal defendants resides; (3) In case of a non-resident defendant, where he may be found. 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 (2012)]
Establishes a relation between the court and the subject matter
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
Lack of jurisdiction over the subject matter is a ground for a motu
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provided he resides therein with continuity and consistency. [Boleyley v. Villanueva]
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prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado]
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. [Clavecilla Radio v. Antillon]
In the absence of qualifying restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)]
D.4 VENUE OF ACTIONS AGAINST NON-RESIDENTS
The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado, citing Hoechst Philippines v Torres (1978)].
Non-resident found in the Philippines (1) For personal actions (a) Where the plaintiff, or any of the principal plaintiffs, resides; or (b) Where the non-resident defendant may be found (2) For real actions -- where the property is located
E. PLEADINGS Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1]
Non-resident not found in the Philippines (1) Involves personal status of plaintiff – where plaintiff resides (2) Involves property of defendant in the Philippines – where the property, or any portion thereof, is situated or found
Pleadings versus Motions Pleading Purpose is to submit a claim or defense for appropriate judgment
When there is more than one defendant or plaintiff, the residences of the principal parties should be the basis for determining proper venue (Herrera)
May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules
D.5 WHEN THE RULES ON VENUE DO NOT APPLY (1) If a specific rule or law provides otherwise (e.g. action for damages arising from libel); (2) If there is a stipulation as to venue which is permitted if the agreement: (a) is in writing; (b) was made before the filing of the action; and (c) is exclusive the exclusive venue.
Must be written
Motion
Purpose is to apply for an order not included in the judgment Cannot be initiatory; Always made in a case already filed in court May be filed even after judgment Any application for relief not by a pleading is a motion May be oral when made in open court or in the course of a hearing or trial
E.1 KINDS OF PLEADINGS Kinds of Pleadings Allowed [Rule 6, Sec. 2] (1) Complaint (2) Answer (3) Counterclaim (4) Cross-claim (5) 3rd-party Complaint (6) Complaint-in-intervention (7) Reply
D.6 EFFECTS OF STIPULATION ON VENUE To be binding, the parties must have agreed on the exclusive nature of the venue of any 31
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i. Complaint The pleading alleging the plaintiff’s cause/s of action. [Rule 6, Sec. 3]
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Kinds of Defenses [Rule 6, Sec. 5] (1) Negative Defenses - Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. (2) Affirmative Defenses - Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent or bar recovery, by way of confession and avoidance.
The complaint should contain a statement of ultimate facts on which the plaintiff relies for his claim, which is: (1) in a methodical and logical form; (2) plain, concise, and direct; and (3) omits statement of mere evidentiary facts [Rule 8, Sec. 1] Function (1) Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. (2) It should inform the defendant of all material facts on which the plaintiff relies to support his demand. (3) It should state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. [Tantuico v. Republic (1991)]
A denial is not specific just because it is so qualified. [Agton v. CA] A general denial will be deemed an admission of the averments in the complaint; it has to be specific. Modes of Specific Denial [Rule 8,Sec. 10] (1) Defendant must specify each material allegation of fact the truth of which he does not admit (2) If pleader decides to deny only a part or a qualification of an averment, he shall specify so much of it as true and deny the remainder (3) If pleader is without knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state
Ultimate Facts - Essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola (1966)]
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 (1993)]
Not Ultimate Facts: (1) Evidentiary or immaterial facts; (2) Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated; (3) Conclusions of law alleged in the complaint are not binding on the court. (4) The details of probative matter or particulars of evidence, statements of law, inferences and arguments.
While it is a denial in form, its substance actually has the effect of an admission because of a too literal denial of the allegation sought to be denied. This arises when the pleader merely repeats the allegations in a negative form.
ii. Answer The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a crossclaim. [Rule 6, Sec. 4]
iii. Counterclaim Any claim which a defending party may have against an opposing party.
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How Raised (1) By including it in the Answer A compulsory counterclaim or a crossclaim that a defending party has at the time he files his answer shall be contained therein. [Rule 11, Sec. 8] (2) By filing after the Answer (a) A counterclaim may be set up, by leave of court, by amendment before judgment, when: (i) it is not set up due to oversight, inadvertence, or excusable neglect, or (ii) when justice requires [Rule 11, Sec. 10]
jurisdiction. Barred if not set up in the action. Need not be answered; no default. Not an initiatory pleading; does not require CNFS
Initiatory pleading
Compulsory Counterclaim Requisites (1) It arises out of, or is necessarily connected with the transaction or occurrence, which is 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; (3) It must be cognizable by the regular courts of justice, and within the court’s jurisdiction both as to the amount and the nature. [Rule 6, Sec. 7]
In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7] If a counterclaim is filed in the MTC is in excess of its jurisdictional amount, the excess is considered waived. [Agustin v. Bacalan (1985)] However, in another case, the remedy where a counterclaim is beyond the jurisdictional amount of the MTC is to set off the claims and file a separate action to collect the balance. [Calo v. Ajax (1968)]
Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party's claim. Does not require for its adjudication the presence of third parties of whom the court cannot acquire
Not barred even if not set up in the action. Must be answered, otherwise, the defendant can be declared in default.
NOTE: compulsory counterclaims are not initiatory pleadings but docket fees are now required under A.M. No. 04-2-04-SC, which required docket fees for compulsory counterclaims, third (fourth, etc.)-party complaints and complaints-in-intervention.
(b) A counterclaim, which either matured or was acquired by a party after serving his pleading, with permission of the court, be set up in a supplemental pleading before judgment. [Rule 11, Sec. 9]
Kinds of Counterclaims Compulsory counterclaim
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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 (1970)] The filing of a motion to dismiss and the setting up of a compulsory counterclaim are 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]
Permissive counterclaim Neither arises out of nor is necessarily connected with such subject matter May require the presence of third parties over whom the court cannot acquire jurisdiction.
Permissive Counterclaim A counterclaim is permissive if it does not arise out of, nor is necessarily connected with, 33
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the subject matter of the opposing party’s claim This is not barred even if not set up in the action
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case, after the defendant had filed a responsive pleading (3) Dismissal under Rule 17, Sec. 3 – where the complaint is dismissed due to the fault of the plaintiff
Must have independent jurisdictional ground (Herrera). Hence, the filing of a separate docket fee.
In all these cases, the rules expressly provide that the dismissal shall be without prejudice to the right of the defendant to pursue his counterclaim in the same or in a separate action.
Determining whether Compulsory or Permissive (also known as “logical relationship test”) A positive answer on all four the following tests would indicate that the counterclaim is compulsory: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute plaintiff’s claim as well as the counterclaim? (4) Is there any logical relation between the claim and counterclaim? [GSIS v. Heirs of Caballero]
iv. Cross-claim Requisites (1) A claim by one party against a co-party; (2) It must arise out of the subject matter of the complaint or of the counterclaim; (3) The cross-claimant is prejudiced by the claim against him by the opposing party. A cross-claim is generally compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] Exceptions (“permissive crossclaims”) are when: (1) The claim is outside the court’s jurisdiction; (2) The court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the adjudication of said cross-claim. (3) The Cross-claim that matured or was acquired after service of Answer
There is a logical relationship where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA (1992)]
The dismissal of the complaint carries with it the dismissal of a cross-claim, which is purely defensive; but not a cross-claim seeking an affirmative relief. [Torres v. CA (1973)]
NOTE: If the counterclaim matures after the Answer, it is merely permissive.
Improper Cross-Claims (1) Where the cross-claim is improper, the remedy is certiorari (Malinao v. Luzon Surety, 1964) (2) The dismissal of a cross-claim is unappealable when the order dismissing the complaint becomes final and executory (Ruiz, Jr. v. CA, 1993) (3) A cross-claim is not allowed after declaration of default of cross-claimant (Tan v. Dimayuga, 1962) It would be tantamount to setting aside the order of
Effect on Counterclaim when Complaint is dismissed The case may be dismissed, with a counterclaim set up under any of the following circumstances: (1) Dismissal under Rule 16, Sec. 6 – where the defendant does not file motion to dismiss but raises the ground as an affirmative defense (2) Dismissal under Rule 17, Sec. 2 – where the plaintiff files a motion to dismiss the 34
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default because then the cross-claimant would re-obtain a standing in court as party litigant
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3rd-party complaint
Counterclaim
Counter-Counterclaim - A claim asserted against an original counter-claimant.
Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the recovery sought by the opposing party
Counter-Cross-claim - A claim filed against an original cross-claimant.
Cannot exceed the amount stated in the original complaint
Must be within the jurisdiction of the court trying the main case Need not diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint
v. Third(Fourth, etc.)-Party Complaints It is a claim that a defending party may, with leave of court, file against a person not a party to the action, for contribution, indemnity, subrogation, or any other relief, in respect of his opponent's claim. [Rule 6, Sec. 11]
Under this Rule, a person not party to an action may be impleaded by the defendant either: (1) On allegation of liability to the latter, covered by the phrase “contribution, indemnity, or subrogation” (2) On the ground of direct liability to the plaintiff; or both, as covered by the phrase “any other relief”. [Samala v. Victor (1989)] Tests to Determine Whether the 3rd-Party Complaint is in Respect of Plaintiff’s Claim (Capayas v. CFI, 1946) (1) WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim; (2) WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant; (3) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim.
There could also be a 4th/etc.-party complaint with the same purpose and function. Counterclaim
3rd Party complaint
Against an opposing party
Against a person not a party to the action
Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein
May arise out of or be necessarily connected with the transaction or the subject matter of the opposing party’s claim (compulsory counterclaim), or it may not (permissive counterclaim)
Must be in respect of the opponent’s (plaintiff’s) claim
No need for a leave of court
No need for leave of court
Leave of court is needed
Cross-claim Against co-party
a
3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to the action
Additional Rules Leave of court to file a 3rd-party complaint may be obtained by motion filed under Rule 15.
Complaint in intervention
Summons on third (fourth, etc.)-party defendants must be served for the court to obtain jurisdiction over his person, since he is not an original party.
Same Initiative is with a nonparty who seeks to join the action
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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 (1968)]
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The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA (1999)]
A third-party complaint is not proper in an action for declaratory relief.
It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)]
vi. Complaint-in-Intervention Pleadings-in-Intervention (Rule 19, Sec. 3) (1) Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties. (2) Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter.
Legal Interest Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. 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 (2011)]
Intervention – 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.
Requisites for Valid Intervention (1) There must be a motion for intervention filed before rendition of judgment by the trial court. (2) Movant must show in his motion: (a) That he has a legal interest: (i) in the matter of litigation, (ii) in the success of either party in the action, or (iii) against both parties. (b) That the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof (c) That the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties; and (d) That the intervenor’s rights may not be fully protected in a separate proceeding.
Intervention is never an independent action, but is ancillary and supplemental to an existing litigation, and in subordination to the main proceeding. [Saw v. CA] Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19] When Allowed Intervention shall be allowed when a person has: (1) A legal interest in the matter in litigation; or (2) A legal interest in the success of any of the parties; (3) An interest against the parties; or (4) When he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or of an officer thereof. [Fernandez v. CA (2013)] 36
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How to Intervene (1) With leave of court, the court shall consider the 2 factors (2) Motion to intervene may be filed at any time before rendition of judgment by trial court (3) Copy of the pleadings-in-intervention shall be attached to the motion and served on the original parties
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Exception: When a Reply is necessary (a) To set up affirmative defenses on the counterclaim [Rosario v. Martinez] (b) Where the answer alleges the defense of usury in which case a reply under oath should be made; otherwise, the allegation of usurious interest shall be deemed admitted [Rule 8, Sec. 8; Sun Bros. v. Caluntad] (c) Where the defense in the answer is based on an actionable document, a reply under oath must be made; otherwise, the genuineness and due execution of the document shall be deemed admitted. [Rule 8, Sec. 11; Toribio v. Bidin]
Time to Intervene [Rule 19, Sec. 2] General Rule: The motion to intervene must be filed at any time before the rendition of judgment by the trial court Exceptions: (1) With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos) (2) When the intervenor is the Republic (Lim v. Pacquing) (3) Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA)
E.2 PLEADINGS ALLOWED IN SPECIAL RULES Revised Rules on Summary Procedure The only pleadings allowed to be filed are: (1) Complaints (2) Compulsory counterclaims pleaded in the Answer (3) Cross-claims pleaded in the Answer; and (4) Answers thereto [Sec. 3[A], II]
Remedy for Denial of Motion for Intervention (1) The movant may file a motion for reconsideration since the denial of a motion for intervention is an interlocutory order. (2) Alleging grave abuse of discretion, movant can also file a certiorari case.
Prohibited Pleadings, Motions, or Petitions (Sec. 19) (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 required barangay conciliation proceedings; (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; (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;
vii. Reply The plaintiff’s response to the defendant's answer. The function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. [Rule 6, Sec. 10] Effect of Failure to Reply General Rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. 37
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(8) Motion to declare the defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11) Third party complaints; and (12) Interventions.
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(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; (11) Third-party complaints; and (12) Interventions.
Forms under the Rule of Procedure for Small Claims Cases (1) Instead of filing a Complaint, a Statement of Claim using Form 1-SCC shall be filed [Sec. 5] (2) Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10] (3) Defendant may file counterclaim if he 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 suit on the counterclaim.
E.3 PARTS OF A PLEADING Caption – that part of the pleading which sets forth the: (1) the name of the court; (2) the title of the action (i.e. the names of the parties); and (3) the docket number, if assigned. [Rule 7, Sec. 1] Body – that part of the pleading which sets forth its designation, the allegations of party's claims or defenses, the relief prayed for, and its date. (1) Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances (2) Headings should be used if there is more than one cause of action in the Complaint, and if paragraphs in the Answer address one or more causes of action from the Complaint. (3) Should specify relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable; also called the “prayer” (4) Every pleading shall be dated. [Rule 7, Sec. 2]
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. NOTE: Courts decision shall be contained in Form 13-SCC Prohibited Pleadings and Motions in Small Claims (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;
I. SIGNATURE AND ADDRESS Every pleading must be signed by the party or counsel representing him. The address must be stated and such address must not be a post office box. [Rule 7, Sec. 3]
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An unsigned pleading produces no legal effect. However, the court may allow such deficiency to be remedied if it appears that: (1) It was due to mere inadvertence; and (2) It was not intended for delay [Rule 7, Sec. 3]
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(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)
Effect of Signature of Counsel This constitutes a certificate by him that: (1) He has read the pleading (2) That to the best of his knowledge, information, and belief there is good ground to support it; and (3) That it is not interposed for delay [Rule 7, Sec. 3]
II. VERIFICATION A pleading need not be under oath, verified or accompanied by affidavit, unless otherwise provided by law or rules. Verification is required in the following instances: (1) Pleadings filed in the inferior courts in cases covered by the Rules on Summary Procedure are all required to be verified (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) (5) Appeal by certiorari from the CTA to the SC (Sec. 12, RA 9282 amending Sec. 19, RA 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)
How verified [Rule 7, Sec. 4] By an affidavit declaring that (1) That the affiant has read the pleading; and (2) That the allegations therein are true and correct of his personal knowledge or based on authentic documents.
III. FORUM SHOPPING The repeated availment of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues, either pending in or already resolved adversely by some other court. [Asia United Bank v. Goodland Company, Inc. ]
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Test to determine existence of Forum Shopping Whether in the 2 or more cases pending, there is identity of: (1) Parties (2) Rights or causes of action (3) Relief sought [Huibonhoa v. Concepcion (2005)]
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If, for justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf. [Vda. de Formoso v. PNB (2011)] Verification/CNFS for Corporation The certification must be executed by an officer, or member of the board of directors, or by one who is duly authorized by a board resolution; otherwise, the complaint will have to be dismissed. [Cosco Philippines Shipping, Inc. v. Kemper Insurance, Co. (2012)]
Certificate of Non-Forum Shopping (CNFS) A sworn statement in which the plaintiff or principal party certifies in a complaint or initiatory pleading: (1) That he has not commenced any action or filed any claim involving the same issues in any court or tribunal, and to the best of his knowledge, no such other action is pending;
However, the Court has ruled that a President of a corporation can sign the verification and CNFS, without the benefit of a board resolution. It also allowed the following to sign: (1) the Chairperson of the Board; (2) the General Manager or acting GM; (3) a personnel officer; and (4) an employment specialist in a labor case.
(2) That if there is such other pending action or claim, a complete statement of the present status thereof; and (3) That if he should learn that the same or a similar action has been filed or is pending, he shall report such fact within 5 days to the court receiving his initiatory pleading. [Rule 7, Sec. 5]
However, the bettwe procedure would be to append a board resolution to obviate questions regarding the authority of the signatory. [South Cotabato Communications Corp. v. Sto. Tomas ]
CNFS is not required in a compulsory counterclaim, as this is not an initiatory pleading. [UST Hospital v. Surla (1998)] However, a certification is needed in permissive counterclaims [Korea Exchange Bank v. Gonzales ]
Belated submission of written authority has been found to be substantial compliance with the rule, especially when the acts were also ratified by the Board. [Swedish Match Philippines v. Treasurer of the City of Manila (2013)]
Who Executes the CNFS It is the plaintiff or principal party who executes the certification under oath. [Rule 7, Sec. 5]
E.4 ALLEGATIONS IN A PLEADING i. In General Every pleading shall contain a statement of the ultimate facts on which the party pleading relies for his claim or defense (1) In a methodical and logical form (2) A plain, concise and direct statement (3) Statement of mere evidentiary facts omitted [Rule 8, Sec. 1]
The rationale is that the plaintiff, not the counsel, is in the best position to know whether he or it has actually filed or caused the filing of a petition. Certification signed by counsel is defective, and a valid cause for dismissal. [Anderson v. Ho (2013)]
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If a defense relief is based on law, state in a clear and concise manner: (1) Pertinent provisions of the law (2) Applicability of the law to him
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Failure to comply with a condition precedent is a ground for a motion to dismiss (Rule 16, Sec. 1(j))
Facts that must be averred particularly – Circumstances showing fraud or mistake when averred [Rule 8, Sec. 5]
Examples of Conditions Precedent: (1) Exhaustion of administrative remedies (2) Investigation by a fiscal is a prerequisite to annulment of marriage when defendant defaults (Tolentino v. Villanueva) (3) No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts at compromise have been made but that the same have failed. (Art. 222; Versoza v. Versoza) (4) Arbitration; Barangay Conciliation
Facts that may be averred generally (1) Conditions precedent – but there must still be an allegation that the specific condition precedent has been complied with; [Rule 8, Sec. 3] (2) Capacity to sue or be sued; (3) Capacity to sue or be sued in a representative capacity; [Rule 8, Sec. 4] (4) Legal existence of an organization – A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4] (5) Malice/intent/knowledge or other condition of the mind; [Rule 8, Sec. 5] (6) Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec. 6] (7) Official documents/acts. [Rule 8, Sec. 9]
Capacity The following must be averred: (1) Facts showing the capacity of a party to sue or be sued; or (2) The authority to sue or be sued in a representative capacity; (3) Or the legal existence of an organized association of persons that is made a party [Rule 8, Sec. 4] Fraud or Mistake – Circumstances constituting these must be stated with particularity [Rule 8, Sec.5]
Condition Precedent – If the cause of action depends upon a condition precedent, its fulfillment or legal excuse for non-fulfillment must be averred.
Malice, Intent, Knowledge and other Conditions of the Mind – May be averred generally [Rule 8, Sec. 5] Judgment - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. [Rule 8, Sec. 6]
A general averment of the performance or occurrence of all conditions precedent shall be sufficient [Rule 8, Sec. 3] All valid conditions precedent to the institution of a 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. Such fact must be pleaded.
Official documents or acts – sufficient to aver that the document was issued, or the act done, in compliance with law. [Rule 8, Sec. 9]
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as seal, acknowledgement, or revenue stamps, which it lacks, are waived by him
Actionable Document – the written instrument upon which the action or defense is based. Where a pleader relies upon a document, its substance must be set out in the pleading either by its terms or by its legal effects
Genuineness - That the party whose signature it bears admits that, at the time it was signed it, was in words and figures exactly as set out. [Hibberd v. Phde and Mcmillian ]
iii. Specific Denials
Pleading the document (1) The substance of such document shall be set forth in the pleading; and the original or a copy shall be attached as an exhibit; or (2) Said copy may be set forth in the pleading [Rule 8, Sec. 7]
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. The parties are compelled to lay their cards on the table. [Philippine Bank of Communications v. Go (2011)]
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.) How to Contest [Rule 8, Sec. 8] (1) By specific denial under oath; and (2) By setting forth what is claimed to be the facts
Modes of Denial (1) Specific Absolute Denial - Defendant must specify each material allegation of fact the truth of which he does not admit, and, whenever applicable, set forth the substance of matters relied upon to support the denial
Denial need not be under oath when: (1) The adverse party does not appear to be a party to the instrument, or (2) Compliance with the an order for inspection of the document has been refused.
(2) Partial Specific Denial - If pleader decides to deny only a part or a qualification of an averment: (a) He shall specify so much of it as is true and material (b) He shall deny the remainder
Effect of Failure to Deny Under Oath (1) The genuineness and due execution is deemed admitted (2) The document need not be formally offered in evidence
(3) Denial by Disavowal of Knowledge – The defendant states that he is without knowledge or information sufficient to form a belief as to the truth of a material averment; has the effect of a denial
Due Execution - That the party whose signature it bears admits that he voluntarily signed it; or that it was signed by another for him with his authority; that the document was delivered; and that any formalities required by law, such
Effect of Failure to make Specific Denials Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] except: (1) Allegations as to the amount of unliquidated damages; (2) Allegations immaterial to the cause of action 42
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(3) Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12] (4) Conclusion of law.
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Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence Dual stages of default (1) Declaration of Order of Default – when defendant fails to answer within the time specified in the rules, the court shall, upon motion of the plaintiff and proof of such failure, declare defendant in default
Specific Denial requires an oath in the following cases: (1) Denial of the genuineness and due execution of an actionable document; [Rule 8, Sec. 8] and (2) Denial of allegations of usury. [Rule 8, Sec. 11]
(2) Rendition of Judgment by Default – thereafter, on the basis of the allegation of the complaint or after receiving plaintiff’s evidence, the court shall render judgment granting him such relief as the complaint and the facts proven may warrant
E.5 EFFECT OF FAILURE TO PLEAD I. FAILURE TO PLEAD DEFENSES AND OBJECTIONS General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived.[“Omnibus Motion Rule”, Rule 9, Sec. 1]
Order of default Issued by the court on plaintiff’s motion, for failure of the defendant to seasonably file his responsive pleading Interlocutory unappealable
Exceptions: (1) Lack of jurisdiction over the subject matter; (2) Litis pendentia (3) Res judicata (4) Action barred by statute of limitations.
Judgment by default Rendered by the court following a default order or after it received ex parte plaintiff’s evidence Final – Appealable
When Declaration of Default is Proper There is only one instance when a party defendant can properly be declared in default and that is when he fails to file his answer within the reglementary period, or within such extended time as he is allowed by the court, under Sec. 1, Rule 18
II. FAILURE TO PLEAD COMPULSORY COUNTERCLAIMS AND CROSS-CLAIMS General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2] Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10]
Requisites before a Declaration of Default (1) The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance (2) The defendant failed to file his answer within the time allowed therefor (3) There must be a motion to declare the defendant in default with notice to the latter
For Cross-Claims: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]
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(4) There must be notice to the defendant by serving upon him a copy of such motion (5) There must be proof of such failure to answer (6) There must be a hearing to declare defendant in default
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Relief from an Order of Default [Lina v. CA] (1) After notice of the Order and before Judgment – file a motion under oath to set aside the Order; must show: (a) Failure to file Answer was due to fraud, accident, mistake, excusable negligence; and (b) That he has a meritorious defense (i.e. through an affidavit of merit)
Effect of Order of Default (1) The party declared in default loses his standing in court, meaning he cannot take part in the trial. However, he may still participate as a witness [Cavil v. Florendo (1987)] and is entitled to notices of subsequent proceedings.
(2) After rendition of Judgment, before it becomes final and executory – may file: (a) a motion for new trial under Rule 37; or (b) appeal from the judgment for being contrary to the evidence or law
In all, the defendant should receive the following notices: (a) Motion to declare him in default; (b) Order declaring him in default; (c) Subsequent proceedings; (d) Service of final orders and judgments.
(3) After Judgment becomes final and executory – may file a petition for relief under Rue 38
(2) The court may either: (a) Proceed to render judgment granting the claimant such relief as his pleading may warrant; or (b) Require the claimant to submit evidence, which need not be received by the court personally but may be received by the clerk of court
These remedies presuppose that there was a valid order of default but the defendant may also file a petition for certiorari when he is improperly declared in default. [Riano] Partial Default When the complaint states a common cause of action against several defendants, only some of whom answer, the court should declare defaulting defendants in default, and proceed to trial on answers of others
A declaration of default is not tantamount to an admission of the truth or validity of the plaintiff’s claims. [Monarch Insurance v. CA ]
If the defense is personal to the one who answered, it will not benefit those who did not answer.
(3) A defending party declared in default retains the right to appeal from the judgment by 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. [Ortero v. Tan (2012)]
Extent of Relief to be Awarded (1) A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (2) If the claim is not proved, the case should be dismissed As held in Datu Samad Mangelen v. CA (1992): 44
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(1) In a judgment based on evidence presented ex parte, judgment should neither exceed the amount, nor be different in kind from that prayed for. (2) On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for. Default is not allowed, in the following cases: (1) An action for annulment or declaration of nullity of marriage (2) For legal separation (3) Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed (4) Summary procedure
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DEFAULT IN ORDINARY PROCEDURE After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default
If motion denied: Defendant allowed to file an answer
If motion granted: Court issues order of default and renders judgment or require plaintiff to submit evidence ex parte
Before judgment by default is rendered, defendant may: (1) Move to set aside order of default upon showing of FAME and that he has a meritorious defense; (2) Avail of Rule 65 in proper cases
Court maintains order of default
Court sets aside order of default and defendant is allowed to file an answer Presentation of plaintiff’s evidence ex-parte Case set for pre-trial
If plaintiff proves his allegations: Judgment by default
If plaintiff fails allegations: Case is dismissed
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(3) Further modification, Heirs of Hinog v. Melicor (2005) Fees as lien Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment
E.7 FILING AND SERVICE OF PLEADINGS I. PAYMENT OF DOCKET FEES As a rule, the court acquires jurisdiction over the case only upon payment of prescribed fees General rule: Without payment, case is considered not filed. Payment of docket fees is mandatory and jurisdictional.
(4) Exception to the Sun Insurance doctrine, Gochan v. Gochan 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 damages.
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 (2005)]
II. FILING PLEADINGS
Effect of Failure to Pay Docket Fees at Filing
VERSUS
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Filing - The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2]
(1) The Manchester Rule: Manchester v. CA (1987) 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
Service - The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2] Papers required to be filed and served: (Rule 13, Sec. 4) (1) Pleading subsequent to the complaint; (2) Appearance; (3) Written Motion; (4) Notice; (5) Order; (6) Judgment; (7) Demand; (8) Offer of Judgment; (9) Resolution; (10) Similar papers.
(2) Relaxation of the Manchester Rule, Sun Insurance v. Asuncion (1989) NOT automatic dismissal Court may allow payment of fees within reasonable period of time. Note that payment should always be within the prescriptive period of the action filed.
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III. PERIODS OF FILING PLEADINGS Period Reckoning Point Answer to the Complaint Service of summons, General rule: Within unless a different 15 days period is fixed by the court (Rule 11, Sec. 1 Foreign private juridical entity defendant, summons Receipt of summons through government (Rule 11, Sec. 2) official: Within 30 days Non-resident defendant, with Service of extraterritorial service extrajudicial of summon: summons [Rule 14, reasonable time not Sec. 15] less than 60 days set by oourt Answer to amended Complaint Amendment was Service of a copy of matter of right: Within the amended 15 days complaint
is
Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Rule 11, Sec. 11]
IV. MANNER OF FILING Personal By personally presenting the original copy of the pleading, notice, appearance, motion, order, or judgment to the clerk of court. [Rule 13, Sec. 3] Deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992)]
Amendment not Notice of the order matter of right: Within admitting the same 10 days (Rule 11, Sec. 3) Answer to Counterclaim or Cross-Claim From service (Rule 11, Within 10 days Sec. 4) Answer to third (fourth, etc)-party complaint Same rule as answer Within 15 days to the complaint (Rule 11, Sec. 5) Reply From service of the Within 10 days pleading responded to (Rule 11, Sec. 6) Answer to supplemental complaint From notice of the Within 10 days order admitting the same, unless a
Registered Mail [Rule 13, Sec.3] Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). Deemed filed on the date it was deposited with the post office. Note: Filing a pleading by facsimile is not sanctioned. But fax was allowed in an extradition case (Justice Cuevas v. Juan Antonio Munoz)
V. MODES OF SERVICE Personal Service (Rule 13, Sec. 6)
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(1) Delivering personally a copy to the party, who is not represented by a counsel, or to his counsel; or (2) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or (3) Leaving the copy between 8am and 6pm at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing thereon – if not person is found in his office, or if his office is unknown, or if he has no office
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Done by delivery of the copy to the clerk of court with proof of failure of both personal and service by mail Proper only when: (1) Service cannot be made personally or by mail (2) Office and place of residence of the party of his counsel being unknown Service is complete at the time of such delivery Service of Judgments, Final Orders, or Resolutions Service is done either: (1) Personally (2) By registered mail (3) By publication, if: (a) A party is summoned by publication; and (b) Such party failed to appear in the action
Service by Mail (Rule 13, Sec. 7) (1) Ordinary Mail - it does not constitute filing until the papers are actually delivered into the custody of clerk or judge (a) Service may be done by ordinary mail if no registry service is available in the locality of either sender or addressee (2) Registered Mail - The date of mailing is the date of filing (a) Date of filing is determinable from 2 sources: (i) From the post office stamp on the envelope (ii) From the registry receipt
NOTE: There is NO substituted service of judgments and final orders
VI. PRIORITIES IN MODES OF SERVICE AND FILING General rule: Personal filing and service is preferred. (Rule 13, Sec. 11)
(b) It is done by depositing in the post office: (c) In a sealed envelope (d) Plainly addressed to the party or his counsel (i) At his office if known (ii) Otherwise, at his residence if known (e) Postage fully pre-paid (f) With instructions to the postmaster to return the mail to the sender after 10 days if undelivered
Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed. Exception: Papers emanating from the court.
VII. COMPLETENESS AND PROOF OF SERVICE Completeness of Proof of service service [Rule 13 Sec. [Rule 13 Sec. 13] 10] Personal service
Substituted Service (Rule 13, Sec. 8)
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(1) Written admission of the party served; or (2) Official return of the server; or Upon actual delivery (3) Affidavit of the party serving, with a full statement of the date/place/manner of service. Service by ordinary mail 10 days after Affidavit of person mailing, unless mailing of facts otherwise provided showing compliance by the court with Sec. 7 of Rule 13. Service by registered mail Whichever is earlier of: (1) Affidavit of person (1) Actual receipt by mailing showing the addressee; compliance as or above; and (2) 5 days after (2) Registry receipt addressee issued by the post received office postmaster's notice
(1) When it is doubtful who the attorney for such party is; or (2) When the lawyer cannot be located; or (3) When the party is directed to do something personally, as when he is ordered to show cause. [Retoni, Jr. v. CA]
Substituted Service
Completeness of Proof of filing Filing [Rule 13, Sec. 12] [Rule 13, Sec. 3] Personal filing Written or stamped Upon receipt by acknowledgment by the the clerk of court clerk of court Filing by registered mail On the date the (1) Registry receipt, and pleading was (2) Affidavit of the deposited with the person who did the post office mailing
Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client, as it would then be easy for the lawyer to prejudice the interests of his client by just alleging that he just forgot every process of the court affecting his clients, because he was so busy. [Bayog v. Natino]
VII. COMPLETENESS AND PROOF OF FILING General Rule: The filing of a pleading or paper is proved by its existence in the record of the case [Rule 13, Sec. 12] Exception: When the pleading or paper is not in the record, its filing may be proved as shown in the table below
At the time of delivery of the copy to the clerk of court together with proof of failure of both personal service and service by mail When service is effected by registered mail: (1) The registry return card which shall be filed immediately upon its receipt by the sender; or (2) The unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. [Rule 13, Sec. 13]
In the case of filing by registered mail, when the paper does not appear in the record, the affidavit of the person who did the mailing must contain:
Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless ordered by the court in the following circumstances: 50
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I. AMENDMENTS AS A MATTER OF RIGHT
(1) A full statement of the date and place of depositing the mail in the post office (2) The fact that the paper was in a sealed envelope addressed to the court (3) The fact that postage was fully paid (4) The fact that there were instructions to the postmaster to return the mail to the sender after 10 days if undelivered
A party may amend his pleading once as a matter of right, at any time before a responsive pleading is served, thus: (1) Amendment of complaint is before an answer is served. (2) Amendment of answer is before a reply is filed, or before the period for filing a reply expires, and (3) Amendment of reply any time within 10 days after it is served
E.8 AMENDMENT AND SUPPLEMENTAL PLEADINGS How to Amend Pleadings [Rule 10, Sec. 1] (1) Adding an allegation of a party; (2) Adding the name of a party; (3) Striking out an allegation of a party; (4) Striking out the name of a party; (5) Correcting a mistake in the name of a party; and (6) Correcting a mistaken or inadequate allegation or description in any other respect
A motion to dismiss is not a responsive pleading and does not preclude the exercise of the planitff’s right to amend his complaint/ [Remington Industrial Sales v. CA ]
II. AMENDMENTS BY LEAVE OF COURT Leave of court is necessary in the following instances: (1) Further amendments after the party has already amended his pleading as a matter of right; and (2) When a responsive pleading has already been served.
A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (Rule 10, Sec. 7)
Requisites (1) A motion for leave of court to amend pleading is filed
Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. [Rule 10, Sec. 1]
Amended pleading should be attached to the motion [Rule 15, Sec. 9]
As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. [Barfel Development v. CA (1993)]
(2) Notice is given to the adverse party (3) Parties are given opportunity to be heard When amendment may not be allowed (1) If the cause of action, defense or theory of the case is changed. (2) If amendment is intended to confer jurisdiction to the court. If the court has no jurisdiction in the subject matter of the case, the amendment 51
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of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)]
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(2) Also allows admission of evidence on a defense not raised in a motion or answer: (a) if no objection is made thereto; or (b) in the event of such objection, upon amendment of the answer with leave of court
(3) If amendment is for curing a premature cause of action. (4) If amendment is for purposes of delay.
However, where the plaintiff has no cause of action at the time of the filing of the complaint, this defect cannot be cured or remedied in this manner by the acquisition or accrual of one while the action is pending
III. FORMAL AMENDMENTS Instances: (1) Mere defect in the designation of the parties; (2) Other clearly clerical or typographical errors
Two Scenarios (1) No objection to the evidence is raised Issues not raised in pleadings are tried by express or implied consent of the parties; they are treated in all respects as if they had been raised. Such amendments as may be necessary to cause the pleadings to conform to the evidence may be made upon motion of any party at any time, even after judgment Failure to amend does not affect the result of the trial of those issues
The formal amendment must not cause prejudice to the adverse party. How formal amendments are effected (1) May be summarily corrected by the court at any stage of the action (2) A party may, by motion, call for the formal amendment
IV. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE
(2) Objection to the evidence is raised Objection on the ground that it is not within the issues made by the pleadings Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved As safeguard, the court may grant a continuance to enable the objecting party to meet such evidence
[Rule 10, Sec. 5] This is an instance wherein the court acquires jurisdiction over the issues even if the same are not alleged in the original pleadings, where the trial of said issues is with the express or implied consent of the parties
What Sec. 5 contemplates (1) Allows a complaint which states no cause of action to be cured either by: (a) Evidence presented without objection or (b) In the event of an objection sustained by the court, by an amendment of the complaint with leave of court
V. SUPPLEMENTAL PLEADINGS A pleading which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6] Purpose: To bring into the records new facts which will enlarge or change the kind of relief 52
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to which the plaintiff is entitled [Ada v. Baylon (2012)]
F. SUMMONS
How Made: Upon motion of a party, with reasonable notice and upon terms as are just.
The writ by which the defendant is notified of the action brought against him [Republic v. Domingo ]
The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court
Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the corresponding summons to the defendants. [Rule 14, Sec. 1]
Amended versus Supplemental Pleadings Supplemental Amendments pleadings Grounds for Reason for supplemental amendment is pleading arose after available at time of the filing of the first the first pleading pleading Either as a matter of Always by leave of right or by leave of court court Merely supplements, Supersedes the and exists side-byoriginal side with the original A new copy of the Does not require a entire pleading must new copy of the entire be filed pleading
Contents (1) Summons shall be: (a) Directed to the defendant (b) Signed by 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) A direction that the defendant answer within the time fixed by the Rules; and (c) 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)
Supplemental pleadings are not allowed on separate and distinct causes of action but a supplemental pleading may raise a new cause of action as long as it has some relation to the original cause of action set forth in the original complaint. [Ada v. Baylon (2012)]
Who may Serve Summons (1) The sheriff (2) His deputy (3) Other proper court officer (4) Any suitable person authorized by the court, for justifiable reasons. [Rule 14, Sec. 3]
VI. EFFECT OF AMENDED PLEADING (1) An amended pleading supersedes the pleading that it amends (2) Admissions in the superseded pleading can still be received in evidence against the pleader (3) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived [Rule 10, Sec. 8]
The enumeration of persons who may validly serve summons is exclusive. [Herrera]
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F.1 NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM
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defendant’s person, is not deemed a voluntary appearance. [Rule 14, Sec. 20]
F.3 MODES OF SERVICE OF SUMMONS
For Actions in Personam To acquire jurisdiction over the person of the defendant in a civil case; To give notice to the defendant that an action has been commenced against him.
Modes (1) Personal Service [Rule 14, Sec. 6] (2) Substituted Service [Rule 14, Sec. 7] (3) Service by Publication [Rule 14, Sec. 14-16] Summons cannot be served by mail Where service is made by publication, a copy of the summons and order of the court shall be sent by registered mail to last known address of defendant. [Rule 14, Sec. 15]
Where the action is in personam, that is, one brought against a person on the basis of his personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. [Velayo-Fong v. Velayo ]
Resort to registered mail is only complementary to service by publication but does not mean that service by registered mail alone would suffice.
For Actions in Rem and Quasi in Rem Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process Jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res
I. PERSONAL SERVICE How Done [Rule 14, Sec. 6] (1) By handing a copy of summons to him; or (2) If he refuses to receive it, by tendering it to him Personal Service of Pleadings Rule 13, Sec. 6 Personal service includes: 1. Service on the party or his counsel; or 2. By leaving a copy with the clerk or person having charge of his office; or 3. Leaving it with a person of sufficient age and discretion at the party’s or counsel’s
F.2 VOLUNTARY APPEARANCE Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except where such appearance is precisely to object the jurisdiction of the court over the person of the defendant [Carballo v. Encarnacion ] General Rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons. [Rule 14, Sec. 20] Exception: Special appearance to file a motion to dismiss. Inclusion in the motion to dismiss of grounds other than lack of jurisdiction over the
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Office or Regular Place of Business – office or place of business of defendant at the time of service Reasonable Time
residence
II. SUBSTITUTED SERVICE OF SUMMONS It is only when the defendant cannot be served personally within a reasonable time and for justifiable reasons that a substituted service may be made. [Rule 14, Sec. 7]
Person of Sufficient Age and Discretion Person in Charge
III. SERVICE BY PUBLICATION (CONSTRUCTIVE SERVICE)
How Done (1) By leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion residing therein; or (2) By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof
(1) Service upon Unknown Defendant [Rule 14, Sec. 14] (2) Extraterritorial Service of Summons [Rule 14, Sec. 15] (3) Service upon a Resident temporarily out of the Philippines [Rule 14, Sec. 16] Service upon Unknown Defendant [Rule 14, Sec. 14] Applicable in cases where: (1) Defendant is sued as an unknown owner; or (2) His whereabouts are unknown and cannot be ascertained with diligent inquiry
Requisites It is necessary to establish the following: (1) Indicate the impossibility of service of summons within a reasonable time; (2) Specify the efforts exerted to locate the defendant; and (3) State that the summons was served upon: (a) a person of sufficient age and discretion who is residing in the address, or (b) a person in charge of the office or regular place of business, of the defendant. (4) It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. [Sps. Tiu v. Villar (2012)]
Service of summons may be effected by publication in a newspaper of general circulation and in such places and for such time as the court may order The Section applies to “any action,” making no distinction between actions in rem, in personam and quasi in rem. Extraterritorial Service of Summons [Rule 14, Sec. 15] Applicable in cases where: (1) Defendant is a nonresident; (2) He is not found in the Philippines; and (3) The action is either in rem. or quasi in rem [Jose v. Boyon ]
Residence -- 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)
The actions in rem or quasi in rem, which would justify extraterritorial service of summons are: 55
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(1) Those which affect the personal status of the plaintiff, (2) Those which relate to, or the subject of which is, property within the Philippines in which defendant claims a lien or interest, actual or contingent; (3) Those in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines, or (4) Those wherein property of defendant within the Philippines has been attached
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Even without such Section, as the defendant has a residence in the Philippines, summons may also be served through substituted service under Rule 14, Sec. 7. Summons may be effected to a resident defendant, temporarily outside the Philippines, by: (1) Substituted service [Rule 14, Sec. 7] (2) Service by publication [Rule 14, Sec. 15]
IV. SPECIAL CLASSES OF DEFENDANTS Upon an Entity without Juridical Personality [Sec. 8] Applicable in cases where: (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
Service of summons is effecedt, by leave of court, in the following modes: (1) By personal service, as under Rule 14, Sec. 6; (2) By publication in a newspaper of general circulation in such places and for such time as court may order; in which case, a copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant; or (3) In any other manner the court may deem sufficient.
Service is effected upon all of them by: (1) Serving summons upon any of them; or (2) Serving summons upon the person in charge of their office or place of business Upon Prisoners [Sec. 9] Where the defendant is a prisoner confined in a jail or institution, service shall be by the management of such institution, who is deemed deputized as a special sheriff.
Any order granting such leave shall specify a reasonable time within which defendant must answer, which shall not be less than 60 days after notice. Service upon a Resident temporarily out of the Philippines [Rule 14, Sec. 16] Applicable in cases where: (1) Defendant is a resident of the Philippines; and (2) Is temporarily out of the country
Upon Minors and Incompetents [Sec. 10] Service upon minors is effected upon: (1) The minor defendant; and (2) His legal guardian, or any of his parents Service upon incompetents is effected upon: (1) The defendant personally; and (2) His legal guardian
Summons may, by leave of court, be effected as in the case of extraterritorial service but unlike in Rule 14, Sec. 15, it may be effected in this manner for “any action,” not distinguishing between actions in rem, in personam, and quasi in rem.
In either case, if there be no legal guardian, the plaintiff shall apply for the appointment of a guardian ad litem, whom he shall also serve upon.
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Upon Domestic Private Juridical Entity [Sec. 11] Service is effected upon: (1) The president, (2) Managing partner, (3) General manager, (4) Corporate secretary, (5) Treasurer, or (6) In- house counsel
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(2) Upon provinces, cities, municipalities, and like public corporations – through the executive head, or on such officers as law or the court may direct.
F.4 RETURN AND PROOF OF SERVICE Return [Rule 14, Sec. 4] When service has been completed, the server shall: (1) Serve a copy of the return to the plaintiff’s counsel, personally or by registered mail, within 5 days from service of summons; and (2) The server shall return the summons, accompanied by proof of service, to the clerk who issued it.
Upon a Foreign Private Juridical Entity [Sec. 12] Service is effected: (1) When the defendant is transacting business in the Philippines: (a) Upon the resident agent; or (if there be none) (b) Upon the government agent designated by law; or (c) Any officer or agent of the corporation.
It is required to be given to the plaintiff’s counsel in order to enable him: 1. To move for a default order should the defendant fail to answer on time, or 2. In case of non-service, so that alias summons may be sought
Note that service in the cases of (b) and (c) require that there is no resident agent (2) When the defendant is not registered in the Philippines, or has no agent, with leave of court: (a) By personal service coursed through the appropriate foreign court, with the assistance of the DFA; (b) By publication in a newspaper of general circulation in the country where the defendant may be found; and by serving a copy of the summons and court order by registered mail at the defendant’s last known address; (c) By facsimile or any recognized electronic means, which can generate proof of service; (d) By such other means directed by the court/
In either of the 2 cases, server must serve a copy of the return on plaintiff’s counsel within 5 days from completion or failure of service Alias Summons [Rule 14, Sec. 5] Upon plaintiff’s demand, the clerk may issue an alias summons if either: 1. Summons is returned without being served on any/all of the defendants. 2. Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service
Upon Public Corporations [Sec. 13] Service is effected: (1) Upon the Republic of the Philippines – to the Solicitor General;
Proof of Service [Rule 14, Sec. 18] Proof service shall be made in writing, and shall state (1) the manner, place, date of service;
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(2) any papers which served with the process; and (3) the name of the person who received the same.
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does not extinguish extinguishes the the action action (final relief) (interlocutory relief) Generally in writing Always in writing (with some exceptions)
Proof of service shall be sworn to when made by a person, other than the sheriff or his deputy.
General Rule: A motion does not pray for judgment
If effected by publication, proof of service shall be by: (1) The affidavit of the printer, his foreman, or principal clerk; or of the editor, business or advertising manager (2) A copy of the publication; and (3) An affidavit showing the deposit in the post office, with postage prepaid, directed for registered mail to the last known address of the defendant of: (a) A copy of the summons; and (b) The order of publication.
Exceptions: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.
G.1. CONTENTS AND FORM OF MOTION Contents [Rule 15, Sec. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) With supporting affidavits and other papers if: (a) Required by the Rules, or (b) Necessary to prove facts alleged therein
Effect of Defect of Proof of Service (1) Where sheriff’s return is defective, presumption of regularity in the performance of official functions will not lie (2) Defective return is insufficient and incompetent to prove that summons was indeed served (3) Party alleging valid summons will now prove that summons was indeed served (4) If there is no valid summons, court did not acquire jurisdiction which renders null and void all subsequent proceedings and issuances
Form [Rule 15, Sec. 2] Generally, in writing, except: (1) Motions for continuance made in the presence of the adverse party or those made in the course of the hearing or trial (2) Those made in open court even in the absence of the adverse party or those made in the course of a hearing or trial
G. MOTIONS IN GENERAL Motion – an application for relief other than by a pleading
G.2 KINDS OF MOTIONS Motions versus Pleadings Motion Pleading Contains allegations Contains allegations of facts of the ultimate facts Prays for a relief Prays for a relief Grant of the relief Grant of relief
(1) Litigated Motions -- one which requires the parties to be heard before a ruling on the motion is made by the court; written motions are generally litigated motions (2) Ex Parte Motions – one which does not require such ruling, and upon which the 58
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court may act without prejudicing the rights of the other party
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Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed. [Provident International Resources v. CA (1996)]
(3) Motion of Course - one for a relief or remedy, to which the movant is entitled as a matter of right; factual allegations contained therein do not require verification or investigation (4) Special Motions – one involving discretion of the court and requiring investigation on the facts alleged
Exceptions to the rule on Notice of Hearing (1) Ex parte motions; (2) Urgent motions; (3) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (4) Motions for summary judgment which must be served at least 10 days before its hearing.
(5) Pro Forma Motions – one which fails to indicate the time and place of the hearing
G.3 NOTICE OF HEARING AND HEARING OF MOTIONS Litigated written motions shall be set for hearing by the movant or applicant. [Rule 15, Sec. 4]
Proof of Service [Rule 15, Sec. 6] A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.
General Rule: Motions shall be scheduled for hearing on Motion Day (1) On Friday afternoons; or (2) Afternoon of the next working day, if Friday is a non-working day. [Rule 15, Sec. 7]
Exceptions: (1) If the motion is one which the court can hear ex parte. (2) If the court is satisfied that the rights of the adverse parties are not affected by the motion. (3) If the party is in default; such a party is not entitled to notice.
Exception: Motions which require immediate action Notice of Hearing Notice shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15, Sec. 5]
G.4. OMNIBUS MOTION RULE A motion attacking a pleading, order, judgment, or proceeding must include all objections then available. All objections not included in the motion are deemed waived.
Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4]
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
Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion.
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Exception: (1) Lack of jurisdiction over subject matter (2) Litis pendentia (3) Res judicata (4) Prescription
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definiteness or particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] What cannot be done in a Bill of Particulars: (1) To supply material allegations necessary to the validity of a pleading (2) To change a cause of action or defense stated in the pleading (3) To state a cause of action or defense other than that one stated (4) To set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to reply (5) To furnish evidentiary information
I. MOTION FOR BILL OF PARTICULARS Bill of Particulars –a detailed explanation respecting any matter which is not averred with sufficient definiteness or particularity in the complaint as to enable a party to properly prepare his responsive pleading [Rule 12, Sec. 1] 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 (1973)]
I.2 ACTION OF THE COURT Upon filing of the motion, the clerk must immediately bring it to the attention of the court. [Rule 14, Sec. 2]
I.1. PURPOSE AND WHEN APPLIED FOR The purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars, which avers matters with sufficient definiteness or particularity to enable the movant to prepare his responsive pleading.
The court may either: (1) Deny (2) Grant the motion outright (3) Allow the parties the opportunity to be heard
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. [Riano]
I.3 COMPLIANCE WITH THE ORDER
When Applied For (1) Before responding to a pleading (2) If sought to clarify a reply, within 10 days from service thereof
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 days from notice of order, unless the court fixes a different period.
Compliance with Order [Rule 12, Sec. 3]
The motion should point out: (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired. [Rule 12, Sec. 1]
Bill of Particulars or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party.
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A Bill of Particulars becomes part of the pleading for which it was intended. [Rule 12, Sec. 6]
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J. MOTION TO DISMISS A remedy of the defendant, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint
Effect of Non-Compliance [Rule 12, Sec. 4] (1) In case of non-compliance or insufficient compliance with the order for Bill of Particulars, the court may: (a) Order the striking out of the pleading (or portion thereof) to which the order is directed; or (b) Make such order as it may deem just.
The Motion hypothetically admits the truth of the factual allegations stated in the complaint. It is not a responsive pleading. It is not a pleading at all.
(2) If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof.
(3) If 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. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]
Types of Dismissal of Action: (1) Upon Motion to Dismiss under Rule 16; (2) Dismissal under Rule 17: (a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff. (3) Upon Demurrer to Evidence after plaintiff has presented his evidence under Rule 33; (4) Dismissal of an appeal.
I.4 EFFECT ON THE PERIOD TO FILE 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.
Period to File General Rule: Within the time for, but before filing of, the answer to the complaint or pleading asserting a claim
The movant may file his responsive pleading: (1) within the period he was entitled at the time the motion was filed; or (2) within 5 days, whichever is higher.
Exceptions: (1) For special reasons which may be allowed even after trial has begun, a motion to dismiss may be filed (2) The court has allowed the filing of a motion to dismiss where the evidence that would constitute a ground for dismissal was discovered during trial
Such period shall be reckoned from: (1) Service of the Bill of Particulars or more definite pleading; or (2) Notice of denial of his Motion for Bill of Particulars.
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General Rule: A court may not dismiss a case motu propio, unless a motion to that effect is filed by a party.
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Sec. 20, Rule 14 makes a categorical statement that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed voluntary appearance on his part.
Exceptions: (1) Upon the grounds stated in Rule 9, Sec. 1; (2) Due to fault of the plaintiff, under Rule 17, Sec. 3; (3) Pursuant to Sec. 4, Revised Rule on Summary Procedure.
II. LACK OF JURISDICTION OVER THE SUBJECT MATTER If the complaint shows lack of jurisdiction over subject matter on its face, the court may dismiss the case outright even without a motion to dismiss. [Rule 9, Sec. 1]
J.1. GROUNDS (1) Lack of jurisdiction over the defendant’s person (2) Lack of jurisdiction over the subject matter of the claim (3) Improper venue (4) Plaintiff’s lack of legal capacity to sue (5) Litis pendentia (6) Res judicata (7) Prescription (8) Failure to state a cause of action (9) Extinguished claim (10) Unenforceable claim under the Statute of Frauds (11) Non-compliance with a condition precedent for filing claim
A motion to dismiss on this ground may also be raised 1. Before answer; 2. After answer is filed; 3. After hearing had commenced; 4. At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer. NOTE: The rule refers to the subject matter of each particular claim and not only to that of the suit. Hence. other initiatory pleadings included.
NOTE: Complaints cannot be dismissed on ground not alleged in a motion to dismiss. The motion may be based on only one of the grounds enumerated in Sec. 1, Rule 16
Where a party invokes the jurisdiction of a court to obtain affirmative relief and fails, he cannot thereafter repudiate such jurisdiction. While the issue of jurisdiction may be raised at any time, he is estopped as it is tantamount to speculating on the fortunes of litigation (Crisostomo, et al. v. CA)
I. LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT This objection must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made.
III. IMPROPER VENUE Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid. [Diaz v. Adiong (1993)]
In La Naval Drug Corp. v. CA, et al. the Court held that while lack of jurisdiction over the person of defendant may be duly and seasonably raised, his voluntary appearance in court without qualification is a waiver of such defense.
Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition [Enriquez v. Macadaeg ] 62
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prove the pendency of another case, even if same had been brought later.
IV. PLAINTIFF HAS NO LEGAL CAPACITY TO SUE
It is not required that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: (1) The More Appropriate Action Test; (2) The Interest of Justice Test, taking into account: (a) Nature of the controversy; (b) Comparative accessibility of the court to the parties; (c) Other similar factors.
The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); (2) When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate). Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action.
In both tests, the parties’ good faith shall be taken into consideration. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)]
The issue of plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceedings below [Univ. of Pangasinan Faculty Union v. Univ. of Pangasinan ]
VI. RES JUDICATA Two concepts of res judicata [Topacio v. Banco Savings and Mortgage Bank (2010)] (1) Bar by prior judgment [Rule 39, Sec. 47(b)] Judgment on the merits in the first case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case.
V. LITIS PENDENTIA Requisites (1) Identity of parties, or at least such as representing the same interest in both actions; (2) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) Identity of the two cases such that judgment in one would amount to res judicata on the action under consideration [Film Development Council of the Philippines v. SM Prime Holdings, Inc. (2013)]
(2) Conclusiveness of judgment [Rule 39, Sec. 47(c)] The second action is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.
It is not required to allege that there be a prior pending case. It is sufficient to allege and
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Requisites for “Bar by Prior Judgment” (1) former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (4) there must be, between the two actions, identity: (a) of parties; (b) of subject matter; and (c) of causes of action [Topacio v. Banco Filipino Savings and Mortgage Bank (2010)]
A matter of time Statutory Applies in law Based on fixed time
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Defense of prescription is waived and cannot be considered on appeal if not raised in the trial court (Ramos v. Osorio) However, if the allegations of the complaint, or evidence presented, clearly indicate that the action has prescribed, or where there is no issue in fact as to prescription, defense of prescription is not deemed waived by failure to allege the same (Chua Lamko v. Dioso)
The test of identity of cause of action lies not in the form of the action but on whether or not the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)]
Estoppel and prescription cannot be invoked against the State (Republic v. CA) A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed (Sison v. McQuaid)
Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; (2) The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)]
If it is not apparent on its face, take note that Sec. 3 prohibits deferment of the resolution of the motion. Thus: 1. Evidence may be received in support of the motion under Sec. 2, Rule 16; or 2. The motion to dismiss should be denied without prejudice to the complaint’s dismissal if evidence disclose that the action had already prescribed (Sec. 1, Rule 9)
VII. STATUTE OF LIMITATIONS Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription.
VIII. COMPLAINT STATES NO CAUSE OF ACTION Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action.
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The failure to state a cause of action must be evident on the face of the complaint itself.
admissions or evidence presented and with prejudice
Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action?
IX. EXTINGUISHED CLAIM That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished.
A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint.
X. UNENFORCEABLE CLAIM UNDER THE STATUTE OF FRAUDS Article 1403(2) of the Civil Code requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (1) An agreement that by its terms is not to be performed within a year from the making thereof; (2) A special promise to answer for the debt, default, or miscarriage of another; (3) An agreement made in consideration of marriage, other than a mutual promise to marry; (4) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (5) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (6) A representation as to the credit of a third person.
If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real partyin-interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] Complaint states no cause of action Insufficiency of allegations in the pleading May be raised in a Motion to Dismiss at any time but before the filing the answer to the complaint or pleading asserting a claim Dismissal due to failure to state a cause of action can be made at the earliest stages of an action and without prejudice
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No cause of action Insufficiency of factual basis for the action
May be raised at any time
Dismissal due to lack of cause of action is made after questions of fact have been resolved on the basis of stipulations,
Unlike a motion to dismiss on the ground that the complaint states no cause of action, a 65
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motion invoking the Statute of Frauds may be filed even if the absence of a cause of action does not appear on the face of the complaint. Such absence may be proved during the hearing of the motion to dismiss on said ground. (Yuviengco et al. v. Dacuycuy, etc., et al.)
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Evidence need not be presented when the ground relied upon is “failure to state a cause of action,” which must generally be determined on the basis of the facts alleged in the complaint. Lack of formal hearing is not fatal when the issues raised were fully discussed in the motion and opposition. [Castillo v. CA ]
XI. NON-COMPLIANCE WITH CONDITION PRECEDENT Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action (Pineda v. CFI Davao, et al.)
After hearing, the court may: (1) Dismiss the action/claim (2) Deny the MTD (3) Order amendment of the pleadings [Rule 16, Sec. 3]
Where the complaint does not state that it is one of the excepted cases, or it does not allege prior availment of conciliation process, or it does not have a certification that no conciliation or settlement had been reached under P 1508, case should be dismissed on motion (Morata v. Go, et al.)
The court cannot defer the resolution of the motion for the reason that the ground relied upon is not indubitable, and must clearly and distinctly state the reasons for its resolution.
Where the defendant had participated in the trial court without any invocation of PD 1508, and the judgment therein had become final and executory, but said defendant thereafter sought the annulment of the decision for alleged lack of jurisdiction, the same was denied under the doctrine of estoppel and laches (Royales, et al., v. IAC)
Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds. [Rule 16, Sec. 1 (f),(h),(i)]
J.3. BAR BY DISMISSAL General rule: The action/claim may be re-filed.
J.2. RESOLUTION OF MOTION
J.4. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED
A motion to dismiss is a litigated motion and should be heard. During the hearing, parties shall submit: (1) Arguments on questions of law (2) Evidence on questions of fact, except those not available at that time
If the motion is granted, the complaint is dismissed. Such dismissal is final, and not interlocutory. The plaintiff has several options: (1) Where dismissal for certain grounds are not tantamount to adjudication on the merits (e.g. improper venue), the plaintiff may refile the complaint.
If the case should later go to trial, evidence presented in the hearing shall automatically be part of the evidence of the party presenting the same.
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(2) Where it is for a ground which bars re-filing, the plaintiff may appeal from the order of dismissal; (3) Where the dismissal was tainted with grave abuse of discretion, the plaintiff may also avail of a petition for certiorari. [Riano]
A defendant with a counterclaim should plead these grounds as affirmative defenses as dismissal of the complaint under this section shall be without prejudice to the prosecution of the counterclaim in the same or separate action.
J.5. REMEDIES OF DEFENDANT WHEN THE MOTION IS DENIED
J.7. DISTINGUISHED FROM DEMURRER TO EVIDENCE [RULE 33]
If the motion is denied, the denial is interlocutory.
A motion to dismiss under this Rule differs from a motion to dismiss under Rule 33 on demurrer to evidence:
General Rule: The filing of an answer and going through the usual trial process, and later, the filing of a timely appeal from the adverse judgment are the proper remedies against a denial of a motion to dismiss.
Motion to Dismiss Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him If denied, defendant must file an answer, or else he may be declared in default
If the motion is denied, the movant shall file his answer: (1) within the balance of the period prescribed under Rule 11 to which he was entitled at the time of serving his motion; or (2) within 5 days, whichever is higher. [Rule 16, Sec. 4] If the pleading is ordered to be amended, the movant shall file his answer within the period prescribed by Rule 11, counted from service of amended pleading, unless a longer period is prescribed by the court. Exception: The denial may be assailed by certiorari, prohibition or mandamus, if there is a showing that the denial was tainted by with grave abuse of discretion amounting to lack of jurisdiction.
If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case
J.6. WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES If no motion to dismiss had been filed, any of the grounds for dismissal may be pleaded as affirmative defenses and a preliminary hearing may be had at court’s discretion. [Rule 16, Sec. 6] 67
Demurrer to Evidence Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed for the dismissal of the case only after the plaintiff has completed the presentation of his evidence
If denied, defendant may present evidence If granted, plaintiff appeals and the order of dismissal is reversed, defendant loses his right to present evidence
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(2) both actions based on , or including, the same claims; (3) in a court of competent jurisdiction.
K. DISMISSAL OF ACTIONS K.1. DISMISSAL PLAINTIFF
UPON
NOTICE
REMEDIAL LAW
BY
The second dismissal operates adjudication on the merits.
Dismissal by plaintiff as a matter of right Dismissal is effected by mere notice of dismissal, which is a matter of right, before service of: 1. The answer; or 2. A motion for summary judgment
as
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K.2. DISMISSAL UPON MOTION OF PLAINTIFF Under this section, dismissal of the complaint is subject to the discretion of the court and upon such terms and conditions as may be just.
The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff, not when the answer or the motion is filed with the court.
General Rule: Dismissal is without prejudice Exceptions: (1) When otherwise stated in the motion to dismiss; or (2) When stated to be with prejudice in the order of the court
Withdrawal is not automatic but requires an order by the court confirming the dismissal. Until confirmed, the withdrawal does not take effect. The requirement is in keeping with the respect due the court. [Herrera]
Effect on Counterclaim: If counterclaim has been pleaded by defendant prior to service upon him of plaintiff’s motion for dismissal, dismissal shall be limited to the complaint
However, it is not the order which operates to dismiss the complaint. As stated by the rule, it merely confirms the dismissal already effected by the filing of the notice. [Riano]
The defendant either: (1) Prosecute his counterclaim in a separate action; or The court should render the corresponding order granting the plaintiff’s motion and reserving his right to prosecute his claim in a separate complaint
General Rule: Dismissal is without prejudice Exceptions: (1) Where the notice of dismissal so provides; or (2) Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (“Two Dismissal Rule”) (3) Where the notice of dismissal is premised on a reason which would prevent refiling of the complaint (e.g. extinguishment or res judicata) [Riano]
(2) Have the same resolved in the same action Defendant must manifest such preference to the trial court within 15 days from notice of the plaintiff’s motion to dismiss These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive.
Two Dismissal Rule Applies when the following are met: (1) plantiff had twice dismissed actions; 68
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K.3. DISMISSAL DUE TO FAULT OF THE PLAINTIFF
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(3) Fails to comply with the Rules or any court order. (a) The order must be valid (b) Failure to comply with order: (c) Dismissal for failure to comply with order to amend complaint to make claims asserted more definite is ground for dismissal (Santos v. General Wood Craft) (d) Failure to comply with an order to include indispensable parties is ground for dismissal (Aranico-Rubino v. Aquino) (e) The failure to comply with order of new judge to recall witness so he may observe demeanor is sufficient ground for dismissal (Castillo v. Torres)
The case may be dismissed motu proprio or upon the defendant’s motion if, without justifiable cause, 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 crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)] (b) Since plaintiff’s presence is now required only during the presentation of his evidence in chief, his absence during the presentation of defendant or other parties’ evidence, or even at rebuttal or subsequent stages, is not a ground for dismissal.
(4) Failure to comply with rules (a) The failure of the parties to submit a compromise agreement within period granted to them by court is not a ground for dismissal (Goldloop Properties Inc. v. CA) (b) Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned (Sotto v. Valenzuela) (c) 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. CFISorsogon)
(2) Fails to prosecute his action for an unreasonable length of time (nolle prosequi); (a) The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (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.) (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. (Goldloop Properties Inc. v. CA)
General Rule: Dismissal is with prejudice, and operates as an adjudication on the merits Exceptions: (1) The court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action (2) If court has not yet acquired jurisdiction over the person of the defendant 69
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Effect on Counterclaim: Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action
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It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the case, such as: 1. Number of witnesses 2. Tenor or character of their testimonies 3. Documentary evidence; nature and purpose of each 4. Number of trial dates [Herrera]
Defendant is not required to manifest his preference within a 15-day period as in Sec. 2. The motions to dismiss in this section and in Rule 16, Sec. 6 are filed by a defendant who has already deliberated on the course of action he intends to take on his counterclaim and which he may even manifest right in his motion to dismiss. The dismissal in Sec. 2 is at the instance of plaintiff, hence, defendant is granted the time and duty to manifest preference within 15 days from notice, after an opportunity to study the situation.
L.1. NATURE AND PURPOSE Purpose of pre-trial is to consider: [Rule 18, Sec. 2] (1) Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (2) Simplification of the issues; (3) Necessity/desirability of amendments to the pleadings; (4) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (5) Limitation of the number of witnesses; (6) Advisability of a preliminary reference of issues to a commissioner; (7) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (8) Advisability/necessity of suspending the proceedings; and (9) Other matters that may aid in the prompt disposition of the action.
K.4. 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 claimant by notice as in Sec. 1, shall be made: (1) Before a responsive pleading or motion for summary judgment is served; or (2) If there is none, before introduction of evidence at trial or hearing
L. PRE-TRIAL Pre-Trial is a mandatory conference and personal confrontation before the judge between the parties and their respective counsel, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice.
Pre-trial is Mandatory Mandatory nature is addressed to both court and parties:
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counsel and the parties actually knew of the pre-trial (Bembo v. CA)
Court must set the case for pre-trial and notify the parties as well as counsel to appear Parties with their counsel are obliged to obey the order of the court to that effect
L.3. APPEARANCE OF PARTIES It is the duty of both the parties and their counsel to appear at the pre-trial. [Rule 18, Sec. 4]
Primary Objective Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.
When non-appearance is excused [Rule 18, Sec. 4] Non-appearance of a party may be excused only if either: (1) Valid cause is shown for it; (2) A representative appears in his behalf, fully authorized in writing: (a) To enter into an amicable settlement; (b) To submit to alternative modes of dispute resolution; and (c) To enter into stipulations/admissions of facts and of documents.
Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]
L.2. NOTICE OF PRE-TRIAL
The written special authority must be in the form of a special power of attorney as authority to enter into amicable settlement must be in such form. [Rule 138, Sec. 23; Article 1878(3), Civil Code]
After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1] Within 5 days from date of filing of the reply, plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk shall issue a Notice of Pre-Trial [AM No. 031-09-SC]
Effect of Failure to Appear; Order of Non-suit (1) Of the plaintiff – the case shall be dismissed with prejudice, unless the court orders (2) Of the defendant – the plaintiff shall be allowed to present evidence ex parte, and judgment shall be rendered based thereon [Rule 18, Sec. 5]
The “last pleading” need not be literally construed as the actual filing of the last pleading. For purpose of pre-trial, the expiration of the period for filing the last pleading is sufficient [Sarmiento v. Juan ]
The non-appearance of defendant in pre-trial is not a ground to declare him in default. Thus, we distinguish: Failure to appear by Default by defendant defendant (Rule 18, (Rule 9, Sec. 3) Sec. 5) Upon motion and Not required notice to defendant. Requires proof of Not required
The notice shall be served on counsel, or on the party if he has no counsel. [Rule 18, Sec. 3] The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that 71
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(1) Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (2) Summary of admitted facts and proposed stipulation of facts; (3) Issues to be tried/resolved; (4) Documents/exhibits to be presented, stating the purpose thereof; (5) Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; (6) Number and names of the witnesses, and the substance of their respective testimonies. [AM No. 03-1-09-SC]
failure to answer Court renders Court may render judgment based on judgment without the evidence receiving evidence presented ex parte Judgment by Default Judgment Ex Parte Relief awarded must Relief awarded may be the same in nature be of different nature and amount as prayed and amount from the for in the complaint relief prayed for When we say that a defendant is “in default” it speaks of his failure to file responsive pleading and not his non-appearance at pre-trial. Remedies of Non-suited Party (1) For a non-suited plaintiff: Since the dismissal is with prejudice, it has the effect of an adjudication on the merits. The proper remedy of the plaintiff is appeal, not certiorari [Chingkoe v. Republic (2013)]
Remedy of defendant is to file a motion for reconsideration, showing that his failure to file a trial brief was due to fraud, accident, mistake, or excusable negligence. The filing of pre-trial brief is mandatory, and is not excused simply because the defendant was not represented by counsel. [Saguid v. CA (2003)]
(2) For a non-suited defendant: Since the order allowing presentation of the evidence ex parte does not dispose of the case, it is interlocutory. The remedy of the defendant is to file a motion for reconsideration, and if denial is with grave abuse of discretion, file a petition for certiorari [Riano]
No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown. [A.M. No. 03-1-09-SC]
L.5. PROCEEDINGS DURING AND AFTER PRE-TRIAL
L.4. PRE-TRIAL BRIEF
Record of Pre-Trial The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order. [Rule 18, Sec. 7]
Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial. It is mandatory for parties to file their pre-trial briefs as failure shall have the same effect as failure to appear at the pre-trial. [Rule 18, Sec.6]
One Day Examination of Witness Rule The court shall ask the parties to agree on specific dates for continuous trial, adhere to the case flow chart determined by the court,
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and use the time frame for each stage in setting the trial dates.
Civil Case [Rule 18] Set when the plaintiff moves ex parte to set the case for pre-trial [Sec. 1] Made after the last pleading has been served and filed [Sec. 1]
Adherence to the One Day Examination of Witness Rule shall be required where the witness shall be fully examined in one day only, subject to the court’s discretion during the trial on whether or not to extend the examination for justifiable reasons. [A.M. No. 03-1-09-SC] Most Important Witness Rule The court shall determine the most important witnesses, limit the number of such witnesses and require the parties and/or counsels to submit to the branch clerk of court the names, addresses and contact numbers of the witnesses to be summoned by subpoena. The court may also refer the case to trial by commissioner under Rule 32. [A.M. 03-1-09-SC]
Possibility of an amicable settlement as an important objective [Sec. 2(a)] The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Sec. 4] A pre-trial brief is specifically required to be submitted [Sec. 6]
Contents of Pre-Trial Order (1) Matters taken up in the conference; (2) Action taken thereon; (3) Amendments allowed on the pleadings; (4) Agreements/admissions made by the parties as to any matters considered; (5) Should the action proceed to trial, the explicit definition and limit of the issues to be tried.
REMEDIAL LAW Criminal Case [Rule 118] Ordered by the court and no motion is required from either party [Sec. 1] Ordered by the court after arraignment, and within 30 days from the date the court acquired jurisdiction over the person of the accused Sec. 1] Possibility of amicable settlement of criminal liability not among its purposes [ Sec. 1] Sanctions are imposed upon the counsel for the accused or the prosecutor [Sec. 3] A pre-trial brief is not specifically required.
Pre-trial under Criminal Cases require stricter procedure: Civil Case: The arrangements and admissions are not required to be signed by both parties and their counsels; instead contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7]
Effect of Pre-Trial Order The contents of the order shall control the subsequent course of the action; unless: (1) Modified before trial to prevent manifest injustice [Rule 18, Sec. 7] (2) Issues impliedly included therein or may be inferable therefrom by necessary implication [Philippine Export and Foreign Loan Giuarantee Corp. v. Amalgated Management and Development Corp. ] (3) Amendment to conform to evidence [Rule 10, Sec. 5]
Recently, the proceedings during the preliminary conference are recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel. Note that either the party or his counsel may sign. [A.M. No. 03-1-09-SC]
L.6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND IN CRIMINAL CASE
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conference are reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]
L.7. ALTERNATIVE RESOLUTION
REMEDIAL LAW
Policy: To actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes [RA 9285, Sec. 2]
DISPUTE
Exception to the Application of RA 9285 [Sec. 6] (1) labor disputes covered by the Labor Code; (2) the civil status of persons; (3) validity of a marriage; (4) any ground for legal separation; (5) the jurisdiction of courts; (6) future legitime; (7) criminal liability; and (8) those which by law cannot be compromised.
One the purposes of pre-trial is the consideration of the possibility of amicable settlement, or of a submission to alternative modes of dispute resolution. [Rule 18, Sec. 2(a)] The pre-trial briefs of parties must include the parties’ statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution [Rule 18, Sec. 6; A.M. No. 03-1-09SC]
Modes of Alternative Dispute Resolution [Sec. 3, RA 9285] (1) 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
At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the Philippine Mediation Center mediation unit for purposes of mediation if available. IF mediation fails, the judge will schedule the continuance of the preliminary conference. [AM No. 03-1-09-SC]
Different Kinds: (1) Domestic Arbitration – an arbitration that is not international; governed by RA 876 (Arbitration Law) [RA 9285, Sec. 32] (2) International Arbitration – An arbitration is international if: The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or One of the following places is situated outside the State in which the parties have their places of business [Article 3, Model Law on International Commercial Arbritration]
The judge should not allow the termination of pre-trial siply because of the manifestation of the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial [A.M. No 03-1-09-SC]
I. ALTERNATIVE DISPUTE RESOLUTION SYSTEM 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, as defined in the Act, in which a neutral third party participates to assist in the resolution of issue [RA 9285, Sec. 3(a)]
(2) Mediation – a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, 74
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and assist the parties in reaching a voluntary agreement regarding a dispute; includes conciliation [Sec. 7, RA 9285]
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(10) Recognition and Enforcement of a Foreign Arbitral Award; (11) Confidentiality/Protective Orders; and (12) Deposit and Enforcement of Mediated Settlement Agreements.
(3) Mini-Trial – a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement
Service and Filing of Petition The petitioner shall serve, either by personal service or courier, a copy of the petition upon the respondent before the filing thereof. Proof of service shall be attached to the petition filed in court.
(4) Early Neutral Evaluation – a 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
Notice is served once the court finds petition sufficient in form and substance, directing the parties to appear at a particular time and date for hearing and allowing him to file a comment or opposition to petition within 15 days from receipt of notice. Hearing shall not be set no later than 5 days from lapse of period for filing opposition or comment.
(5) Combinations of alternative dispute resolution processes: Med-Arb - step dispute resolution process involving both mediation and arbitration
Summary Hearing - In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts.
Special Rules of Court on ADR [A.M. No. 07-1108-SC] The Special ADR Rules shall apply to and govern the following cases (Rule 1.1) (1) Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement; (2) Referral ADR (3) Interim Measures of Protection; (4) Appointment of Arbitrator; (5) Challenge to Appointment of Arbitrator; (6) Termination of Mandate of Arbitrator; (7) Assistance in Taking Evidence; (8) Confirmation, Correction or Vacation of Award in Domestic Arbitration; (9) Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration;
Prohibited Submissions (Rule 1.6) (1) Motion to dismiss; (2) Motion for bill of particulars; (3) Motion for new trial or for reopening of trial; (4) Petition for relief from judgment; (5) Motion for extension, except in cases where an ex-parte temporary order of protection has been issued; (6) Rejoinder to reply; (7) Motion to declare a party in default; and (8) Any other pleading specifically disallowed under any provision of the Special ADR Rules.
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No summons (Rule 1.9) In cases covered by the Special ADR Rules, a court acquires authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a copy of the petition and the notice of hearing.
PRE – TRIAL
NO SETTLEMENT
Agreements made by parties; Amendments to pleading; Schedule of Trial
FAILURE APPEAR
TO
AMICABLE SETTLEMENT
If defendant is absent, court may hear evidence of plaintiff ex parte
If plaintiff is absent when so required to attend, court may dismiss the case
TRIAL
If evidence is insufficient to prove plaintiff’s cause of action or defendant’s counterclaim, court rules in favor of either one or dismisses the case COURT RENDERS DECISION
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and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall [2011]]
M. INTERVENTION A proceeding in a suit or an action by which a third person is permitted by the court to make himself a party, either: (1) Joining plaintiff in claiming what is sought by the complaint; (2) Joining with defendant in resisting the claims of the plaintiff; or (3) demanding something adverse to both of them. [Herrera]
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 (2011)]
Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. [Carino v. Ofilada, 1993]
M.2. TIME TO INTERVENE The motion to intervene may be filed at any time before rendition of judgment by the trial court.
M.1. REQUISITES FOR INTERVENTION
EFFECTED BY:
(1) The legal interest: (a) In the matter in controversy; or (b) In the success of either of the parties; or (c) 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 office thereof; (2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties (3) Intervenor’s rights may not be fully protected in a separate proceeding [Lorenza Ortega v. CA, 1998]
(1) A motion to intervene (2) Attaching the pleading-in-intervention; and (3) Also erving the motion and pleading-inintervention on the original parties [Rule 19, Sec. 2] General Rule: Allowance of intervention is discretionary with the court Exception: When the indispensable party
intervenor
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an
PLEADINGS-IN-INTERVENTION (1) Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties. (2) Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter. (3) Answer to complaint-in-intervention [Rule 19, Sec. 4] - It must be filed within 15 days from notice of the order admitting the
MEANING OF LEGAL INTEREST Interest – must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. 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 77
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complaint-in-intervention, unless different period is fixed by the court.
a
(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
M.3. REMEDIES OF THE PARTIES (1) If intervention is denied (a) Aggrieved party may appeal (b) Mandamus will not lie except in case of grave abuse of discretion (2) If intervention is granted (a) A grant of a motion to intervene is interlocutory (b) Hence, anyone who objects can file a petition for certiorari for improper granting of intervention
All processes issued by the MTC and MCTC in cases falling within their jurisdiction may be served anywhere in the Philippines without the necessity of certification by the judge of the RTC [Sec. 38(2), BP 129]
FORM AND CONTENTS [Rule 21, Sec. 3] (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 (3) for subpoena duces tecum, shall also contain a reasonable description of the books, or things demanded which must appear to the court to be prima facie relevant
N. SUBPOENA A process directed to a person requiring him: (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 deposition; or (2) To bring with him any books, documents, or other things under his control [Rule 21, Sec. 1] Subpoena An order to appear and testify or to produce books and documents May be served to a non-party Needs tender of kilometrage, attendance fee and reasonable cost of production fee
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N.1. SUBPOENA DUCES TECUM A process directed to a person requiring him to bring with him books, documents, or other things under his control [Rule 21, Sec. 1]
Summons An order to answer complaint
Does not need tender of kilometrage and other fees
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.
[Rule 21, Sec. 2] (1) Court before whom the witness is required to attend (2) Court of the place where the deposition is to be taken
Before this subpoena may issue, the court must first be satisfied that the following tests are met: (1) Test of relevancy – the books, documents, or other things requested must appear prima facie relevant to the issue subject of the controversy;
Served on defendant
the
WHO MAY ISSUE
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(2) Test of definiteness – such books must be reasonably described by the parties to be readily identified
The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it. [Rule 21, Sec. 9]
N.2. SUBPOENA AD TESTIFICANDUM
Exception: Provisions regarding the compelling of attendance [Sec. 8] and contempt [Sec. 9] do not apply where: (1) Witness resides more than 100km from his residence to the place where he is to testify by the ordinary course of travel [“viatory right”]; or (2) Permission of the court in which the detention prisoner’s case is pending was not obtained
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 [Rule 21, Sec. 1]
N.3. SERVICE OF SUBPOENA Service of subpoena shall be made in the same manner as personal or substituted service of summons. [Rule 21, Sec. 6]
Note: “Viatory right” applies only in civil cases, not criminal cases. [Genorga v. Quitain (1977)]
Formalities (1) The original is exhibited to the person served; (2) A copy is delivered to him; and (3) Tender is made to him of the following: (a) fees for one day’s attendance; (b) kilometrage allowed by the Rules; and (c) in the case of subpoena duces tecum, the reasonable cost of producing the books, documents and things demanded.
N.5. QUASHING OF SUBPOENA Quashing of subpoena is done by the court, upon motion promptly made at or before the time specified in the subpoena. [Rule 21, Sec. 4]
GROUNDS (1) For quashing subpoena duces tecum: (a) That the subpoena is unreasonable and oppressive; (b) That the articles sought do not appear prima facie relevant to the issues; (c) That the applicant does not advance the cost for the production of the articles desired; or (d) That there was no tender of witness fees and kilometrage. (2) For quashing subpoena ad testificandum (a) That the witness is not bound thereby, or (b) That there was no tender of witness fees and kilometrage.
Note: Tender of these amounts need not be made if subpoena is issued by or on behalf of the Republic, or an officer or agency thereof When made: must be such as to allow the witness reasonable time for preparation and travel to the place of attendance
N.4. COMPELLING ATTENDANCE OF WITNESS The court which issued the subpoena may, upon proof of service and failure of witness to attend, issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause [Rule 21, Sec. 8] 79
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CIVIL PROCEDURE (2) Without leave been served Note: The taking confined in prison whether before or [Rule 23, Sec. 1]
O. 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 [Riano] 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 [RIano citing C.J.S.]
REMEDIAL LAW of court after answer has of deposition of a person is always by leave of court, after service of the answer.
Before whom Depositions are taken [Rule 23, Sec. 10-11] (1) Within the Philippines: (a) Judge (b) Notary Public, or (c) Any person authorized to administer oaths, as stipulated by the parties in writing (2) Outside the Philippines (a) On notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Philippines (b) Before such person or officer as may be appointed by commission or under letter rogatory or (c) Any person authorized to administer oaths as stipulated by parties in writing
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 thing [Rule 27] (6) Physical and mental examination of persons [Rule 28]
O.1 DEPOSITIONS [Rules 23-24] 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 [Riano]
Disqualification by interest [Rule 23, Sec. 13] No deposition shall be taken before the following: (1) A relative by affinity or consanguinity within the 6th degree of any party; (2) An employee or counsel of any of the parties (3) A relative within the same degree or employee of such counsel; (4) Any person financially interested in the action
Kinds of Depositions (1) Depositions pending action [Rule 23] – called deposition de bene esse (2) Depositions before action or pending appeal [Rule 24] – called depositions in perpetuam rei memoriam
I. TAKING OF DEPOSITION When Depositions Pending Action Taken [Rule 23, Sec. 1] (1) With leave of court (a) after jurisdiction has been obtained over any defendant or over the property which is the subject of the action, but (b) before an answer has been served
Taking Depositions upon Oral Examination (1) A party desiring to take the deposition shall give reasonable notice in writing to every party stating the time and place for taking the deposition and the name and
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address of each person to be examined. [Sec. 15] (2) After notice is served, the court may make any order for protection of the parties and the deponent. [Sec. 16]
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(3) Under such limitations as the court may order under Secs. 16 and 18. These may relate to: (1) any claim or defense of any other party; (2) the existence, description, nature, custody, condition, and location of books, documents and other tangible things; or (3) the identity or location of persons having knowledge of relevant facts.
(3) The attendance of the witnesses may be compelled by the use of subpoena. [Sec. 1] (4) The deponent may be examined following the procedures for witnesses in a trial, and may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness. [Sec. 3] (5) The officer before whom the deposition is being taken has no authority to rule on objections interposed during the course of the deposition but any objections shall be noted by him upon the deposition. Any evidence that is objected to shall be taken subject to the objection. [Sec. 17]
Specific Uses of Depositions [Rule 23, Sec. 4] The use of depositions depends on whether deponent is a party or not. (1) For contradicting or impeaching the testimony of the former deponent, now testifying as a witness Only used to contradict, not as proof of specific facts Cannot be used for this person if deponent does not testify
Effect of Taking Depositions [Rule 23, Sec. 7] A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence.
(2) For any purpose, if the deponent was an adverse party May be used as an admission Cannot, however, be used in the trial of a case against a defendant who was not a party to the action when the deposition was taken
II. USES AND SCOPE OF DEPOSITION General Uses of Deposition: (1) 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 (2) Dual functions: (a) A method of discovery (b) A method of presenting testimony in lieu of oral open court testimony
(3) Deposition of a witness or party may be used for any purpose under the following circumstances: (a) Witness-deponent is dead – there must be proof or presumption of death, and proof that the deposition was lawfully taken (b) Witness resides more than 100 km from the place of trial or hearing, or is out of the country -- unless absence was procured by the proponent of the deposition (c) Disability of a witness due to age, sickness, infirmity, or imprisonment –
Scope of Examination [Rule 23, Sec. 2] Deponent may be examined as to any matter: (1) Not privileged; (2) Relevant to the subject of the pending action; and 81
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proven by certificate of attending physician (d) Inability to procure attendance of witness by subpoena (e) Exceptional circumstances
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When done: At any time during the taking of deposition Grounds: That the examination is being conducted: (1) In bad faith, or (2) In such manner as unreasonably to annoy, embarrass or oppress the deponent or party
General rule: A deposition is not a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay. [Dasmarinas Garments Inc. v. Reyes, 1993].
Effect of Errors and Irregularities in Depositions [Rule 23, Sec. 29] Error and Effect Irregularities Waived As to notice for Unless written objection is taking promptly served upon depositions party giving notice Waived Objection to Unless made: taking (1) Before taking of deposition deposition begins or because of (2) As soon thereafter as disqualification disqualification of officer becomes known or before whom it could be discovered is to be taken with reasonable diligence Not waived by failure to Objection to make them before or the during the taking of competency of deposition a witness or Unless the ground of the competency or objection is one which relevancy or might have been obviated materiality of or removed if presented at testimony that time In the manner of taking, in Occurring at the form of questions or oral answers, in the oath or examination affirmation, or in conduct and other of parties and errors of particulars any kind which might be
Exception: Depositions may be used as evidence under the circumstances in Sec. 4. Effect of Using Deposition [Rule 23, Sec. 8] General Rule: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness. Exceptions: (1) The deposition is that of an opposing party, or (2) The deposition is used to impeach or contradict opponent.
III. OBJECTIONS TO ADMISSIBILITY Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. [Rule 23, Sec. 6]
IV. TERMINATION OF TAKING OF DEPOSITION OR LIMITATION OF SCOPE How done (1) A motion or petition for termination or limit examination is filed by any party or of the deponent (2) Filed in the court where the action is pending OR the RTC of the place where deposition is being taken 82
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Objections to the form of written interrogatories under Sec. 25 and 26
In the manner in which testimony is transcribed or in the preparation under Sec. 17, 19, 20, and 26
CIVIL PROCEDURE obviated or removed if promptly prosecuted are waived Unless reasonable objection thereto is made at the time of taking the deposition Waived Unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of last interrogatories authorized Waived Unless motion to suppress depositions or some part thereof is made with reasonable promptness after such defect is ascertained, or with due diligence might have been ascertained
REMEDIAL LAW
enclosed in sealed envelopes to be opened as directed by the court;
V. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [Rule 24] Referred to as perpetuation of testimony (“depositions in perpetuam rei memoriam”) because their objective is to perpetuate the testimony of a witness for future use, in the event of further proceedings in said court. Who may avail: Any person: (1) Who wants to perpetuate his own testimony; or (2) Who wants to perpetuate the testimony of another person Procedure for Deposition before Action (1) File a verified petition in the court of the place of the residence of any expected adverse party, entitled in the name of the petitioner and stating: (a) That the petitioner expects to be a party to an action in a court of the Philippines but is unable to bring it or cause it to be brought; (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, and (f) Asking for an order authorizing the taking of the depositions of the persons sought to be examined named in the
Orders of the court regarding deposition taking (1) That the deposition shall not be taken; (2) That it may be taken at some designated place other than that stated in the notice; (3) That it may be taken only on written interrogatories; (4) That certain matters shall not be inquired into’ (5) That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; (6) That after being sealed, the deposition shall be opened only by order of the court; (7) That secret processes, developments, or research need not be disclosed; (8) That the parties shall simultaneously file specified documents or information
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petition for the purpose of perpetuating their testimony. (2) Notice and service to 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. (a) At least 20 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.
as if the action was pending therein. The motion shall state: (a) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and (b) The reason for perpetuating their testimony. (3) Order allowing the deposition: 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 deposition to be taken.
(3) Order and Examination: 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.
O.2. WRITTEN INTERROGATORIES OF ADVERSE PARTIES [RULE 25] [Rule 25] Purpose: This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25, Sec. 1] Scope and Use: Interrogatories have the may relate to the same matter as may be inquired into under Depositions Pending Action and may also be used for the same purposes provided. [Rule 24, Sec. 5]
Use of Deposition If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. [Rule 24, Sec. 6]
Written Interrogatories v. Interrogatories to Parties Interrogatories to Written Interrogatories Parties Taken before a No deposition officer. deposition officer Questions are prepared beforehand, The questioning is and submitted to the direct. deposition officer who will ask the deponent The deposition of any Interrogatories are person may be taken, served on parties to whether he is a party the action or not.
Procedure for Deposition Pending Appeal: (1) During the pendency of an appeal, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court. (2) 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
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I. SERVICE OF INTERROGATORIES TO PARTIES
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Grounds (1) The interrogatories require: (a) statements of conclusions of law; (b) answers to hypothetical questions or opinion; (c) mere hearsay; or (d) matters not within the personal knowledge of the interrogated party (2) Frivolous interrogatories need not be answered. [Herrera]
Any party desiring to elicit material and relevant facts from any adverse party shall file and serve upon the adverse party written interrogatories to be answered by the party served. Manner of Service (1) Without leave of court – After answer has been served; and for the first set of interrogatories (2) With leave of court – before the answer has been served; and for subsequent sets of interrogatories Note: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. [Rule 25, Sec. 4]
IV. CONSEQUENCES OF FAILURE TO ANSWER On failure to answer of a party served with interrogatories, the court, on motion and notice, may: (1) strike out all or any part of any pleading of that party; (2) dismiss the action; (3) render judgment by default against the party; and (4) order payment by such party of reasonable expenses including attorney’s fees. [Rule 29, Sec. 5]
II. ANSWERS Written interrogatories and the answers thereto must both be filed and served. [Rule 25, Sec. 2] Hence, the answers may constitute as judicial admissions [Rule 129, Sec. 4]
V. EFFECT OF FAILURE TO SERVE
Form: The answer must be fully in writing, signed and sworn to by the person making them.
A party not served with written interrogatories may not be compelled by adverse party to: (1) Give testimony in open court; or (2) Give deposition pending appeal [Rule 25, Sec. 6]
Service and Filing Shall be filed and served on the party submitting interrogatories within 15 days after service of interrogatories, unless the court extends or shortens period on motion and for good cause.
Exception: Allowed by the court for good cause shown and to prevent a failure of justice
O.3. REQUEST FOR ADMISSION III. OBJECTIONS TO INTERROGATORIES
[Rule 26] Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification in order to determine the truth of the allegation in a pleading.
Objections may be presented to the court within 10 days after service of the interrogatories, with notice as in case of a motion. [Rule 25, Sec. 3] Effect: Answers shall be deferred until objections are resolved 85
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Purposes: (1) To allow one party to request the adverse in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. (2) To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the 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 [Rule 26, Sec. 1]
Period: Such party must file and serve such statement: (1) Within a period not less than 15 days designated in the request; or (2) Within such further time as the court may allow on motion
How made: (1) A party files and serves upon any other party a written request (2) Copies of the documents shall be served with the request unless already furnished
The proponent may apply to the proper court for an order to compel an answer. [Rule 29, Sec. 1]
Objections shall be submitted to the court by the party requested within the period for and prior to filing of his sworn statement. Compliance with the sworn statement shall be deferred until objections are resolved. [Rule 26, Sec. 2]
II. CONSEQUENCES FOR FAILURE TO ANSWER REQUEST
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, the refusal to answer was without substantial justification.
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, (2002)] When made: At any time after issues have been joined, which is to say,
If application is denied and it was filed without substantial justification, the court may require the refusing party or counsel to pay reasonable expenses for opposing the application.
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 [Rule 26, Sec. 2]
Refusal to answer after being directed by the court would constitute contempt of court. Refusal to obey would also allow the court to make such orders regarding the refusal as are just, such as: (1) that the matters regarding which questions were asked be taken as established for the purposes of the action in accordance with the claim of the party obtaining the order;
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 86
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I. PROCEDURE
(2) that the disobedient party be disallowed from supporting or opposing designated claims or defenses; (3) that pleadings or parts thereof be stricken out; or that further proceedings be stayed until compliance; or that actions or any parts thereof be dismissed or that judgment be rendered by default against the disobedient party; or (4) that that the disobedient party be arrested. [Rule 29, Sec. 3]
[Rule 27, Sec. 1] A motion is filed by the party seeking production or inspection, showing good cause therefor. The court may issue an order: (1) for the party to produce and permit inspection, copying or photographing, by or on behalf of the moving party, of any designated documents or tangible things, (a) not privileged, (b) constituting or containing material evidence, and (c) in the party’s in his possession, custody or control (2) for the party to permit entry upon designated land or other property, in his possession or control, for inspection, measuring, surveying, or photographing property or any designated relevant object or operation.
III. EFFECT OF ADMISSION Any admission made by a party pursuant to such request is for the purpose of the pending action only [Rule 26, Sec. 3] It shall not: (1) Constitute an admission by him for any other purpose; nor (2) Be used against him in any other proceeding
iv. Effect of Failure to File and Serve Request for Admission
The order shall state: (1) The time, place, and manner of making the inspection and taking copies and photographs, and (2) Such terms and conditions as are just
Applicability: The party fails to file and serve a request for admission on the adverse party for facts at issue, which are: [1] material and relevant fact at issue, and [2] are, or ought to be, within the personal knowledge of the adverse party
II. PRODUCTION OF DOCUMENTS V. SUBPOENA DUCES TECUM Production or Inspection of Documents
Effect: The party shall not be permitted to present evidence on such facts, unless allowed by the court for good cause and to prevent a failure of justice [Rule 29, Sec. 5]
Subpoena Duces Tecum
A means of compelling A mode of discovery production of evidence Limited to the parties May be directed to of the action non-party Issued upon motion May be issued upon ex with notice to the parte application adverse party May be asked before May be asked only and/or during trial during trial
O.4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [Rule 27] Applicable only to a pending action and the things subject of the motion must be within the possession, control, or custody of a party.
87
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show
good Need not show good cause Grounds for quashal: (1) Unreasonable, May be quashed for oppressive, lack of good cause irrelevant shown (2) Failure to advance reasonable costs of production Disobedience would allow court to issue Disobedience orders as in the case constitutes contempt of refusal to answer of court request for admission
O.5. PHYSICAL OR EXAMINATION OF PERSONS
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a like report of any examination, previously or thereafter made, of the same mental or physical condition. If such report is not delivered (a) due to refusal of the party examined, the court may make an order requiring delivery on such terms as are just; (b) due to failure or refusal of the physician, the court may exclude his testimony when offered at trial.
III. WAIVER OF PRIVILEGE [Rule 28, Sec. 4] Where the party examined requests and obtains a report on the results of the examination, the consequences are: (1) He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition; and (2) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him
MENTAL
[Rule 28] Applicable in an action in which the mental or physical condition of a party is in controversy. [Rule 28, Sec. 1]
I. PROCEDURE [Rule 28, Sec. 2] A motion for the examination is filed in the court where the action is pending: (1) showing good cause for the examination; (2) with notice to the party to be examined, and all other parties; and (3) specifying the time, place, manner, conditions, scope, and person conducting the examination.
O.6. CONSEQUENCES OF REFUSAL TO COMPLY [Rule 29] Form of Refusal
Sanctions
The court may, upon proper application, compel a refusing deponent to answer [Sec. 1] (1) If granted, and refusal to Refusal to answer is without answer any substantial justification, question court may require the [Sec. 1 and 2] refusing party to pay proponent the reasonable expenses incurred in obtaining the order (2) If denied, and filed
Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege [Rule 130, Sec. 24(b)]
II. REPORT OF FINDINGS [Rule 28, Sec. 3] The party examined may request delivery of a copy of the detailed written report, with the findings of the examining physician. Upon such request and delivery, the party causing the examination is entitled upon request to receive 88
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Form of Sanctions Refusal admit under application, issue an order Rule 26 requiring the other party to [Sec. 4] pay him reasonable expenses incurred, including attorney’s fees PROVIDED that party requesting proves genuineness of such document or truth UNLESS court finds: (1) There were good reasons for denial (2) Admissions sought were of no importance The court on motion and notice may: (1) Strike out all or any part of any pleading of Failure of disobedient party party to (2) Dismiss the action or attend or proceeding or any part serve answers thereof to written (3) Enter a judgment by interrogatories default against [Sec. 5] disobedient party (4) Order payment of reasonable expenses incurred by the other including attorney’s fees
Sanctions without substantial justification, court may require proponent to pay refusing party the reasonable expenses incurred in obtaining the order
Refusal to be Sworn [Sec. 2]
Refusal to answer designated questions or refusal to produce documents or to submit to physical or mental examination [Sec. 3]
Refusal
to
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A refusal to answer after being directed by court to do so may be constituted as contempt of court Cite the disobedient deponent in contempt of court The court may make the following orders: (1) Prohibit the disobedient party to introduce evidence of physical or mental condition (2) Refuse to allow the disobedient party to support or oppose claims or defenses (3) Strike out pleadings or parts thereof (4) Stay further proceedings (5) Dismiss the action or proceeding or any part thereof (6) Render a judgment by default against disobedient party (7) Direct the arrest of any party disobeying any of such orders except an order to submit to a physical or mental examination (8) Other orders as may be just The court, upon proper
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. [Rule 29, Sec. 6]
P. TRIAL Trial – is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People [1962]]. A hearing is a broader term. It is not confined to the trial and presentation of the evidence 89
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I. ADJOURNMENTS POSTPONEMENTS
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 [1973]]
AND
A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require
General rule: When an issue exists, trial is necessary. Decision should not be made without trial.
Limitations The court has no power to adjourn a trial for: (1) A period longer than one month for each adjournment; or (2) More than 3 months in all
Exceptions 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] (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 [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5] (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. [Rule 30, Sec. 6] [Riano]
Exception: The court may go beyond these limitations, if authorized in writing by the Court Administrator. Postponement A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier. A party asking for postponement has no absolute right to expect that his motion would be granted. [Republic v. Sandiganbayan] Requisites of Motion to Postpone Trial (1) For absence of evidence [Rule 30, Sec. 3] – Motion accompanied by affidavit showing: (a) That the materiality or relevancy of the evidence; and (b) That diligent efforts had been exerted to procure the evidence (2) For illness of party or counsel [Rule 30, Sec. 4] -- Motion accompanied by affidavit or sworn certification showing: (a) The presence of such party or counsel at the trial is indispensable; and (b) That the character of his illness is such as to render his non-attendance excusable
Notice of Trial Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date. [Rule 30, Sec. 1]
II. AGREED STATEMENT OF FACTS The parties may agree, in writing, upon the facts involved in the litigation and submit the
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case for judgment in the facts agreed upon, without the introduction of evidence
(6) Parties may then respectively adduce rebutting evidence only, unless the court permits them to adduce evidence upon original case (7) Upon admission of evidence, case submitted for decision, unless court directs parties to argue or to submit respective memoranda or any further pleading [Rule 30, Sec. 5]
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. [Rule 30, Sec. 6] Stipulation in Civil Cases May be signed alone by the counsel, who has an SPA May be made verbally or in writing
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Stipulation in Criminal Cases Must be signed by both counsel and accused Strict; it must always be in writing
Reverse Order The defendant presents evidence ahead of the plaintiff, when the defendant relies in his Answer only upon an affirmative defense. 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]
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]
The reasoning behind this is that the plaintiff need not present evidence since judicial admissions do not require proof [Sec. 2, Rule 129]
III. ORDER OF TRIAL Trial shall be limited to the issues stated in the pre-trial order, except in the following cases: (1) the court orders separate trial under Rule 31, Sec. 2, in the furtherance of convenience or to avoid prejudice; or (2) when for special reasons the court directs otherwise
IV. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Consolidation – a procedural device, gratned to the court as an aid in deciding how case 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 (2013)]
General Order of Trial (1) Plaintiff’s evidence in chief (2) Defendant’s evidence in chief and evidence in support of his counterclaim, cross-claim and 3rd-party complaint (3) 3rd-party defendant shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party complaint (4) 4th-party defendant shall adduce evidence, and so forth (5) 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
When proper: When actions involving a common question of fact or law are pending before the court [Rule 31, Sec. 1] Court action: The court may: (1) Order a joint hearing or trial of any or all matters in issue in the actions (2) Order all actions consolidated; or
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(3) Make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay
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Severance – definition When proper: A single action has a number of claims, counterclaims, cross-claims, thirdparty complaints or issues which may be separately tried for convenience, or to avoid prejudice.
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
When 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]
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 (1992)]
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
It has been held that 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]
V. 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. [Rule 30, Sec. 9] Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: 1. Default hearings; 2. Ex parte hearings; 3. Cases where parties agree in writing.
Kinds of Consolidation [Republic v. Heirs of Oribello (2013)] (1) 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 (2) Actual consolidation – where several actions are combined into one, lose their separate identity, and become one single action in which judgment is rendered (3) 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
The clerk of court has no power to rule on objections to any question or the admission of exhibits. Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing. The rule requires that, where the reception of evidence is delegated to the clerk of court, he must also be a member of the bar. Neither
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agreement by parties nor their acquiescence can justify its violation. [Umali-Paco v. Quilala]
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in any stage, or for carrying a judgment into effect [Rule 32, Sec. 2]
VI. TRIAL BY COMMISSIONERS
Order of Reference: [Rule 32, Sec. 3] 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 (3) the date for beginning and closing the hearings, and that for the filing of his report
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 General rule: Trial by commissioner depends largely upon the discretion of the court Exception: In the following instances, appointment of a commissioner is necessary: (1) Expropriation [Rule 67] (2) Partition [Rule 69] (3) Settlement of Estate of a Deceased Person in case of contested claims; and (4) Submission of Accounting by executors or administrators
Powers of Commissioner (1) Exercise power to regulate the proceeding before him (2) Do all acts and take all measures necessary or proper for the efficient performance of his duties (3) Issue subpoena and subpoenas duces tecum (4) Swear witnesses (5) Rule upon the admissibility of evidence, unless otherwise provided in the order of reference
Kinds of Trial by Commissioners (1) Reference by consent of both parties. (2) Reference ordered on motion when: 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. [Rule 32, Sec. 1] Commissioners are to be: (1) Agreed upon by the parties; or (2) Appointed by the court
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. [Rule 32, Sec. 7]
Reference Ordered on Motion The court may direct reference to a commissioner, upon application of a party or upon its own motion, in the ff. cases: (1) When trial of an issue of fact requires examination of long account; (2) When taking of an account is necessary; (3) When question of fact, other than upon pleadings, arises upon motion or otherwise,
Proceedings before the Commissioner [Rule 32, Sec. 5] (1) Upon receipt of the order of reference, the commissioner shall set a time and place for the first meeting of parties or their counsel (2) Notices shall be sent to parties or counsel (3) Hearing is to be held within 10 days after date of order of reference
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(4) If a party fails to appear, the commissioner may: [Sec. 6] (a) Proceed ex parte; or (b) Adjourn the proceedings to a future date giving notice to the absent party or his counsel
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(3) Requiring the parties to present further evidence before the commissioner or the court
Q. DEMURRER TO EVIDENCE A species of motion to dismiss that may be invoked based on insufficiency of evidence [i.e. upon the facts and the law the plaintiff has shown no right to relief]. [Rule 33, Sec. 1]
Report of the Commissioner [Rule 32, Sec. 9] The report is filed with the court upon completion of the trial, hearing or proceeding before the commissioner.
It is invoked after the plaintiff has presented all the evidence available to him
Contents: (1) Report in writing upon the matters submitted to him by the order of reference (2) When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law (3) He shall attach all exhibits, affidavits, depositions, papers, and transcripts, if any, of testimonial evidence presented before him
Judgment on Demurrer to Evidence –judgment rendered by the court dismissing a case upon motion of defendant, made after plaintiff has rested his case, on the ground that upon the facts presented and the law on the matter, plaintiff has not shown any right to relief. Demurrer of Evidence v. Motion to Dismiss Demurrer to Evidence Motion to Dismiss Presented after the Presented before plaintiff has rested his filing of a responsive case pleading Based on the Based on those insufficiency of grounds enumerated evidence in Rule 16 If denied, the If denied, the defendant may defendant may file his present his evidence responsive pleading If granted, the If granted, the complaint is complaint is dismissed; plaintiff dismissed; plaintiff’s may appeal or re-file, remedy is to appeal depending on the ground for dismissal.
Notice and Hearing on the Report [Rule 32, Secs 10-11] Upon filing of the report of the commissioner: (1) Parties shall be notified by the clerk (2) Parties shall be allowed 10 days within which to object to the findings of the report Note: Objections based upon grounds which were available to the parties during the proceedings before the commissioner shall not be considered by the court, unless they were made before the commissioner Upon 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 (2) Recommitting it with instructions; or
Q.1. EFFECT OF DENIAL If the demurrer is denied, the plaintiff shall have the right to present his evidence. The court should not proceed to grant the relief demanded by the plaintiff but should set the 94
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date for reception of the defendant’s evidence. [Northwest Airlines v. CA (1998)]
Civil Cases Criminal Cases demurrer, defendant demurrer will present his (1) filed with leave, evidence accused may present evidence. (2) filed without leave, accused can no longer present evidence. If prosecution’s If plaintiff’s evidence evidence insufficient, insufficient, court will court will grant grant demurrer by demurrer by dismissing the rendering judgment complaint of acquittal. The judgment of dismissal is Judgment of acquittal appealable; If is not appealable; reversed, court will Double jeopardy sets decide based on in. plaintiff’s evidence.
An order denying the demurrer is interlocutory, and not subject to appeal. It can be subject to a petition for certiorari, in case of grave abuse of discretion or oppressive exercise of judicial authority. [Katigbak v. Sandiganbayan]
Q.2. EFFECT OF GRANT If the demurrer is granted, the case shall be dismissed. As a final order, the remedy of the plaintiff is to appeal. If the appeal is granted, the defendant-movant loses the right to present evidence. 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.]
IV. Judgments and Final Orders
Q.3. WAIVER OF RIGHT TO PRESENT EVIDENCE
A. JUDGMENTS IN GENERAL
If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera (2007)]
The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties, or other matters submitted to it in an action or proceeding [Macahilig v. Heirs of Magalit (2000)]
Q.4. DEMURRER IN CIVIL AND CRIMINAL CASES Civil Cases Defendant files demurrer.
a
Court cannot motu propio dismiss the case for insufficiency of plaintiff’s evidence Defendant need not ask for leave of court If court denies the
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A.1. REQUISITES OF A VALID JUDGMENT
Criminal Cases Court may motu proprio dismiss the action for insufficiency of prosecution’s evidence, after it has rested its case. [Rule 119, Sec. 23] May be filed with or without leave of court. If court denies the
[Riano] (1) Court or tribunal must be clothed with authority to hear and determine the matter before it. [Acosta v. COMELEC (1998)] (2) Court must have jurisdiction over the parties and the subject matter. (3) Parties must have been given an opportunity to adduce evidence in their behalf. [Acosta v. COMELEC (1998)]
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(4) Evidence must have been considered by the tribunal in deciding the case. [Acosta v. COMELEC (1998)] (5) Judgment must be in writing, personally and directly prepared by the judge. A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan (2004)] (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. [Rule 36, Sec. 1; Ar. VIII, Sec. 14, 1987 Constitution]
(4)
(5)
(6)
A.2. KINDS OF JUDGMENT (1) Judgment on Compromise – one conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of fraud, accident, mistake, or excusable negligence. (2) Judgment upon Confession – one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. (a) Judgment by cognovit actionem – after service [of what?], the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful. (b) Judgment by confession relicta verification – after pleading and before trial, the defendant: (i) confessed the plaintiff’s cause of action; and (ii) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. (3) Judgment upon the merits – one rendered after consideration of the evidence submitted by the parties during the trial of the case.
(7)
(8)
(9)
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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 Clarificatory Judgment – one rendered to clarify an ambiguous judgment or one difficult to comply with. 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 (1923)] Judgment sin perjuicio – refers to a dismissal of a case without prejudice to it being re-filed 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. (1940)] Several Judgment – one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. [Rule 36, Sec. 4] Proper when the liability of each party is clearly separate and distinct from his coparties such that: (a) the claims against each of them could have been the subject of separate suits, and (b) the judgment for or against one of them will not necessarily affect the other. Separate Judgment – one rendered disposing 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. [Rule 36, Sec. 5] Proper when more than one claim for relief is presented in an action for the
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determination as to the issues material to the claim has been made. (10) Memorandum Decision – a decision of the appellate court which adopts the findings and conclusions of the trial court.
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It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively [Light Rail Transit Authority v. CA [2004]] (3) Signature of the judge
A.3. JUDGMENT WITHOUT TRIAL Trial is not necessary in the following instances: (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 [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)] (5) Under the Rules on Summary Procedure (6) Agreed statement of facts [Rule 30, Sec. 6]
B.3. DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE COURT The judgment or fallo must be distinguished from the Opinion. The Opinion is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its judgment.
Note: Also enumerated in Part III.P. (Trial)
B. CONTENTS OF A JUDGMENT B.1. FORM OF JUDGMENT [Rule 36, Sec. 1] (1) In writing (2) Personally and directly prepared by the judge (3) Stating clearly & distinctly the facts and the law on which it is based (4) Signed by the judged (5) Filed with the clerk of 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. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan v. Salcedo (1969)]
B.2. PARTS OF A JUDGMENT
B.4. CONFLICT BETWEEN DISPOSITION AND OPINION OF THE COURT
[Riano, Herrera] (1) Opinion of the Court Also called the body, or the ratio decidendi Contains the findings of facts and conclusions of law (2) Disposition of the case Also called the dispositive portion, or the fallo
General Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls. Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company (2005)]
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Exception: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation (2008)]
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Judgment on the Pleadings is not proper in the ff. cases: (1) Declaration of Nullity of Marriage (2) Annulment of marriage; and (3) Legal Separation (4) Unliquidated damages; claims for such damages must be alleged and proved (5) Admission refers only to allegations of fact and not conclusions of law (6) Insufficiency of facts; proper remedy is amendment
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. [So v. Food Fest Land]
C. JUDGMENT ON THE PLEADINGS Judgment on the Pleadings is a judgment rendered by the court if the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading. It is rendered without a trial, or even without a pre-trial
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. [Riano]
A motion for a Judgment on the Pleadings, where the answer admits the material averments of the complaint, is one that may be considered ex parte because upon the particular facts thus presented and laid down before the court, the plaintiff is entitled to a judgment [Dino v. Valencia (1989)]
When no answer is filed, the remedy is to move that the defendant be declared in default. [Rule 9, Sec. 3]
D. SUMMARY JUDGMENTS
GROUNDS FOR JUDGMENT ON THE PLEADINGS
A judgment which the 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 such documents, should the court find, after summarily hearing both parties with their respective proofs, that there exists no genuine issue between them. [Herrera]
[Rule 34, Sec. 1] (1) The answer fails to tender an issue because of: (a) General denial of the material allegations of the complaint; (b) Insufficient denial of the material allegations of the complaint; or (2) The answer otherwise admits material allegations of the adverse party’s pleading
The trial court cannot motu propio decide that summary judgment on an action is in order. The defending party or claimant, as the case may be, must invoke the rule by filing a motion. The adverse party must then be notified of the motion and furnished with supporting documents before hearing is conducted. [Pineda v. Heirs of Eliseo Guevara (2013)]
A Judgment on the Pleadings cannot be rendered by the court motu propio. It can only be done where there is a prior motion to that effect by the appropriate party. [Riano; see Luzon Development Bank v. Conquilla]
Proper when it appears to the court that: 98
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(1) there exists no genuine issue as to any material fact, except as to the amount of damages; and (2) the party presenting the motion must be entitled to judgment as a matter of law
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(5) Court renders summary judgment Note: Damages must still be proven even if not denied. Bases for Summary Judgment (1) Affidavits made on personal knowledge; (2) Depositions of the adverse or a 3rd party [Rule 23] (3) Answers to interrogatorie [Rule 25] (4) Admissions of the adverse party [Rule 26]
Genuine Issue - an issue of fact which calls for the presentation of evidence as distinguished from a sham, fictitious, contrived, or false claim. [Philippine Bank of Communications v. Go [year]] The test is 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. Consolocion (1976)]
D.1 WHEN THE CASE IS 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 [Rule 35, Sec. 4] (1) Ascertain which material facts exist without substantial controversy, and which are actually and in good faith controverted, by: (a) Examining the pleadings and evidence before it; and (b) Interrogating counsel (2) Make an order, which: (a) specifies the facts without substantial controversy and deemed established, including extent of damages (b) directs further proceedings as are just (3) Conduct trial on the controverted facts
When Filed (1) If sought by the claimant – only after the answer is served; [Rule 35, Sec. 1] (2) If sought by the defendant – at any time [Rule 35, Sec. 2] Note: Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Procedure [Rule 35, Sec. 3] (1) Movant files a motion for summary judgment with supporting affidavits, depositions or admission (2) Service to the adverse party at least 10 days the hearing (3) Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing (4) Hearing – Court shall determine if a genuine issue as to any material fact exists, and if the movant is entitled to a summary judgment as a matter of law
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([1983)]
D.2 AFFIDAVITS AND ATTACHMENTS Form [Rule 35, Sec. 5] (1) Made on personal knowledge (2) Setting forth such facts as would be admissible in evidence 99
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(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.
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Effect: The court: (1) shall order the offending party or counsel to pay the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur; and (2) may, after hearing, adjudge the offending party or counsel guilty of contempt [Rule 35, Sec. 6]
Affidavits in bad faith – those presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay
SUMMARY JUDGMENT V. JUDGMENT ON THE PLEADINGS V. JUDGMENT BY DEFAULT SUMMARY JUDGMENT ON JUDGMENT THE PLEADINGS Based on the pleadings, depositions, admissions, and Based solely on the pleadings affidavits Generally available only to the Available to both plaintiff and plaintiff, unless the defendant defendant presents a counterclaim There is no genuine issue The answer fails to tender an between the parties issue or there is an admission of i.e. There may be issues but material allegations these are irrelevant 10-day notice required 3-day notice required May be interlocutory or on the On the merits merits Available only in actions to Available in any action except recover a debt, or for a annulment of marriage, or legal liquidated sum of money or for separation cases declaratory relief If sought by plaintiff, it must be filed at any time after an answer is served. There is already an answer filed If sought by defendant, may be filed at any time even before there is answer
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JUDGMENT BY DEFAULT Based on the complaint and evidence, if presentation is required Available to plaintiff
No issue as no answer is filed by the defending party 3-day notice rule applies On the merits Available in any action except annulment of marriage, or legal separation cases
There is no answer filed
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to gross inefficiency o the part of the judge. [Arap v Mustafa (2002)]
E. RENDITION OF JUDGMENTS AND FINAL ORDERS
F. ENTRY OF JUDGMENT AND FINAL ORDER
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 clerk of court 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 clerk of court. [Ago v. CA]
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. [Riano] 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 [Rule 36, Sec. 2]
This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. [Herrera]
Contents of Record in the Book of Entries (1) Dispositive part of the judgment or final order (2) Signature of the clerk; and (3) Certification that such judgment or final order has become final and executory.
Promulgation refers to the process by which a decision is published, officially announced, made known to the public, or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel Period for Rendition [Art. VIII, Sec. 15, 1987 Constitution] (1) All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision. (2) Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts.
Note: The date of finality is deemed the date of entry. A judgment becomes final and executory when the period for appeal has elapsed without a party having perfected an appeal, or if there has been an appeal, it has been resolved by the highest tribunal. This is the date of entry of judgment even if the physical act of entering the judgment in the book of entries is done later. [Riano]
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.
G. AMENDMENTS TO JUDGMENT General Rule: Once a judgment becomes final and executory, such judgment can no longer be disturbed, altered, or modified
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
Under the Doctrine of Immutability of Judgments, a judgment that has attained 101
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V. Post-Judgment Remedies
finality can no longer be disturbed. The reason of two-fold: (1) to avoid delay in the administration of justice, and to make orderly the discharge of judicial business; and (2) to put an end to judicial controversies at the expense of occasional errors. [Riano]
Remedies before Finality of Judgment (1) Motion for reconsideration [Rule 37] (2) Motion for new trial [Rule 37] (3) Appeal [Rules 40-45]
Exceptions: (1) Correction of clerical errors [Filipinas Palmoil Processing, Inc. v. Dejapa] (2) Nunc Pro Tunc entries [Filipinas Palmoil Processing, Inc. v. Dejapa] (3) Whenever circumstances transpire after finality of the decision, rendering its execution unjust and inequitable. [Apo Fruits Corp. v. Land Bank of the Phils.] (4) In cases of special and exceptional nature, when it is necessary in the interest of justice to direct modification in order to harmonize the disposition with the prevailing circumstances [Industrial Timber Corp. v. Ababon] (5) In case of void judgments [Panlilio v. Garcia] (6) Where there is a strong showing that a grave injustice would result from an application of the Rules [Almuete v. People] (7) When there are grounds for annulment of judgment or petition for relief [Gochan v. Mancao] Amended/clarified judgment An entirely new decision and supersedes the original judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues
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A. MOTION FOR NEW TRIAL OR RECONSIDERATION Note: The motion for reconsideration under Rule 37 is directed against a judgment or final order. It does not refer to one for interlocutory orders, which often precedes a petition for certiorari under Rule 65. These motions are prohibited in cases that fall under the Rule on Summary Procedure and those falling under the Rule of Procedure for Small Claims.
A.1. GROUNDS I. GROUNDS FOR MOTION FOR NEW TRIAL [Rule 37, Sec. 1] (1) Fraud, accident, mistake, excusable negligence (FAME) – subject to the following conditions: (a) Which ordinary prudence could not have guarded against; and (b) By reason of which such aggrieved party has probably been impaired in his rights
Supplemental decision Does not take the place of or extinguish the original judgment
Note: Fraud must be extrinsic fraud which is any fraudulent scheme executed outside of the trial by the prevailing party against the losing party, who because of such fraud is prevented from presenting his side of the case.
Serves to add to the original judgment
(2) Newly discovered evidence – subject to the following requisites:
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A.3. FORM AND CONTENTS I. FORM
(a) It must have been discovered after the trial (b) It could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) It must be material and not merely collateral, cumulative, or corroborative; and (d) The evidence is of such weight that if admitted, would probably alter the result of the action; and
II. GROUNDS FOR RECONSIDERATION
MOTION
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[Rule 37, Sec. 2] (1) The motion must comply with the provisions of Rule 15 otherwise it will not be accepted for filing and/or will not suspend the running of the reglementary period. (2) It shall be made in writing, stating the ground or grounds therefor (3) Written notice shall be served by movant on the adverse party
FOR
Non-compliance with the formal requirements would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal.
[Rule 37, Sec. 1] (1) Damages awarded are excessive (2) Evidence is insufficient to justify the decision or final order (3) The decision or final order is contrary to law
II. CONTENTS OF A MOTION FOR NEW TRIAL [Rule 37, Sec. 2] (1) If based on FAME, it shall be supported by an affidavit of merits , which: (a) recites the nature and character of FAME on which the motion is based (b) states the movant’s good and substantial cause of action or defense; and (c) states the evidence he intends to present if granted.
A.2. WHEN TO FILE [Riano] An aggrieved party may file a motion for new trial or reconsideration within the period for taking an appeal. The period depends on whether the appeal is by mere notice of appeal or by record on appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals.
(2) If based on newly found evidence, it shall be supported by: (a) Affidavits of witnesses by whom such evidence is expected or given; or (b) Duly authenticated documents which are proposed to be introduced in evidence
Where an appeal is one by notice of appeal, the period for appeal is 15 days. Where a record on appeal is required, the period is 30 days. The periods commence upon receipt of notice of the decision or final order appealed from by the counsel of record, which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment.
III. CONTENTS OF A MOTION FOR RECONSIDERATION [Rule 37, Sec. 2] (1) Shall point out specifically the findings or conclusions of the judgment or final order which are not supported by evidence or which are contrary to law; and 103
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(2) Make express reference to testimonial or documentary evidence or provisions of law alleged to be contrary to such findings or conclusions
Grant of motion for reconsideration The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment.
Single-Motion Rule [Rule 37, Sec. 5] A party shall not be allowed to file a 2nd motion for reconsideration.
Grant of motion for new trial The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them, if they are material and competent.
While a 2nd motion for reconsideration is not allowed, a second motion for new trial is authorized, subject to the following conditions: (1) it must be based on a ground not existing or available when the 1st motion was made; and (2) it must be made within the period allowed but excluding the time during which the first motion had been pending.
Partial grant 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. [Rule 37, Sec. 7]
A.4 RESOLUTION AND COURT ACTION II. DENIAL OF MOTION
Court action [Rule 37, Sec. 3] The court may: (1) Set aside the judgment or final order and grant a new trial; or upon such terms as may be just (2) Deny the motion (3) Amend such judgment or final order accordingly if: (a) The court finds that excessive damages have been awarded or that; or (b) That the judgment or final order is contrary to the evidence or law
Effect: The judgment or final order shall stand as is. Fresh 15-Day Rule: The aggrieved party has a “fresh period” of 15 days within which to file his appeal. If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal. [Neypes v. CA [2005]]
Resolution: The motion shall be resolved within 30 days from submission. [Rule 37, Sec. 4]
Note: (1) This fresh period becomes significant only when a party opts to file a motion for new trial or reconsideration (2) This rule does not refer to the period within which to appeal from the order denying the motion for reconsideration but to the period within which to appeal from the judgment itself.
The 30-day period to resolve the motion is held to be mandatory. [Gonzales v. Bantolo (2006)]
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Remedies if Motion is Denied (1) To appeal from the judgment or final order itself (2) The order denying the motion may itself be assailed by a petition for certiorari under Rule 65
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or final order is contrary to the evidence or law Available even on Available against the appeal but only on the judgments or final ground of newly orders or both the trial discovered evidence and appellate courts Both are prohibited motions under Summary Procedure
Note: Rule 37, Sec. 9 says that an order denying a motion for new trial or reconsideration is not appealable. However, A.M. No. 07-7-12, effective December 27, 2007, amended Rule 41, Sec. 1 by deleting “An order denying a motion for new trial or reconsideration” from the nonappealable orders.
B. APPEALS Nature (1) Not a natural right nor a part of due process (2) It is merely a statutory right, and may be exercised only in the manner and in accordance with provisions of the law. It must comply with the requirements; failing to do so, the right to appeal is lost (3) Once granted, appeals become part of due process and should be liberally applied in favor of the right to appeal
Motion for Reconsideration Grounds: Grounds: (1) Fraud, accident, (1) Damages awarded mistake, or are excessive excusable (2) That evidence is negligence insufficient to (2) Newly discovered justify the decision evidence or final order (3) That decision or final order is contrary to law Second motion from the same party is prohibited. May be allowed so long as based on Prohibition applies grounds not existing only to motions for or available at the reconsideration of time the first motion final orders or was made judgments; allowed for interlocutory orders The court may amend If granted, original the judgment or final judgment or final order, it finds: order is vacated, and (1) that excessive the case stands for damages have trial de novo. been awarded; or (2) that the judgment Motion for New Trial
B.1. JUDGMENTS AND FINALS ORDERS SUBJECT TO APPEAL; MATTERS NOT APPEALABLE [Rule 41, Sec. 1, as amended by A.M. No. 07-7-12SC] (1) 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 Rules to be appealable (2) No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) 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; (e) An order of execution; 105
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(f) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, crossclaims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice.
Remedy against Matters 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. [Rule 41, Sec. 1]
B.2. 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) Petition for review on certiorari – Rule 45
Note: A.M. No. 07-7-12-SC removed from the original list “an order denying a motion for new trial or reconsideration.” However, Rule 37, Sec. 9 states that no appeal can be made from an order denying MR or MNT.
B.3. ISSUES TO BE RAISED ON APPEAL Limited to cognizable judgments/issues.
Only final judgments or orders can be appealed as distinguished from interlocutory judgments or orders which are not appealable. Final Order Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution Appealable
REMEDIAL LAW
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 (2005)]
Interlocutory Order Does not dispose of a case completely but leaves something more to be decided upon. Not appealable except through a petition for certiorari under Rule 65
Rationale: Appeal is merely a conferred by law upon the litigants.
privilege
A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)] However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)]
Must clearly and No need to comply distinctly state the law with such a and the facts on which requirement it is based An interlocutory order is one that does not finally dispose of the case, and does not end the court's task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done. [BPI v. Lee [2012]]
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MODES OF APPEAL Ordinary Appeal Appeal by writ of error Case is decided by RTC in its original jurisdiction Appealed to the CA File notice of appeal or record of appeal with court of origin and give a copy to adverse party
Petition for Review Rule 42 Case decided by RTC in the exercise of its appellate jurisdiction Petition for review with the CA File a verified petition for review with CA. Pay docket and lawful fees and P500 as deposit for costs with the CA. Furnish RTC and adverse party a copy of such
Petition for Review by Certiorari Rule 45 Case decided by the RTC, CA, CTA, and Sandiganbayan Appealed to the SC File verified petition for review on certiorari with the SC. Pay docket and lawful fees and P500 for costs. Submit proof of service of a copy to the lower court and adverse party
Within 15 days from notice of Within 15 days from notice of Within 15 days from notice of judgment for notice of decision to be reviewed or from judgment or order of denial of appeal and 30 days for denial of a MFR or MFNT MFR or MFNT records on appeal
PERIOD OF APPEAL Period to Appeal
Extensions
Effect of MR or MNT
MTC to RTC By notice of appeal; within 15 days from No extensions allowed notice of judgment or final order
Fresh period to appeal from denial MR or MNT
By record of appeal; within 30 days from notice of judgment or final order RTC to CA By notice of appeal; Within 15 days from notice of judgment No extensions allowed or final order By record of appeal; within 30 days from notice of judgment or final order MTC to RTC to CA The CA may grant a 15 day extension. 15 days from notice of the judgment or No further extension shall be final order OR from denial of MR or granted except for the most MNT compelling reasons and in no case longer than 15 days. QJA to CA 15 days from notice of the award, The CA may grant a 15 day judgment, final order or resolution or extension. No further extension from date of last publication if required shall be granted except for the 107
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Period to Appeal
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Extensions
by law OR from denial of MR or MNT
most compelling reasons and in no case longer than 15 days. RTC to SC; RTC to CA to SC; CA to SC 15 days from notice of judgment or final Fresh period to The SC may grant a 30 day order OR from denial of petitioner’s MR appeal from extension for justifiable reasons. or MNT. denial MR or MNT
B.6 APPEAL FROM MUNICIPAL TRIAL COURTS [RULE 40]
The fresh period rule shall apply to: (1) Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; (2) Rule 41 governing appeals from the Regional Trial Courts to the Court of Appeals (3) Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; (4) Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and (5) Rule 45 governing appeals by certiorari to the Supreme Court.
I. OUTLINE OF PROCEDURE [RULE 40, SEC. 7] Appeal decision of MTC by filing notice of appeal and pay within 15 days from receipt of judgment 15 days from perfection of appeal, MTC clerk transmits record to RTC Notice to parties that an appeal is being taken from the decision of the MTC
The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes v. CA, (2005)]
Within 15 days from notice of appeal: (1) Appellant submits memorandum to the RTC (2) Appellee files his own memorandum 15 days from receipt of appellant’s memorandum Court acts on the appeal
Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)]
If uncontested, judgment is entered in the book of entries
Any party may appeal by filing a petition for review with the CA
II. WHERE TAKEN
B.5 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 (2004)]
It is taken to the RTC exercising jurisdiction over the area to which the MTC pertains. [Rule 40, Sec. 1]
Effect of Failure to Perfect Appeal (1) Defeats a party’s right to appeal. (2) Precludes appellate court from acquiring jurisdiction.
[Rule 40, Sec. 2] (1) If by notice of appeal, within 15 days after notice to appellant of judgment or final order appealed from
III. WHEN TAKEN
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(2) If record of appeal is required, within 30 days from notice of judgment or final order (3) Period of appeal shall be interrupted by a timely motion for new trial or reconsideration
V. PERFECTION OF APPEAL
IV. HOW TAKEN
VI. APPEAL FROM ORDER DISMISSING A CASE WITHOUT TRIAL; LACK OF JURISDICTION
Since appeals from inferior courts may now be either by notice of appeal or record on appeal, the rules on the perfection and the effect thereof are the same. See Sec. 9, Rule 41
[Rule 40, Sec. 3] By Notice of Appeal (1) File a notice of appeal with the trial court that rendered the judgment or final order appealed from (2) The notice of appeal must indicate the parties, the judgment or final order or part thereof appealed from; the material date showing timeliness of appeal (3) A copy served on the adverse party; and (4) Payment in full of docket fees and other lawful fees
Two Scenarios: (1) If the MTC dismissed the case without trial on the merits, the RTC may: (a) Affirm, if the ground of dismissal is lack of jurisdiction over the subject matter; If the RTC has jurisdiction, it shall try the case on the merits as if the case was originally filed therein (b) Reverse, in which case, it shall remand the case for further proceedings
By Record on Appeal (1) Record on appeal is required for the following cases: (a) Special proceedings (b) In such other cases where multiple appeals are allowed (2) Form and contents of the record on appeal: (Rule 41, Sec. 6) (a) Within 15 days from perfection of appeal, clerk of court or the branch clerk of the lower court shall transmit to the RTC: (i) Original record or record on appeal (ii) Together with transcripts and exhibits (b) Clerk shall make a certification that the documents are complete (c) Clerk shall also furnish the parties a copy of his letter of transmittal of the records to the appellate court (3) Copy is served on the adverse party (4) Payment in full of docket fees and other lawful fees
(2) If the case was tried on the merits by the MTC without jurisdiction over the subject matter: (a) The RTC shall not dismiss the case if it has original jurisdiction but shall decide the case and admit amended pleadings or additional evidence in the interest of justice 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 this Rule.
B. 7. APPEAL FROM THE REGIONAL TRIAL COURTS Modes of Appeal – There are three modes of appeal from judgments or final orders of the RTC: (1) Ordinary Appeal or appeal by writ of error, where judgment was rendered in a civil
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or criminal action by the RTC in the exercise of its original jurisdiction This mode of appeal, governed by Rule 41, is taken to the CA on questions of fact or mixed questions of fact and law
(4) The material dates timeliness of the appeal
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the
Record on Appeal – Done in special proceedings and other cases where multiple or separate appeals are allowed. This is filed and served in the same manner as notice of appeal.
(2) Petition for Review, where judgment was rendered by the RTC in the exercise of its appellate jurisdiction This mode of appeal, covered by Rule 42, is brought to the CA on question of fact, of law, or mixed questions of fact and law
Contents of the Record (Rule 41, Sec. 6) (1) Full names of all the parties to the proceedings shall be stated in the caption of the record on appeal (2) It shall include the judgment or final order from which the appeal is taken, (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 (4) For the proper understanding of the issue involved (5) Together with such data as will show that the appeal was perfected on time
(3) Petition for Review on Certiorari, or appeal by certiorari to the SC This mode of appeal, provided for by Rule 45, is brought to the SC from the decision of the RTC in the exercise of its original jurisdiction and only on questions of law
B. 8. APPEAL FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS [RULE 41]
Approval of the Record on Appeal (Rule 41, Sec. 7) Upon filing of the record for approval and if no objection is filed by the appellee within 5 days from receipt of a copy thereof, the trial court may: (1) Approve it as presented; or (2) Direct its amendment by the inclusion of any omitted matters which are deemed essential
Appeal 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
Joint Record on Appeal (Rule 41, Sec. 8) Where both parties are appellants, they may file a joint record on appeal.
Notice of Appeal – Filed with the court which rendered the judgment or final order appealed from. A copy is served on the adverse party. (Rule 41, Sec. 5)
I. PERIOD TO APPEAL [Rule 41, Sec. 2] (1) 15 days from notice of judgment or final order appealed from (2) 30 days from notice of judgment or final order where a record on appeal is required (3) 48 hours from notice of judgment or final order appealed from in habeas corpus cases
Contents of the Notice of Appeal: (1) Parties to the appeal (2) Judgment or final order or part thereof appealed from (3) The court to which the appeal is being taken; and
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Reckoning point of reglementary period Period for filing the appeal should be counted from the date when the party’s counsel received a copy of the judgment or final order
(1) (2) (3) (4) (5) (6) (7) (8)
When a party is represented by a counsel, service of process must be made on counsel, not on party [Fajardo v. CA] Effect of Motions for New Trial and Reconsideration Originally, the period to appeal is interrupted by a timely motion for new trial and reconsideration. However, with the Neypes doctrine, a party has a fresh 15-day period from a denial of the motion to perfect an appeal.
REMEDIAL LAW
Subject index Assignment of Errors Statement of the Case Statement of Facts Statement of Issues Arguments Relief Copy of judgment or final order appealed from
Appellee’s Brief Filed within 45 days from receipt of appellant’s brief Manner of filing is similar to that in appellant’s brief Contents: (1) Subject index (2) Statement of Facts Statement of Facts (3) Arguments
Extension of Period to Appeal Period to appeal may be extended but such extension is addressed to the sound discretion of the court (Socco v. Garcia)
and
Counter-
Appellant’s Reply Brief (1) Filed within 20 days from receipt of appellee’s brief (2) This is not mandatory as it is optional on the part of the appellant
The mere filing and pendency of motion for extension to perfect appeal does not suspend the running of the reglementary period (Bello et al., v. Fernandez)
Extension of Time for Filing Briefs: General rule: Not allowed Exception: For good reasons and only if motion for extension is filed before expiration of time sought to be extended
II. PLEADINGS FILED [See Rule 44, Procedure in the CA] Appellant’s Brief Filed within 45 days from receipt of notice of clerk that all evidence is attached to record Follow the Efficient Use of Paper Rule, one original properly marked and 2 copies with annexes Attach proof of service to adverse party
III. PERFECTION OF APPEAL Payment of Docket Fees [Rule 41, Sec. 4] 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. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal.
Grounds for dismissal with respect to appellant’s brief: (1) Failure to file brief on time (2) Failure to make specific assignment of errors in his brief Contents: 111
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Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal.
filed before expiration of the period to appeal) (5) Allow withdrawal of the appeal
Perfection of Appeal (Rule 41, Sec. 9) If appeal is by notice of appeal – it is deemed perfected as to him upon the filing of the notice of appeal in due time If appeal is by record on appeal – it is perfected as to him with respect to the subject matter thereof, upon approval of the record on appeal filed in due time
The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA).
Effect of Perfected Appeal (1) In appeals by notice of appeal: Court loses jurisdiction over the case upon perfection of appeal filed in due time and expiration of the time to appeal of the other parties This rule applies individually and to each of the parties since the timeliness of their recourse for appellate remedy depends on when they respectively received a copy of the judgment or final order
Duty of Clerk Upon Perfection of Appeal [Rule 41, Sec. 10] Within 30 days after perfection of all appeals, the RTC clerk shall: (1) Verify completeness of original record or record on appeal and make certification as to its correctness (2) Verify completeness of records that will be transmitted to appellate court (3) If found to be incomplete: (a) Take such measures as may be required to complete records (b) If efforts to complete records fail: (i) Indicate in his letter of transmittal the exhibits or transcripts not included (ii) Reasons for their transmittal (iii) Steps taken or that could be taken to have them available (4) Transmit the records to appellate court and furnish the parties with copies of his letter of transmittal
(2) In appeals by record on appeal: Court loses jurisdiction only over the subject matter thereof upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties The effect is limited to the subject matter only. Jurisdiction over the case is still with the trial court
IV. DISMISSAL OF APPEAL
Residual Powers/Jurisdiction of the RTC After losing jurisdiction but prior to the transmittal of the original record on appeal, the RTC may: (1) Issue orders for preservation of the rights of the parties, which do not involve matters litigated by appeal (2) Approve compromise (3) Permit appeal by an indigent (4) Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was
[Rule 41, Sec. 13] When can the RTC dismiss the appeal? Prior to transmittal of original record to appellate court; or Prior to transmittal of record on appeal to the appellate court How done: By the court, motu proprio, or on motion to dismiss appeal by a party
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Grounds (1) Appeal was taken out of time (2) Non-payment of docket and other lawful fees within the reglementary period
REMEDIAL LAW
No further extension may be granted except for the most compelling reason and in no case to exceed 15 days.
Note: The dismissal of the appeal in RTC is limited only to these two grounds
II. FORM AND CONTENTS
B. 9. PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS [RULE 42]
Form of the petition: (1) Original copy is filed intended for the court, properly marked and 2 copies with their annexes (Efficient Use of Paper Rule) (2) Accompanied by clearly legible duplicate originals or true copies of judgments or final orders of both lower courts certified correct by the RTC clerk (3) Also with pleadings and other material portions of record as would support the allegations of the petition
[Rule 42, Sec. 5]
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. 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.
Contents: (1) Full names of the parties without impleading the lower courts or judges thereof (2) Specific material dates showing timeliness of appeal (3) Concise statement of: (a) Matters involved (b) Issues raised (c) Specification of errors of fact or law, or both (d) Reasons or arguments relied upon (4) A certificate of non-forum shopping must also be attached
I. HOW TAKEN; PERIOD TO APPEAL 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 decision, or (b) Within 15 days from notice of denial of petitioner’s motion for new trial or reconsideration (2) Pay the corresponding docket fee and other lawful fees and depositing P500 for costs (3) Furnish the RTC and adverse party a copy of the petition
Effect of failure to comply [Rule 42, Sec. 3] Failure to comply with any of the following requirements shall be sufficient ground for dismissal: (1) Payment of docket and other lawful fees
Extension of period The CA may grant an additional 15 days within which to file the petition for review
Note: In petitions for review under Rules 42, 43, and 45, the docket fee is paid in the appellate courts
Conditions (1) There was a motion filed to this effect (2) There was payment in full of docket fees and other lawful fees as well as deposit for costs (3) These two were done within the reglementary period
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(1) An original is filed, properly marked, together with 2 copies with their annexes (Efficient Use of Paper Rule) (2) Accompanied by certified true copies of such material portions of the record referred to therein (3) Together with other supporting papers (4) Copy of the comment served on petitioner
III. PERFECTION OF APPEAL [Rule 42, Sec. 8] Appeal is deemed perfected as to petitioner upon: (1) Timely filing of the petition (2) Payment of docket and lawful fees Jurisdiction of the RTC (1) RTC loses jurisdiction upon: (a) Perfection of appeals filed in due time; and (b) Expiration of the time to appeal of other parties (2) RTC may exercise residual jurisdiction before the CA gives due course to the petition
Contents – The comment shall: (1) State whether or not he accepts the statement of matters involved in the petition (2) Point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters but without repetition (3) Reasons why the petition should not be given due course
General rule: Perfected appeal stays the challenged judgment or final order Exceptions: (1) Civil cases decided under the Rule on Summary Procedure; or (2) Unless the CA, law, or Rules, provide otherwise [Rule 42, Sec. 8]
Due Course [Rule 42, Sec. 6] If the Court of Appeals 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.
IV. ACTION ON PETITION
As stated earlier, the Doctrine of Residual Jurisdiction of the RTC applies as in cases under Rule 41, except that the RTC must exercise this jurisdiction before the CA gives due course to the petition. In contrast, the RTC must exercise residual jurisdiction in Rule 41, prior to transmittal of the original record or the record on appeal.
[Rule 42, Sec. 4] The CA may: (1) Require 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 the same to be: (a) Patently without merit (b) Prosecuted manifestly for delay; or (c) The questions raised therein are too unsubstantial to require consideration
V. SUBMISSION FOR DECISION [Rule 42, Sec. 9] If the petition is given due course (1) Case may be set for oral argument, or (2) The parties may be required to submit memoranda within 15 days from notice
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. Comment by Respondent [Rule 42, Sec. 5] Form
Case shall be deemed submitted for decision upon filing of last pleading or memoranda
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B. 10. APPEALS FROM QUASI-JUDICIAL BODIES
REMEDIAL LAW
Where to Appeal [Rule 43, Sec. 3] Appeal is taken to the CA on questions of fact, of law, or mixed questions of fact and law.
Scope: Appeals from awards, judgments, final orders or resolution of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions
Period to Appeal [Rule 43, Sec. 4] Period to appeal is 15 days from: (1) Notice of award, judgment, final order, or resolution; (2) Date of publication, if publication is required by law for its effectivity; or (3) Denial of petitioner’s motion for new trial or reconsideration.
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
Extension of Period The CA may grant an additional 15 days within which to file the petition for review
Note: The CTA is no longer a quasi-judicial agency under RA 9282, as of April 7, 2004. 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, RA 9282 and A.M. No. 07-7-12-SC]
Conditions: (1) There was a motion filed to this effect (2) There was payment in full of docket fees and other lawful fees as well as deposit for costs (3) These two were done within the reglementary period
QJAs 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
No further extension may be granted except for the most compelling reason and in no case to exceed 15 days. Note: Similar to the rule in petition for review from the RTC to the CA (Rule 42). How Taken [Rule 43, Sec. 5] (1) A verified petition for review is filed with the CA following the Efficient Use of Paper Rule (a) Attach proof of service of a copy to the adverse party and to the court or agency a quo (2) Upon filing, pay the docket and lawful fees as well as a P500 deposit for costs (a) Payment is made to the CA clerk (b) Exemption from payment may be granted by the CA by filing a verified motion for exemption; if denied, party must pay within 15 days from notice of denial
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Contents of Petition [Rule 43, Sec. 6] (1) Statement of full names of parties to the case without impleading court or agencies (2) Concise statement of facts and issues involved and grounds relied upon for review (3) Accompanied by: (a) Clearly legible duplicate original or a certified true copy of award, judgment, final order, or resolution appealed from (b) Certified true copies of such material portions of record referred to in the petition and other supporting papers (4) Certificate of non-forum shopping (5) Statement of specific material dates showing timeliness of appeal
(b) And such other supporting documents (3) Copy of Comment is served on petitioner with proof of such service filed with the CA
Effect of Failure to Comply [Rule 43, Sec. 7] Failure to comply with the following is sufficient ground for the CA to dismiss the appeal: (1) Payment of docket and lawful fees (2) Deposit for costs (3) Proof of service of petition (4) Contents of petition (5) Documents which should accompany the petition
If not, then the CA may dismiss the same.
Contents of Comment [Rule 43, Sec. 9] The comment shall: (1) Point insufficiencies or inaccuracies in petitioner’s statement of facts and issues (2) State reasons why petition should be denied or dismissed Due Course [Rule 43, Sec. 10] CA may give due course if CA finds prima facie that court or agency has committed errors of fact or law that would warrant reversal or modification
Transmittal of Records [Rule 43, Sec. 11] Within 15 days from notice that petition has been given due course, the CA may: (1) Require court or agency concerned to transmit original or legible certified true copy of entire record of proceeding under review (2) Require or permit subsequent correction or addition to record
Action on the Petition [Rule 43, Sec. 8] The CA may: (1) Require respondent to file Comment within 10 days from notice (2) Dismiss the petition if CA finds the same to be: (a) Patently without merit (b) Prosecuted manifestly for delay, or (c) Questions raised are too unsubstantial to require consideration
Effect of Appeal [Rule 43, Sec. 12] General rule: Appeal shall not stay the award, judgment, final order or resolution sought to be reviewed Exception: When the CA shall direct otherwise upon such terms as it may deem just Submission for Decision [Rule 43, Sec. 13] If petition is given due course, the CA may set the case for oral argument or require parties to submit memoranda within 15 days from notice.
Form of Comment [Rule 43, Sec. 9] (1) Filed within 10 days from notice following the Efficient Use of Paper Rule (2) Accompanied by the following: (a) Clearly legible certified true copies of such material portions of the record referred to therein
Upon filing of last pleading or memorandum required, case is deemed submitted for decision.
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B. 11. APPEAL FROM THE CTA
Jurisdiction of the CA (1) CA has jurisdiction over orders, directives, and decisions of the Office of Ombudsman in administrative disciplinary cases only (2) It cannot review orders, directives, decisions in criminal and nonadministrative cases
A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45. (Sec. 19, RA 1125 as amended by RA 9282)
B. 12. APPEAL FROM THE COMELEC Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation. [Rule 37, Sec. 1, COMELEC Rules of Procedure; Rule 64, Sec. 3, Rules of Court]
Jurisdiction of the SC (1) In criminal cases, ruling of Ombudsman shall be elevated to the SC via Rule 65 (2) In cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with this Court to set aside the Ombudsman’s order or resolution. [Nava v. NBI (2005)]
Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and qualifications of municipal and barangay officials are not appealable. (Rule 37, Sec. 2, COMELEC Rules of Procedure)
B. 14. APPEAL FROM THE NLRC Appeal from quasi-judicial agencies does not apply to judgments or final orders issued under the Labor Code. [Rule 43, Sec. 2]
Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. (Rule 37, Sec. 3, COMELEC Rules of Procedure)
B. 13. APPEAL OMBUDSMAN
FROM
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The remedy of a party aggrieved by the decision of the NLRC is to file a motion for reconsideration 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 (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 (2013)]
THE
The following decisions are unappealable [Admin Order No. 7, Rule III, Sec. 7] (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
NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. [Fabian v. Desierto (1998)]
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B. 15. APPEAL BY CERTIORARI TO THE SUPREME COURT [RULE 45]
the exercise of exercises original appellate jurisdiction jurisdiction under its and power of review power of control and supervision over proceedings of lower courts
Certiorari as Mode of Appeal and as Special Civil Action [Herrera] Appeal by Certiorari [Rule 45]
Based on questions of law
Involves review of judgment, award or final order on merits
Must be made within the reglementary period of appeal
Stays the judgment, award, or order appealed from
Petitioner and respondent are original parties to the action
Prior filing of MR not required Appellate court is in
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Certiorari as SCA [Rule 65] Raises the issue of whether the lower court acted without or in excess of jurisdiction, or with grave abuse of discretion May be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy, or adequate remedy May be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed Does not stay the challenged proceedings, unless a writ of preliminary injunction or TRO is issued The parties are the aggrieved party against the lower court or quasijudicial agency as prevailing parties A filing of a MR is a condition precedent, subject to certain exceptions Higher court
Outline of Procedure RTC, Sandiganbayan, CTA en banc, or CA renders a decision
Any party files a petition for review on certiorari Within 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial
Appellant serves copies of petition on adverse parties And to the lower court, And pay the corresponding docket fees
SC may dismiss the petition or require appellee to comment
If given due memoranda
course,
parties
may
submit
SC may affirm, reverse, or modify judgment of lower court
I. PROPRIETY AS A MODE OF APPEAL Appeals to the SC can be taken from a judgment or final order or resolution of the CA, Sandiganbayan, CTA en banc, RTC or such other courts as may be authorized by law 118
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II. APPEAL FROM RTC TO SC UNDER RULE 45
Only questions of law are allowed. Whether an appeal involves only questions of law or both questions of law and fact is best left to the determination of an appellate court and not by the court which rendered the decision appealed from (PNB v. Romillo, etc., et al.)
RTC must have rendered judgment in the exercise of its original jurisdiction . 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
QUESTIONS LAW
OF QUESTIONS OF FACT Doubt as to the truth Doubt as to what the or falsehood of facts, law is on certain or as to probative facts value of the evidence presented If the appellate court can determine the The determination issue without involves evaluation or reviewing or review of evidence evaluating the evidence Query involves the calibration of the whole evidence considering mainly Can involve the credibility of questions of witnesses, existence, interpretation of law and relevancy of with respect to specific surrounding certain set of facts circumstances and relation to each other and the whole probabilities of the situation
If the other party had already taken an appeal to the CA to question the RTC decision, the property remedy of petitioner is simply ordinary appeal to the CA as well. (First Phil. International Bank v. CA) Grave abuse of discretion is not an allowable ground under Rule 45. (Martires v. CA).
III. APPEAL FROM CA Appeal under Rule 45 is the proper review of decisions of the CA even in special civil actions. Any alleged errors committed by it in the exercise of jurisdiction would be errors of judgment which are reviewable by timely appeal and not by special civil action of certiorari. Rule 45 is clear that decisions, final orders, or resolutions of the CA in any case, regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review, which would but be a continuation of the appellate process over the original case.
The SC is not a trier of facts, and is not to review or calibrate the evidence on record. Moreover, findings of facts of trial court, as affirmed on appeal by the CA, are conclusive on the court (Boston Bank of the Philippines v. Manalo)
IV. CONCLUSIVENESS OF FINDINGS OF FACT General rule: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC
It has to be emphasized that it is not the duty of the SC to review, evaluate, and weigh the probative value of the evidence adduced before the lower courts (Frondarina v. Malazarte)
Exceptions: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when:
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(1) Conclusion is a finding grounded entirely on speculations, surmises or conjectures [Joaquin v. Navarro (1953)]. (2) Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok (1942)]. (3) There is grave abuse of discretion in the appreciation of facts [Buyco v. People (1954)]. (4) Judgment is based on a misapprehension of facts [De la Cruz v. Sosing (1953). (5) The Court of Appeal’s findings of fact are conflicting [Casica v. Villaseca (1957)]. (6) The Court of Appeals, 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 (1986)]. (7) The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos (1965)]. (8) The Court of Appeal’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 Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz v. CA (1987)].
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(2) Payment of docket and lawful fees, and deposit for costs; and (3) Showing of justifiable reasons. Note: Both (1) and (2) must be within the reglementary period. Form of Petition The petition must be verified: (1) Following the Efficient Use of Paper Rule: (a) One original, properly marked, and 4 copies (b) If the case is referred to En Banc, 10 additional copies is filed (2) Payment of docket and other lawful fees and deposit of P500 for costs is made with the SC Clerk at the time of filing (3) Proof of service of the petition to the lower court and adverse party are attached
Contents of Petition [Rule 45, Sec. 4] (1) State full names of the parties (a) Appealing party = as Petitioner (b) Adverse party = as Respondent (c) Do not implead lower courts or judges (2) Indicate material dates showing: (a) When notice of judgment or final order or resolution was received (b) When a motion for new trial or reconsideration, if any, was filed and when a denial thereof was received (3) Concise statement of: (a) The matters involved (b) Reasons or arguments relied on (4) Accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court and court a quo (5) Certificate of non-forum shopping
Period of Appeal [Rule 45, Sec. 2] Time for Filing: 15 days from (1) Notice of judgment, final order, or resolution appealed from, or (2) Notice of denial of motion for new trial or reconsideration filed in due time after notice of judgment Note: The Neypes doctrine is also applicable in Rule 45.
Grounds for Denial of Petition [Rule 45, Sec. 5] (1) Failure of petitioner to comply with:
Extension of Period: 30 days upon (1) Motion duly filed and served;
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B. 16. DISMISSAL OF APPEALS
(a) Payment of docket or other lawful fees (b) Deposit for costs (c) Proof of Service; and (d) Contents of and documents which would accompany the petition (2) Appeal is without merit (3) Is prosecuted manifestly for delay (4) That the questions raised are so unsubstantial as to require consideration
Dismissal by the CA [Rule 50] An appeal may be dismissed by the CA, on its own motion, or on that of the appellee on certain grounds. Grounds for Dismissal [Rule 50, Sec. 1-2] (1) Failure of record on appeal to show on its face that appeal was taken within the period fixed by Rules (2) Failure to file notice of appeal or record on appeal within prescribed period (3) Failure of appellant to pay docket and other lawful fees as provided in Sec. 4, Rule 41 (4) Unauthorized alterations, omissions, or additions in approved record on appeal as provided in Sec. 4, Rule 44 (5) Failure of appellant to serve and file required number of copies of his brief or memorandum within time provided by Rules (6) Absence of specific assignment of errors in the appellant’s brief, or of page references to record as required in Sec. 13, (a), (c), (d), (f), Rule 44 (7) Failure of appellant to take necessary steps for correction or completion of record within time limited by the court in its order (8) Failure of appellant to appear at preliminary conference under Rule 48 or comply with orders, circulars, directives of the court without justifiable cause (9) Fact that the order or judgment appealed from is not appealable (10) Appeal under Rule 41 from the RTC, raising only questions of law; (11) Appeal by notice of appeal from a decision rendered by the RTC in its appellate jurisdiction; (12) Appeal erroneously taken to the CA
NOTE: SC may dismiss the petition motu proprio
Review is Discretionary [Rule 45, Sec. 6] Appeal to the SC is NOT a matter of right. It will be granted only when there are special and important reasons therefor. Some indications of the character of reasons which will be considered: (1) When the court a quo has decided the 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 provisions of the SC; or (2) Court a quo has so far departed from accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of power of supervision Elevation of Records [Rule 45, Sec. 8] If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice
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(3) Where appeal is frivolous or dilatory
Dismissal by the SC [Rule 56] The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (1) Failure to appeal within reglementary period (2) Lack of merit of petition (3) Failure to pay docket and lawful fees and deposit (4) Failure to comply with requirements on proof of service, contents, and documents accompanying petition (5) Failure to comply with circular, directive, or order of SC without justifiable cause (6) Error in choice of mode of appeal (7) The case is not appealable to the SC
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COMPARATIVE TABLE ON THE MODES OF APPEAL WHEN PROPER RULE 40 RULE 41 ORDINARY APPEAL Matter of Right; Filed with the court of origin All records are elevated from court of origin Appeal from a decision of Appeal from a judgment or the RTC in the exercise of its final order of a MTC original jurisdiction
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule 40 provisions
WHERE TO FILE RULE 40 Filed with the MTC Appeal to the RTC
RULE 41 Filed with the RTC Appeal to the CA
RULE 42 RULE 43 RULE 45 PETITIONS FOR REVIEW Discretionary; No records are elevated unless the court decrees it Filed with the appellate court Appeals to the SC from a judgment or final order or resolution of the CA, Appeals from awards, Sandiganbayan, CTA en banc, judgments, final orders RTC (original jurisdiction) or such Appeal from a decision of or resolution of or other courts as may be the RTC rendered in the authorized by any quasi- authorized by law exercise of its appellate judicial agency in the Decisions, final orders, or jurisdiction exercise of its quasi- resolutions of the CA in any case, judicial functions regardless of the nature of the action or proceedings involved, may be appealed to the SC by filing a petition for review, RULE 42 Filed with the CA Appeal to the CA
RULE 43 Filed with the CA Appeal to the CA Questions of fact, Questions of fact or mixed Questions of fact, Questions Questions of fact or mixed Questions of law, or questions of fact and law of law, or Mixed questions of questions of fact and law Mixed questions of fact both and law
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RULE 41
RULE 42
RULE 43 Within 15 days from: (1) Notice of award, Within 15 days from notice of BY NOTICE OF APPEAL judgment, final decision, or Within 15 days after notice of judgment or final order order, or resolution; Within 15 days from notice of (2) Date of publication, if denial of petitioner’s motion BY RECORD ON APPEAL publication is for new trial or Within 30 days from notice of judgment or final order by filing required by law for its reconsideration a notice of appeal and a record on appeal effectivity; (3) Denial of petitioner’s MNT or MR
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RULE 45 Within 15 days from: (1) Notice of judgment, final order, or resolution appealed from, or (2) Notice of denial of motion for new trial or reconsideration filed in due time after notice of judgment
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C. RELIEF FROM JUDGMENTS. ORDERS, AND OTHER PROCEEDINGS
REMEDIAL LAW
Applies to Applies to judgments, final judgments or final orders and other orders only proceedings Grounds: (1) FAME; or (2) Newly Ground: FAME discovered evidence Filed: (1) within 60 days from knowledge Filed within the time of judgment; and to appeal (2) within 6 months from entry of judgment If denied, order If denied, order of denying a petition for denial is not relief is not appealable; hence, appealable; remedy remedy is appeal is appropriate civil from judgment action under Rule 65 Legal remedy Equitable remedy Motion need not be Petition must be verified verified
Remedies after finality of judgment (1) Petition for Relief [Rule 38] (2) Action to Annul Judgment [Rule 47] (3) Collateral Attack of a Judgment that is Void on its Face
C. 1. NATURE A legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake, or excusable negligence (FAME). [Quelnan v. VHF Phils A petition for relief from judgment is an equitable remedy allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available, either motion for new trial or appeal, and he was not prevented by FAME from filing such motion or taking such appeal, he cannot avail himself of this petition. [Trust International Paper Corp. v. Pelaez]
A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed. [Francisco v. Puno (1981)]
A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric v. CA (1990)]
C. 3. WHEN PROPER The petition can be availed of when the judgment or final order has been entered or when any other proceeding is thereafter taken against the petitioner in any court through FAME. [Rule 38, Section 1]
C. 2. MOTION FOR NEW TRIAL AND PETITION FOR RELIEF Motion for New Trial [Rule 37]
Petition for Relief [Rule 38] Available after Available before judgment has judgment becomes become final and final and executory executory
Thus, it was held that a petition for relief is also applicable to a proceeding taken after entry of judgment or final order such as an
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order of execution (Cayetano v. Ceguerra) or an order dismissing an appeal (Medran v. CA)
REMEDIAL LAW
(1) The 60-day period is reckoned from the time the party acquired knowledge of the order, judgment or proceeding. Not from the date he actually read the same (Perez v. Araneta) (2) 6-months period is computed from the date of entry of the order or judgment
C. 4. WHERE FILED Rule 38 is not an independent action but a continuation of the old case. Hence, it is filed with the same court and same branch which decided the case.
C. 7. FORM OF THE PETITION The petition must be: (1) Verified; (2) Accompanied by an affidavit showing the FAME relied upon; and (3) Accompanied by an affidavit of merit, showing the facts constituting the petitioner’s good and substantial cause of action or defense.
C. 5. GROUNDS [Rule 38, Sec. 1-2] (1) When judgment or final order is entered or any other proceeding is thereafter taken against petitioner through FAME (2) When petitioner has been prevented from taking an appeal by FAME Note: “Extrinsic fraud” is that 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 (2011)]
The absence of an affidavit of merits is a fatal defect and warrant denial of the petition (Fernandez v. Tan Tiong Tick)
C. 6. PERIOD FOR FILING
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.
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)
[Rule 38, Sec. 3] (1) Within 60 days after 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 These two periods must concur, are not extendible and are never interrupted. Strct 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. ]
ORDER TO FILE ANSWER (Rule 38, Sec. 4) An order to answer shall issue only if petition is sufficient in form and substance. If petition is sufficient in form and in substance, the court shall issue an order requiring the adverse party to answer within 15 days from receipt thereof. PROCEEDINGS AFTER ANSWER IS FILED (Rule 38, Sec. 6)
Reckoning Points
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After filing of answer or expiration of the period therefor, court shall hear the petition.
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failed to avail himself of those remedies through his own fault or negligence. [Republic v. ‘G’ Holdings, Inc. ]
If the court finds that the allegations are not true – Petition is dismissed.
It is a condition sine qua non that one must have failed to avail of those remedies, through no fault attributable to him. Otherwise, he would benefit from his own inaction or negligence. [Republic v. De Castro ]
If the court finds that allegations are true: (1) It shall set aside the judgment, final order, or other proceeding complained of upon such terms as may be just (2) Thereafter, case shall stand as if such had never been rendered, issued, or taken (3) The court shall then proceed to hear and determine the case as if timely motion for new trial or reconsideration has been granted by it
Where Filed Judgment, Final Order or Resolution of the RTC Filed with the CA CA has exclusive and original jurisdiction over said action under Sec. 9 (2) of BP 129 The CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition
REMEDY FOR DENIAL OF PETITION FOR RELIEF. Appeal from an order denying a petition for relief is no longer available under the present rules. The remedy against a denial of a petition for relief is certiorari under Rule 65, when proper.
Judgment, Final Order or Resolution of the MTC, etc. Filed with the RTC RTC as a court of general jurisdiction under Sec. 19(6) BP 129 The RTC has no such discretion, it is required to consider it as an ordinary civil action
Who Can File Petitioner need not be a party to the judgment sought to annulled.
D. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS
A person who is not a party to the judgment may sue for its annulment provided that he can prove the same was obtained through fraud or collusion, and that he would be adversely affected thereby. [Alaban v. CA ]
D. 1. NATURE An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose is to have the final and executory judgment set aside so that there will be a renewal of litigation. [Alaban v. CA ]
D. 2. GROUNDS [Rule 47, Sec. 2] (1) Extrinsic Fraud A fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from exhibiting fully his side of the case by deception
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practiced on him by the prevailing party [Alba v. CA ] Extraneous evidence is admitted
(2) (3)
(2) Lack of Jurisdiction Either lack of jurisdiction over the person of the defending party, or over the subject matter of the claim Petitioner must show absolute lack of jurisdiction and not mere abuse of judicial discretion; a claim of grave abuse of discretion will support a petition for certiorari but not an action for annulment of judgment. Only evidence found in the record can justify nullity
(4)
(5)
(b) Petitioner’s good and substantial cause of action or defense Filed following the Efficient Use of Paper Rule Certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition Affidavits of witnesses or documents supporting the cause of action or defense; and Certificate of non-forum shopping
D. 4. PROCEEDINGS Two stages in the disposition of the petition: (1) A preliminary evaluation of the petition for prima facie merit (Sec. 5) The rule allows the CA to dismiss the petition outright as in special civil actions If prima facie merit is found, petition is given due course and summons is served on respondent
(3) Denial of Due Process Recognized as an additional ground based on jurisprudence.
D. 3. PERIOD TO FILE ACTION [Rule 47, Sec. 3]
(2) If prima facie merit is found, petition is given due course and issuance of summons as in ordinary civil cases is made (Sec. 6) Procedure in ordinary civil cases is observed
Lack of Jurisdiction Before barred 4 years from by laches or discovery estoppel Extrinsic Fraud
Period for Filing
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There must be a manifest showing with petition that it was filed within the 4-yr period.
NOTE: Prima facie determination is not available in annulment of judgments or final orders of MTCs before the RTC. (Rule 47, Sec. 10)
The rule does not fix the period to annul judgment based on lack of jurisdiction but recognizes the principle of estoppel as first laid down by Tijam v. Sibanghanoy.
D. 5. EFFECT OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7]
Based on Lack of Jurisdiction (1) The same shall be set aside, and considered null and void (2) Aggrieved party may refile the action in the proper court
Form and Contents of Petition [Rule 47, Sec. 3] (1) Verified petition, alleging therein: (a) With particularity, the facts and the law relied upon 128
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(1) By a direct action or proceeding to annul the same A direct attack against the order or judgment because it is not incidental to, but is the main object of, the proceeding 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
This may involve a different court of competent jurisdiction Where the reason was lack of jurisdiction over the defendant, the action may be re-filed in the same original court, provided it has proper jurisdiction and venue
Based on Extrinsic Fraud (1) The same shall be set aside and considered null and void (2) On motion of the prevailing party on justifiable grounds, he may be allowed to no longer refile the action; instead, the trial court which rendered the questioned judgment shall be ordered to try the case anew
(2) 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 or that the nullity of the judgment is apparent from its own recitals
The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. [Rule 47, Sec. 8]
E. COLLATERAL JUDGMENTS
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(3) By a Petition for Relief under Rule 38 This third manner of attacking must be taken in the same action or proceeding in which the judgment or order was entered
OF
E. 2. VOID JUDGMENT A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. [Polystyrene Manufacturing v. Privatization Management (2007)]
E. 1. ATTACKING A JUDGMENT Direct Attack v. Collateral Attack Direct attack upon a judgment is an action or proceeding to annul it, this being the main object of the proceeding Collateral attack upon a judgment is one made to obtain relief other than the setting aside of the judgment, the attack on the judgment itself being incidental
A void judgment may be likened to a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it rears its head. [Banco EspanolFilipino v. Palanca (1918)]
Collateral attack is proper only when the judgment on its face is null and void as where it is patent that the court which rendered said judgment has no jurisdiction
A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs of Cuyos (2008))
The validity of a judgment or order of the court, which has become final and executory, may be attacked in three ways: 129
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Attacking a Void Judgment It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of Cuyos (2008))
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exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment. (Montinola v. Judge Gonzales, 1989) Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause" [Banco Espanol v. Palanca (1918)]. A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. [Panlilio v. Garcia (1982)]
Remedies If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration [Rule 37], Appeal [Rules 4045], Petition for Relief [Rule 48], and Other Appropriate Remedies such as Certiorari may also be used.
VI. Execution, Satisfaction and Effect of Judgments
If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment [Rule 47] may be resorted to.
Execution is the legal remedy for the enforcement of a judgment. It is not an action but is included in the phrase “Process in an action” – part of the proceedings considered as still pending.
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. [See Barrameda v. Moir (1913)]
Writ of Execution – a judicial writ issued to an officer authorizing and requiring him to execute the judgment of the court.
Jurisprudential Basis Remedial Law Jurisprudence such as Spouses Benatiro v. Heirs of Cuyos, (2008) and Agustin v. Bacalan, (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner.
A. FINALITY 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. [Herrera]
Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case).
Finality for purposes of appeal refers to the distinction between “final judgments or orders” and “interlocutory orders,” which cannot be appealed. [Rule 41, Sec. 1(b)]
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The word interlocutory refers to something intervening between the commencement and the end of a suit, which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan (2004)]
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proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment/s or final order/s sought to be enforced and of the entry thereof, with notice to the adverse party.
A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. Examples include: (1) an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or (2) a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription.
Exceptions: Execution may Issue even if judgment not final in the following cases: (1) Support pendente lite (2) Judgments of inferior courts in ejectment cases (3) Execution pending appeal (4) Injunction, accounting, receivership, support [Rule 39, Sec. 4] (5) Decision of the RTC in appealed civil cases under Summary Procedure, including forcible entry and unlawful detainer (6) Decision of the LA reinstating dismissed employee, insofar as reinstatement aspect is concerned
Once rendered, the task of the court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the court except to await the parties' next move (such as filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, to cause the execution of the judgment once it becomes 'final and executory.’
B. 1. EXECUTION AS A MATTER OF RIGHT [Rule 39, Sec. 1]
Finality for purposes of execution refers to the judgment being “final and executory” upon the lapse of the appeal period if no appeal is taken, upon which execution shall issue as a matter of right. [Rule 39, Sec. 1]
A judgment becomes final and executory by operation of law, not by judicial declaration. The prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a ministerial duty and compellable by mandamus. [Herrera]
A judgment becomes “final and executory” by operation of law. Finality becomes a fact upon the lapse of the reglementary period to appeal if no appeal is perfected.
Execution as a matter of right is available in two instances: (1) No appeal has been perfected or period of appeal has expired (2) Appeal has been perfected and finally resolved
B. WHEN EXECUTION SHALL ISSUE General rule: Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or
How Done
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(1) If no appeal is perfected, prevailing party applies by motion for a writ of execution (2) If an appeal has been perfected and finally resolved – (a) prevailing party files a motion in the court of origin, submitting: (i) certified true copies of the judgment/s or final order/s sought to be enforced; (ii) certified true copies of the entry thereof; and (iii) with notice to the adverse party. (b) appellate court may also direct the court of origin to issue the writ of execution, upon motion in the same case, when the interest of justice so requires.
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(7) When execution is sought against property exempt from execution; (8) When refusal to execute the judgment has become imperative in the higher interest of justice. [Riano] Supervening Event Doctrine A supervening event can be invoked for the modification or alteration of a final judgment. This refers to: (1) Facts which transpire after judgment has become final and executory; (2) New circumstances which developed after the judgment has acquired finality; (3) Matters which the parties were not aware of prior to or during the trial as they were not yet in existence at that time. (4) The supervening facts or circumstances must either bear a direct effect upon the matters already litigated and settled or create a substantial change in the rights or relations of the parties therein which render execution of the final judgment unjust or impossible (Lim v. Jabalde)
Note: Execution may only issue upon motion with notice of hearing. 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. The court cannot refuse execution.
B. 2. DISCRETIONARY EXECUTION [Rule 39, Sec. 2]
Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases: (1) When the judgment has already been executed by the voluntary compliance thereof by the parties; (2) When a judgment has been novated by the parties; (3) 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; (4) When the judgment sought to b executed is conditional or incomplete; (5) When facts and circumstances transpire which would render execution inequitable or unjust; (6) When execution is sought more than five (5) years from its entry without it having been revived;
Discretionary Execution May issue before the lapse of period to appeal, and even during appeal Discretionary upon the court Upon showing of good reason for execution
Execution as a Matter of Right Period to appeal has already lapsed and no appeal is perfected Ministerial duty of the court Provided there are no supervening events
Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal. It is the execution of a judgment or final order before it attains finality. The court 132
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which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court.
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(2) it is in possession of either the original record or the record on appeal. After the trial court has lost jurisdiction, the motion may be filed in the appellate court. [Bangkok Republic Company, Ltd. v. Lee (2006)]
To be valid, there should be a good reason to justify execution pending appeal, stated in the order which granted it.
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) (2) The award of actual damages is for an amount fixed and certain (Radio Communications Inc. v. Lantin). But not an award for moral and exemplary damages (3) Insolvency of a defeated party (Hacienda Navarro v. Labrador) (4) The prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is nontransmissible, being for support (De Leon v. Soriano) (5) Where defendants were exhausting their income and have no other property aside from proceeds of the property subject in litigation (Lao v. Mencias)
Discretionary Execution is not applicable in the case of the Court of Appeals: (1) The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. (2) The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. (3) Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order. A judgment of the CA cannot be executed pending appeal. (Heirs of Justice JBL Reyes v. CA, 2000)
Stay of Discretionary Execution Discretionary execution may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, 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 [Rule 39, Sec. 3]
Requisites for Discretionary Execution: (1) There must be a motion filed by prevailing party with notice to adverse party (2) There must be a hearing of the motion for discretionary execution (3) There must be good reasons to justify the discretionary execution (4) These good reasons must be stated in a special order after due hearing
Bond may be proceeded against on motion with notice to surety General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution.
When Filed The motion for discretionary execution shall be filed with the trial court while (1) it has jurisdiction over the case; and
Exception: However, the filing of the supersedeas bond does not entitle the judgment debtor to the suspension of 133
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execution as a matter of right. Where the needs of the prevailing party are urgent, the Court can order immediate execution despite such supersedeas bond. [Regalado]
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C. HOW JUDGMENT IS EXECUTED C. 1. EXECUTION BY MOTION OR INDEPENDENT ACTION [Rule 39, Sec. 6]
If judgment is reversed totally or partially, or annulled The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances
Modes of Enforcement of Execution: Mode When Enforced Within 5 years from date of By Motion entry of judgment After the lapse of 5 years from date of entry and By before it is barred by statute Independent of limitations which is 10 Action years from date of entry (Art. 1144(3))
Remedy against Discretionary Execution The remedy is certiorari by Rule 65. 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. [Hererra]
Note: The revived judgment may be enforced by motion within 5 years from date of its entry and thereafter by action before it is barred by statute of limitations. Once the judgment is revived, 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 ]
C. 2. ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION [Rule 39, Sec. 8] Contents of the Writ of Execution (1) Issued in the name of the Republic from the court which granted the motion (2) States the name of the court, case number and title, dispositive part of judgment or order (3) Requiring the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms (a) (4) In all cases, it shall also specifically state the amount of interest, cost, damages, rents, or profits due as well as the principal obligation Dispositive Portion as Subject of Execution 134
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General rule: The dispositive portion of the decision is that part that becomes the subject of execution
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General rule: The execution of final and executory judgments may no longer be contested and prevented, and no appeal should lie therefrom.
Exceptions: (1) Where there is ambiguity, the body of the opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from decision’s ratio decidendi (2) Where extensive and explicit discussion and settlement of the issue is found in the body of the decision
Exceptions: Instances where errors may be committed prejudicial to the rights of a party, calling for correction by a higher court. Examples of these instances are: (1) when the writ varies the judgment; (2) when there has been a change in the situation of the parties rendering execution inequitable; (3) when execution is sought to be enforced against property exempt from execution; (4) when it appears that the controversy has never been submitted to the judgment of the court; (5) when the terms of the judgment are not clear enough and there remains room for interpretation; (6) when it appears that the judgment has already been satisfied; (7) when it appears the writ has been improvidently issued; (8) when it appears that the writ is defective in substance; (9) when the writ is issued against the wrong party; (10) when the writ was issued without authority.
Two 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 (1) One who is privy to judgment debtor can be reached by an order of execution and writ of demolition (Vda. De Medina v. Cruz) (2) 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) (3) Where non-parties voluntarily signed the compromise agreement or voluntarily appeared before court (Rodriguez v. Alikpala) (4) Where the remedy of a person not a party to the case which he did not avail of, was to intervene in the case in question involving rights over the same parcel of land and said person in another case was adjudged buyer in bad faith thereof (Lising v. Plan) (5) In an ejectment case, where 3rd party derived his right of possession from defendant particularly when such right was acquired only after filing of ejectment suit (Cordova v. Tornilla)
If motion to quash is denied, appeal from said denial An order granting the issuance of the writ is not appealable, except where: (1) The order varies the terms of the judgment, or (2) Where, being vague, the court renders what is believed to be a wrong interpretation
C. 3. RETURN OF WRIT OF EXECUTION [Rule 39, Sec. 14] Effectivity
Remedies against a Writ of Execution
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C. 5. EXECUTION OF JUDGMENTS FOR MONEY
The writ shall continue to be in effect during the period within which judgment may be enforced by motion (5 years from entry of judgment).
If the award is for payment of money, execution is enforced by: (1) Immediate payment on demand (2) Satisfaction by levy (3) Garnishment of debts and credits [Rule 39, Sec. 9]
Judgment Satisfied within 30 days Writ of execution is returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. Judgment Not Satisfied within 30 days Officer shall report to the court stating the reason for non-satisfaction, and shall continue to make a report every 30 days until judgment is satisfied in full or the writ expires.
I. IMMEDIATE PAYMENT ON DEMAND Procedure (1) The officer shall demand from judgment obligor the immediate payment of the full amount stated in the writ and all lawful fees
Form of Returns and Reports The returns or periodic reports made by the sheriff: (1) shall set forth the whole of the proceedings taken; (2) shall be filed with the court; and (3) shall have copies thereof furnished to the parties.
(2) The judgment obligor shall pay the amount of the judgment debt (a) Payable in Cash, Certified bank check payable to judgment obligee, or any other form of payment acceptable to judgment obligee (i) In no case shall sheriff demand that any payment by check be made payable to him (ii) Amount of judgment under proper receipt directly to the judgment obligee or his authorized representative if present at time of payment
C. 4. ENTRY OF SATISFACTION OF JUDGMENT Satisfaction of Judgment is entered by the clerk of court in the court docket and in the execution book upon: (1) Return of the writ of execution showing full satisfaction of the judgment; (2) Filing of an admission to the satisfaction, executed and acknowledged in the same manner as a conveyance of real property by the judgment creditor or his lawyer; or (3) Upon indorsement of such admission by the judgment creditor or his attorney on the face of the record of the judgment. [Rule 39, Sec. 45]
(b) If judgment obligee or his representative is present to receive payment: (i) Judgment obligor shall delver payment to executing sheriff (ii) Sheriff shall turn over the amounts within the same day to the clerk which issued the writ or deposit the amounts to a fiduciary account in the nearest government depository bank of the RTC of the locality (3) The judgment obligor shall pay the lawful fees handed over to the sheriff. 136
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Sheriff shall turn over the said amount within the same day to the clerk that issued the writ
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(a) The officer shall first levy on personal properties, if any (b) If personal properties are insufficient, then on the real properties
(4) If there is any excess it shall be delivered to the judgment obligor. Lawful fees shall be retained by the clerk
(3) Sheriff shall sell only sufficient portion of personal or real property of the judgment obligor levied upon
II. SATISFACTION BY LEVY (4) If there is more property than is sufficient to satisfy judgment and lawful fees, then sell only so much as is sufficient
Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or the whole of the judgment debtor’s property.
III. GARNISHMENT OF DEBTS AND CREDITS
Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)].
Garnishment is considered as a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation
If susceptible of appropriation, the officer removes and takes the property for safekeeping; otherwise the same is placed under sheriff’s guards. Without valid levy having been made, any sale of the property thereafter is void.
The Officer may levy on: (1) Debts due the judgment obligor and other credits, (2) Including bank deposits, financial interests, royalties, commissions, (3) And other personal property not capable of manual delivery in possession and control of third parties
Conditions before resort to Satisfaction by Levy (1) If the judgment obligor cannot pay all or part of the obligation then the officer shall levy upon the properties of the judgment obligor
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. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property.
(2) Characteristics of properties to be levied (a) Properties of every kind and nature whatsoever (b) Which may be disposed of for value (c) Not otherwise exempt from execution
Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega (1973)]
Procedure (1) The judgment obligor have the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy judgment
Notes: 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 (2012)]
(2) If judgment obligor does not exercise the option: 137
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(8) Lawful fees shall be paid directly to court UP’s funds, being government funds, are not subject to garnishment. Moreover, The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. [UP v. Dizon (2012)]
C. 6. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS [Rule 39, Sec. 10] For Conveyance of Real of Land or Personal Property Judgment directs a party to: (a) Execute a conveyance of land or personal property; (b) Deliver deeds or other documents; or (c) Perform any other specific act in connection therewith
Procedure (1) Levy shall be made by serving notice upon: (a) The person owing such debts, or (b) Having in his possession or control such credits to which judgment obligor is entitled (2) Garnishment to cover only such amount as will satisfy judgment and lawful fees
If the party fails to comply within the time specified: (1) Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court; or
(3) If there are 2 or more garnishees, holding deposits or credits sufficient to satisfy judgment, judgment obligor shall have the right to indicate the garnishee/s who shall be required to deliver. Otherwise, the choice shall be made by judgment obligee
(2) If the real or personal property directed to be conveyed is situated in the Philippines, court may by order divest the title of any party and vest it in others, which shall have the force and effect of conveyance executed in due form.
(4) The garnishee shall make a written report to the court within 5 days from service of notice of garnishment. The report shall state whether: (a) Judgment obligor has sufficient funds or credits to satisfy judgment, OR (b) Judgment obligor has insufficient funds or credits to satisfy judgment
For Sale of real or personal property An order for execution shall be issued describing the property to be sold, and directing the sheriff or other proper officer to sell it, and apply the proceeds in conformity with the judgment. [Rule 39, Secs. 8(b), 10] For Delivery or Restitution of Real Property The officer shall demand of the person against whom the judgment is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession to the judgment obligee.
(5) Garnish the amount which may be in cash, or certified bank check issued in the name of judgment obligee (6) Garnished amount shall be delivered directly to judgment obligee within 10 working days from service of notice on said garnishee requiring such delivery
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
(7) Follow procedure under “Immediate Payment on Demand” with respect to delivery
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judgment obligee in possession of such property.
(a) The party against whom the judgment is rendered; or (b) Any other person required by the judgment or by the law to obey the same.
Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.
(3) Failure of such party to obey is punishable by contempt.
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 judgment obligor has failed to remove these within a reasonable time fixed by the court.
Examples (1) A judgment in mandamus to reinstate petitioner as chief clinic of the hospital. [Vital-Gozon v. CA (1992)] (2) A judgment directing defendant to remove a fence from a certain place is a special judgment. [Marquez v. Marquez, 73 Phil. 74]
C. 8. EFFECT OF LEVY ON THIRD PERSONS
Delivery of personal property The officer shall take possession of the same and forthwith deliver it to the party entitled to it, and satisfy any judgment for money as therein provided.
C. 7. EXECUTION JUDGMENTS
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The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. [Rule 39, Sec. 12]
SPECIAL
Note: The power of the court in execution extends only over properties unquestionably belonging to the judgment debtor.
When Proper [Rule 39, Sec. 11] A judgment requires performance of any other act than payment of money or sale or delivery of property.
D. PROPERTIES EXEMPT FROM EXECUTION
Such judgment is one which can only be complied with by the judgment obligor because of his personal qualifications or circumstances.
General rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution (Rule 39, Sec. 13) (1) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith;
Procedure (1) A writ of execution shall be issued, with a certified true copy of the judgment attached.
(2) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(2) Writ shall be served by the officer upon:
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support, or any pension or gratuity from the Government;
(3) 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;
(13) Properties specially exempted by law, such as: (a) property mortgaged to the DBP [CA 458, Sec. 26]; (b) savings of national prisoners deposited with the postal savings bank [Act 2489]; (c) benefits from private retirement systems of companies and establishments with limitations [RA 4917]; (d) laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [Civil Code, Art. 1708]; (e) benefit payments from SSS [RA 1161, as amended; Sec. 16]
(4) His necessary clothing and articles for ordinary personal use, excluding jewelry; (5) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding P 100,000.00; (6) Provisions for individual or family use sufficient for four (4) months; (7) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000.00 in value;
Exception: However, no article or species of property mentioned in this section shall be exempt from: (1) Execution issued upon a judgment recovered for its price, or (2) Upon a judgment of foreclosure of a mortgage thereon.
(8) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;
The exemptions must be claimed, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. (Herrera v. Mcmicking, 1909)
(9) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four (4) months preceding the levy as are necessary for the support of his family;
(10) Lettered gravestones; (11) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (12) The right to receive legal support, or money or property obtained as such
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(2) If the claim is filed under Sec. 14, Rule 57 (Attachment) or under Sec. 7, Rule 60 (Replevin) Claimant may vindicate his claim by intervention as he has a legal interest in the matter of litigation Intervention is allowed as these actions are still pending in court
E. PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSONS Rule 39, Sec. 16, and other provisions providing a mode for recovering property alleged to have been wrongfully taken by sheriff pursuant to a writ of execution or other process, refer to a stranger to an action. [Tillson v. CA (1991)]
Effect of Third-Party Claim When a third-party claim is filed, sheriff is not bound to proceed with the levy of the property unless judgment creditor or latter’s agent posts an indemnity bond against the claim.
Remedies of Third-Party Claimant (1) Summary hearing before the court which authorized the execution (2) “Terceria” or third-party claim filed with the sheriff (Rule 39, Sec. 16) (3) Action for damages on the bond posted by the judgment creditor (4) Independent reivindicatory action
E. 1. 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
The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy v. Discaya (1990)]
Procedure (1) Claimant files application
For a Third-Party Claim to be Sufficient: (1) Must be filed by a person other than the defendant or his agent, at any time before sale (2) Must be under oath or supported by affidavit stating the claimant’s title to, or right of possession of, the property, and grounds therefor (3) Must be served upon the officer making levy and a copy thereof upon the judgment creditor
(2) Court conducts summary hearing (a) The court may command that the property be released from the mistaken levy and restored to rightful owner or possessor (b) If 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.
The timing of the filing of the claim is important because it determines the remedies available to the claimant: (1) If the claim is filed under Rule 39, Sec. 16: Claimant may vindicate his claim in a separate action Intervention is no longer allowed since judgment has already been rendered
E. 2. TERCERIA Independent of the foregoing, a third-party claimant may also avail of the remedy of Terceria. Terceria is provided in Sec. 16, Rule 39.
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E. 3. REINVINDICATORY ACTION
This is an action for damages by claimant against officer within 120 days from date of filing of bond for taking or keeping the property subject of the terceria
The aforesaid remedies are nevertheless without prejudice to any proper action that third-party claimant may file to vindicate his claim over the property. This action is separate and independent.
Procedure (1) Claimant serves on the officer making levy an affidavit of his title and a copy thereof to judgment creditor
Procedure (1) He must institute an action, distinct and separate from that which the judgment is being enforced, with the court of competent jurisdiction (2) 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. (3) In such proper action, validity and sufficiency of title of claimant will be resolved. (4) A writ of preliminary injunction against sheriff may be issued
(2) Officer shall not be bound to keep property Unless judgment creditor, or his agent, on demand of officer, posts indemnity bond not lesser nor greater than value of property (3) Where a third-party claim has been filed in due form: Prevailing party can compel the sheriff to proceed by filing of a bond to answer for damages as a consequence of the execution If sheriff proceeds with the sale without such bond, he will be personally liable for such damages as may be sustained by and awarded to the claimant
F. RULES ON REDEMPTION When Available (1) For personal property – there is NO right of redemption as the sale is absolute (2) For real property – right of redemption is available
(4) Action against Indemnity Action against indemnity bond must be filed within 120 days from date of filing of the bond After lapse of 120 days, no claim for damages for taking or keeping of property may be enforced against the bond
Who May Redeem [Rule 39, Sec. 27] (1) Judgment obligor, or his successor in interest; Successors-in-interest include, among others, one to whom the debtor has conveyed his interest in the property for purposes of redemption
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 (2014)]
(2) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien under which the property was sold. Redeeming creditors are called redemptioner.
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Unlike a judgment obligor, such redemptioner must prove his right to redeem by producing the ff. documents: (1) The documents necessary to establish his right to redeem: (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 judgment or final order was entered; (b) If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the Register of Deeds; or (c) 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]
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of sale to redeem the property. If judgment debtor redeems, no further redemption is allowed (Sec. 29). NOTE: There is no extension or interruption of redemption period. Redemption Price (1) By the Judgment Debtor or First Redemptioner: (a) Purchase PRICE (b) 1% INTEREST thereon up to time of redemption (c) 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 (d) If purchaser is also a creditor having a PRIOR LIEN to that of redemptioner, other than the judgment under which such purchase was made, the AMOUNT of such OTHER LIEN, also with interest
If the lien of the creditor is prior to the judgment under which the property was sold: (1) He is not a redemptioner (2) 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
(2) By all Subsequent Redemptioners (a) AMOUNT paid on last redemption (b) 2% INTEREST thereon (c) 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 (d) Amount of any LIENS held by said last redemptioner prior to his own, also with interest
When Redemption Can be Made (Rule 39, Sec. 28) WHO WHEN By the Within 1 year from date JUDGMENT of registration of DEBTOR certificate of sale Within 1 year from date By FIRST of registration of REDEMPTIONER certificate of sale Within 60 days from last redemption BY ALL PROVIDED that SUBSEQUENT judgment debtor has REDEMPTIONERS not exercised his right of redemption
If redemption is made by the Judgment Obligor (1) No further redemption is allowed (2) He is restored to his estate [Rule 39, Sec. 29] 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.
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If there is no redemption made within 1 year from date of registration of the certificate of sale (2) Of Last Redemptioner If there was redemption, and 60 days have elapsed and no other redemption has been made Notice must have been given, and the redemption period has elapsed
Payment of redemption price may be made to the: (1) Purchaser or redemptioner, or (2) For him to the officer who made the sale The person to whom redemption payment is made must execute and deliver to him a CERTIFICATE OF REDEMPTION 1. Acknowledged by a notary public or other officer authorized to take acknowledgements of conveyances of real property 2. Filed and recorded in the registry of deeds of the place which the property is situated 3. Registrar must note the record on the margin of the record of the certificate of sale 4. Rights Pending Redemption [Rule 39, Secs. 31 and 32] Right of Judgment Creditor Pending Redemption (1) Apply for injunction to restrain the commission of waste on the property
Two Documents which the Sheriff Executes in case of Real Property (1) CERTIFICATE OF SALE After auction sale, he will execute in favor of the purchaser the certificate of sale under Sec. 25 From registration of said certificate, the one year redemption period starts Certificate of sale after execution sale is merely a memorial of the fact of sale and does not operate as conveyance (2) DEED OF CONVEYANCE Issued if after expiration of redemption period there is no redemption Operates to transfer to purchaser whatever rights the judgment debtor had in the property The effect of a final deed of sale transfers the right as of the time of the levy
Rights of the Judgment Debtor Pending Redemption (1) Remain in possession of the property (2) Cannot be ejected (3) Use the property in the same manner it was previously used (4) Make necessary repairs to buildings thereon while he occupies the property (5) Use it in the ordinary course of husbandry (Sec. 31); and (6) Collect rents, earning and income derived from property until the expiration of period of redemption
Recovery of Purchase Price if Sale Not Effective [Rule 39, Sec. 34] Purchaser may recover the purchase price WHEN: (1) Purchaser or his successor-in-interest fails to recover possession the property; or (2) Evicted due to: (a) Irregularities in the proceedings concerning the sale;
Expiration of Redemption Period [Rule 39, Sec. 33] Judgment obligor shall have the entire period of one year from date of registration of sale to redeem the property. Entitlement to Conveyance and Possession (1) Of Purchaser at Auction Sale 144
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(b) Judgment has been reversed or set aside; (c) The property sold was exempt form execution; or (d) A third person has vindicated his claim to the property
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(2) A judgment obligor may no longer be examined after the lapse of the five years within which a judgment may be enforced by motion. [Umali v. Coquia (1988)] Order for payment Installments [Rule 39, Sec. 40]
Remedies of the Purchaser (1) File a motion in the same action or file a separate action to recover from judgment creditor the price paid (2) File a motion for revival of judgment in his name against judgment debtor; or (3) Bring an action to recover possession of property
in
Fixed
Monthly
Upon finding that the earning of the judgment debtor for his personal services are more than necessary for the support of his family, the court may order payment in fixed monthly installments. The court may also, upon failure of the judgment obligor without good excuse to pay any installment when due, punish him for indirect contempt.
G. REMEDIES OF JUDGMENT CREDITOR IF JUDGMENT NOT SATISFIED [Rule 39, Secs. 36–43]
G.2 EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR
G. 1. EXAMINATION OF JUDGMENT OBLIGOR
When Available (1) At any time after return is made, when it shows that judgment remains unsatisfied in whole or in part; and (2) Upon proof to the satisfaction of the court which issued the writ, that a natural person or juridical entity has property of the judgment obligor or is indebted to him
When Available At any time after return is made, when it shows that judgment remains unsatisfied in whole or in part Procedure Judgment Obligee entitled to an order from the court which rendered the judgment to appear and be examined concerning his property and income before the court or a commissioner assigned by the court.
Procedure Court may, by an order, require such natural person, or any officer or member of such juridical entity, to appear and be examined before the court or a commissioner concerning such property or debt.
Attendance may be compelled by order or subpoena. Failure to obey such order or subpoena, to answer as a witness, or to subscribe his deposition may be punished for contempt. [Rule 39, Sec. 38]
Attendance may be compelled by order or subpoena. Failure to obey such order or subpoena, to answer as a witness, or to subscribe his deposition may be punished for contempt. [Rule 39, Sec. 38]
Limitations (1) No judgment obligor shall be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. [Rule 39, Sec. 36] 145
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Effect Service of order shall bind all credits due to judgment debtor and all money and property in the possession or control of such person, from the time of service.
disposition or interference with the property. [Rule 39, Sec. 41] If court finds that the judgment obligor has an interest in real estate in the place where proceedings are had, and such interest may be ascertained without controversy, the receiver may be ordered to sell and convey such interest in the same manner as in a sale of real estate upon execution. [Rule 39, Sec. 42]
Note: This is not applicable if there is no issue concerning the indebtedness of the and there is no denial 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 (year)]
H. EFFECT OF JUDGMENT OR FINAL ORDERS
When Alleged Obligor Denies Debt or Claims Property When such person claims an interest in the property adverse to the judgment obligor or denies the debt, the court may issue an order (1) authorizing the judgment creditor to institute an action against such person for the recovery of such interest or debt, and (2) forbidding transfer or disposition of such interest or debt for 120 days.
G.3 OTHER REMEDIES ORDER FOR APPLICATION PROPERTY OR INCOME
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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 (2013)] Rationale: (1) to avoid delay in the administration of justice, and procedurally to make orderly the discharge of judicial business (2) to put an end to judicial controversies at the risk of occasional errors
OF
Court may order any property of judgment debtor, or any money due him, nor exempt from execution, in the hands of either himself or another person, to be applied to the satisfaction of judgment. [Rule 39, Sec. 40]
H.1 DUAL ASPECT OF RES JUDICATA (1) Bar by Former Judgment – the
After a writ of execution against property has been issued, a person indebted to judgment obligor may pay to the sheriff holding the writ the amount of his debt, or so much thereof as may be necessary to satisfy the judgment. Sheriff’s receipt shall be sufficient discharge for the amount so paid. [Rule 39, Sec. 39]
judgment or final order is a bar to the prosecution of ta subsequent action based on the same claim or cause of action o Described by Rule 39, Sec. 47, pars (a) and (b) o Also known as “Estoppel by Verdict” (2) Conclusiveness of Judgment – the judgment or final order precludes the relitigation of particular issues or facts on a different demand or cause of action o Described by Rule 39, Sec. 47, paragraph (c)
APPOINTMENT OF RECEIVER The court may appoint a receiver for the property of judgment debtor not exempt from execution, and may also forbid
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Also known as the Rule of Auter Action Pendant
BAR BY FORMER JUDGMENT Requires identity of parties, subject matter, and causes of action Absolute Bar to: (a) all matters directly adjudged; and (b) those that might have been adjudged Claim Preclusion
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otherwise provided by court. [Development Bank v. CA]
Res Judicata in Judgments in Rem
CONCLUSIVENESS OF JUDGMENT There is only identity of parties and subject matter Cause of action are different
Judgments order
or
final
Conclusive as to
Against a specific thing
Title of the thing The will or administration. However, the probate of a will or Probate of a will or granting of letters administration of the of administration estate of a deceased shall only be prima person facie evidence of the death of the testator or intestate; in respect to the personal, political, or Condition, status legal condition or or relationship of status of a particular the person, person or his relationship to another
Conclusive as to matters directly adjudged and actually litigated Issue Preclusion
I. BAR BY FORMER JUDGMENT The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. [Machoca v. Cariaga (1989)]
Res Judicata in Judgments in Personam In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive: (1) Between the parties and (2) Their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.
Requisites: (1) A FINAL judgment or order (2) JURISDICTION over the subject matter and the parties by the court rendering it (3) Judgment UPON MERITS (4) Between the TWO CASES, there is: (a) IDENTITY OF PARTIES (b) IDENTITY OF SUBJECT MATTER (c) IDENTITY OF CAUSE OF ACTION General Rule: For res judicata to apply, trial must be made on the merits of the case.
II. CONCLUSIVENESS OF JUDGMENT Any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose or subject matter
Exception: Section 3, Rule 17 of ROC: If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion . This dismissal shall have the effect of an adjudication upon the merits, unless 147
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of the two suits is the same. [Machoca v. Cariaga (1989)]
as a precedent in subsequent litigation between other parties
Requisites: (1) A FINAL judgment or order (2) JURISDICTION over the subject matter and the parties by the court rendering it (3) Judgment UPON MERITS (4) Between the TWO CASES, there is: (a) IDENTITY OF PARTIES (b) IDENTITY OF ISSUES
Stare Decisis - When the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply to it all future cases where the facts are substantially the same
PUBLIC POLICY PRINCIPLE A judgment by a foreign court is enforceable only within its territorial jurisdiction. A valid judgment rendered by a foreign tribunal may be recognized insofar as the immediate parties the underlying cause of action are concerned so long as it is convincingly shown that: (1) There has been an opportunity for a fair hearing before a court of competent jurisdiction (2) Trial upon registered proceedings has been conducted (3) There is nothing to indicate either a prejudice in court and in the system of laws under which it is sitting or fraud in procuring the judgment [Philippine Aluminum v. Fasgi Enterprises (2000)]
Law of the Case - Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. As discussed in Ayala Corp. v. Rosa-Diana Realty, 2000: Law of the Case Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent The ruling adhered to in the particular case need not be followed
will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised
I. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENT OR FINAL ORDERS
H.2 RES JUDICATA, LAW OF THE CASE AND STARE DECISIS
Res Judicata The ruling in one case is carried over to another case between the same parties
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Stare Decisis
Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts. This policy of preclusion rests on principles of comity, utility and convenience of nations.
Once a point of law has been established by the court, that point of law
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VII. PROVISIONAL REMEDIES
Clause [Section 2, Article II of the 1987 Constitution] [Regalado] Two Ways of Giving Effect to Foreign Judgment: (1) An ordinary action to enforce the foreign judgment may be filed in court; or (2) It may be pleaded in an Answer or a Motion to Dismiss.
Nature of Provisional Remedies Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies.
EFFECT OF FOREIGN JUDGMENTS (Rule 39, Sec. 48) NATURE EFFECT In judgments against a Judgment is CONCLUSIVE specific thing upon the title to the thing (in rem) Judgment is PRESUMPTIVE In judgments evidence of a right as against a between parties and their person (in successors-in-interest by a personam) subsequent title
They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo v. Roldan (1946)] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.
In both cases, judgment may be repelled by evidence of: (1) Want of jurisdiction (2) Want of notice (3) Collusion (4) Fraud (5) Clear mistake of law or fact
Kinds of Provisional Remedies 1. Preliminary Attachment (Rule 57) 2. Preliminary Injunction (Rule 58) 3. Receivership (Rule 59) 4. Replevin (Rule 60) 5. Support Pendente Lite (Rule 61)
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.
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
Before our courts can give the effect of res judicata to a foreign judgment, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds under Section 48 of Rule 39 of the Rules of Court. [Roehr v. Rodriguez (2003)]
Jurisdiction over Provisional Remedies The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Inferior courts may also grant all appropriate provisional remedies in an action pending
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with it and is within its jurisdiction [Sec. 33 (1), BP 129]
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(a) A public officer; (b) An officer of a corporation; (c) An attorney, factor, broker, agent, or clerk, in the course of his employment as such; or (d) Any other person in a fiduciary capacity, or for a willful violation of duty;
A. PRELIMINARY ATTACHMENT The provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. [Davao Light v CA (1991)]
(3) Action to recover the possession of property unjustly or fraudulently taken, detained or converted, (a) 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;
Purposes (1) To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. (2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [PCIB v. Alejandro (year)]
Note: The rule makes no distinction between real and personal property [Riano] (4) Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof;
A.1 GROUNDS FOR ISSUANCE [Rule 57, Sec. 1]
Note: The delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]
There are only specific situations where preliminary attachment may issue. The grounds are EXCLUSIVE:
(5) Action against a party who: (a) has removed or disposed of his property, or is about to do so, (b) with intent to defraud his creditors
(1) Action for recovery of a specified amount of money or damages, except moral and exemplary, (a) On a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict (b) Against a party who is: (i) about to depart from the Philippines (ii) with intent to defraud his creditors;
(6) Action against a party who: (a) Does not reside and is not found in the Philippines; or (b) On whom summons may be served by publication. Note: The persons on whom summons may be served by publication are: (a) Residents defendants whose identity or whose whereabouts are unknown [Rule 14, Sec. 14]
(2) Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: 150
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(b) Resident defendants who are temporarily out of the country [Rule 14, Sec. 16]
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(2) May be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint
Three Stages in the Grant (1) The court issues the order granting the application (2) Writ of attachment issues pursuant to the order granting the writ (3) The writ is implemented
A.2 REQUISITES FOR ISSUANCE (1) The case must be any of those where preliminary attachment is proper (Sec. 1, Rule 57) (2) Applicant must file a motion, whether ex parte or with notice and hearing (3) Applicant must file an affidavit showing the required facts (4) Applicant must post a bond executed to adverse party
Note: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained. However, once implementation of writ commences, court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act
A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel (2012)]
Issuance of the Order (1) The order may be issued either: (a) Ex parte (service of summons to defendant required) (b) Or upon motion with notice and hearing (2) The order is issued by the court in which the action is pending or the CA, or the SC Contents of the Order (1) It must require the sheriff to attach so much of the property of the party against whom it is issued as may be sufficient to satisfy applicant’s demand (a) Property must be within the Philippines (b) And it must not be exempt from execution
A.3 ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT When Applied For A preliminary attachment may be applied for (1) At the commencement of the action; or (2) At any time before the entry of judgment. Who may apply It may be applied for by the plaintiff or any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint).
(2) It shall contain an amount for the attachment bond: (a) The amount sufficient to satisfy the applicant’s demand, or (b) The value of the property to be attached as stated by applicant
Methods to Procure Preliminary Attachment (1) Writ may be prayed for in the complaint itself providing the allegations warranting its issuance
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A.3 AFFIDAVIT AND BOND
not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano]
[Rule 57, Sec. 3 and 4] For the writ to issue, the applicant must submit an affidavit and post bond. The affidavit and bond required must be duly filed with the clerk before order issues
Exceptions to Contemporaneous Service of Summons: [Rule 57, Sec. 5] (1) Summons could not be served personally or by substituted service despite diligent efforts, or (2) Defendant is a resident of the Philippines temporarily absent therefrom, or (3) Defendant is a non-resident, or (4) The action is in rem or quasi in rem.
Contents of the Affidavit The affidavit must establish that: (1) A sufficient cause of action exists; (2) The case is one of those mentioned in Sec. 1 (Grounds for Issuance); (3) There is no other sufficient security for the claim sought to be enforced by action; and (4) The amount due to applicant or possession of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims
A.5 MANNER PROPERTY
ATTACHING
The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand, unless (1) Party against whom writ is issued makes a deposit with the court from which the writ is issued, or (2) He gives a counter-bond executed to the applicant
(2) Conditioned that, if the court shall finally adjudge that applicant was not entitled to the writ, the bond will pay: (a) All costs which may be adjudged to adverse party and (b) All damages which he may sustain by reason of attachment
Attachment of specific kinds of property [Rule 57, Sec. 7] (1) Real property, or growing crops thereon, or any interest therein (a) File with the Registry of Deeds: (i) A copy of the order together with a description of the property; and (ii) A notice that the property is attached (b) The registrar of deeds must index attachments in the names of the applicant, adverse party, or person by whom the property is held or in whose name it stands in the records (c) If attachment is not claimed on the entire area of land, description sufficiently accurate for identification
The bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Riano].
PRIOR SERVICE
OF
[Rule 57, Sec. 5]
Applicant’s Bond The party applying for the order must give a bond executed to the adverse party (1) Amount is fixed by the court in its order granting the issuance of the writ
A.4 RULE ON CONTEMPORANEOUS SUMMONS
REMEDIAL LAW
OR OF
General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant but a writ may 152
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of such shall be included in the registration
REMEDIAL LAW
Attachment of property in custodia legis These may be attached by: (1) Filing a copy of the writ of attachment with the proper court or quasi-judicial agency (2) Serving a notice of attachment upon the custodian of the property [Rule 57, Sec. 7]
(2) Personal property capable of manual delivery (a) Sheriff Issues a corresponding receipt therefor (b) Sheriff takes it and safely keeps it in his custody (3) Stocks or Shares, or an Interest therein, of any corporation or company (a) Leave a copy of the writ and a notice stating that these properties are attached in pursuance of such writ (b) Leave these documents with the president, or managing agent thereof
A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano]
A.6 PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON
(4) Debts, credits, bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery (a) Leave a copy of the writ and a notice that the debts owing, credits, and other personal property are attached in pursuance of such writ (b) Leave these documents with: (i) The person owing such debts, or (ii) Having in his possession or under his control, such credits or other personal property, or (iii) With his agent
A third person who has a claim to the property attached may avail of the following remedies: (1) File terceria or third-party claim (Rule 57, Sec. 14) o A third-party claim may be filed with the sheriff while he has possession of the properties levied upon, this being the only time fixed for the purpose o The claimant makes an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff o Substantial identical procedure as in terceria in Rule 39, Sec. 16
(5) The interest of the party against whom attachment is issued in property belonging to the estate of decedent, whether as heir, legatee, or devisee (a) By service of a copy of the writ, and notice that said interest is attached (b) Service is made to: (i) The executor, or administrator, or (ii) Other personal representative of the decedent (c) Copy of the writ and notice: (i) Shall be filed with the clerk in which said estate is being settled, and (ii) Served upon the heir, legatee, or devisee concerned
(2) File independent property; or
action
to recover
(3) File motion for intervention o Available only before judgment is rendered
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Effect of Dissolution on Plaintiff’s Attachment Bond (1) 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 (2) That bond is executed to adverse party conditioned that the applicant will pay all the costs which may be adjudged to 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) (3) Until that determination is made, as to applicant’s entitlement to attachment, his bond must stand and cannot be withdrawn
A.7 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.
Ways of Discharging Attachment (1) Counterbond under Sec. 12 (2) Motion for Discharge under Sec. 13 Grounds for Discharge (1) Debtor has posted a counterbond or has made the requisite cash deposit (Sec. 12) (2) Attachment was improperly or irregularly issued (Sec. 13) (a) As where there was no ground for attachment, or (b) The affidavit and/or bond filed are defective or insufficient (Sec. 3) (3) Judgment is rendered against attaching creditor (Sec. 19) (4) Attachment is excessive, but the discharge shall be limited to the excess (Sec. 13) (5) Property attached is exempt from execution
A.8 SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED [Rule 57, Sec. 15]
Procedure (1) Pay to judgment obligee the proceeds of sale of perishable property (2) If there is any balance that remains due, sell property as may be necessary to satisfy the balance if enough remains in the sheriff or those of the clerk (3) Collection of property of garnishee and proceeds paid to judgment oblige without need of prior permission to file action but may be enforced in the same action (4) Return must be made within 10 days from receipt of writ
Note: There is a difference between the bond for issuance of writ and bond for lifting the writ (1) Bond for issuance of writ (Sec. 4) – This is for damages by reason of the issuance of the writ (2) Bond for lifting of writ (Sec. 5 and 12) – This is to secure the payment of the judgment to be recovered Only the defendant or party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counterbond under Sec. 12 (KO Glass v. Valenzuela)
B. PRELIMINARY INJUNCTION B.1 DEFINITIONS AND DIFFERENCES Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act
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Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain from (prohibitory), or to perform (mandatory), particular acts during the pendency of an action. It is only a temporary remedy. Injunction as Main Action
REMEDIAL LAW
essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order. It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.
Preliminary Injunction
Ancillary; exists only as part or incident of an independent action or proceeding Seeks a judgment Seeks to preserve the embodying a final status quo until the injunction merits can be heard Assailed by timely Assailed by petition for appeal certiorari
B.2 REQUISITES
Independent Action
(1) There must be a verified application (2) The applicant must establish: (a) The existence of a clear and unmistakable right that must be protected; (b) A material and substantial invasion of such right; and (c) An urgent and paramount necessity for the writ to prevent serious damage (3) The applicant must post a bond, unless otherwise exempted by the court (4) As to a writ of preliminary injunction, there must be notice and hearing
Purpose To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Knecht v. CA, (1993)] The injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them.
B.3 KINDS OF INJUNCTION (1) Preliminary Preventive Injunction – Prohibits the performance of a particular act or acts (2) Preliminary Mandatory Injunction – Requires the performance of a particular act or acts. This is an extreme remedy which will be granted only on showing that: (a) The invasion of the right is material and substantial (b) Right of complainant is clear and unmistakable (c) There is an urgent and paramount necessity PRELIMINARY PRELIMINARY PROHIBITORY MANDATORY INJUNCTION INJUNCTION Purpose is to prevent a person Purpose is to require from the a person to perform performance of a a particular act particular act
Temporary Restraining Order A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. [Bacolod City Water v. Labayen (2004)] An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58, Sec.4]
Status Quo Order A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or 155
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B.4 ISSUANCE OF WRIT When: It may be issued at any stage prior to the judgment or final order
The act has already The act had not yet been performed and been performed this act has violated the rights of another Status Quo is Status Quo is preserved restored
By Whom: It may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. [Rule 58, Sec. 2]
When preventive injunction does not lie; examples: (1) To restrain collection of taxes [Valley Trading v. CA](1989), except where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait v. Rafferty (1915)] (2) To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support. [Saavedra v. Estrada (1931)] (3) To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno v. Dictado (1988)] (4) To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag v. Lacson (2004)] (5) Against consummated acts. [PNB v. Adi (1982); Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]
B.5 GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION [Rule 58, Sec. 3] Preliminary injunction may be granted when it is established: (1) That applicant is entitled to the relief demanded, which consists in whole or in part in restraining commission or continuance of an act, or in requiring the performance of an act, either for a limited time or perpetually; (2) That commission, continuance, or nonperformance of the act complained of during the litigation would probably work injustice to applicant; or (3) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual
When mandatory injunction does not lie; examples (1) To compel cohabitation [Arroyo v. Vasquez (1921)] (2) Cancellation of attachment [Levy Hermanos v. Lacson (1940)] (3) Release imported goods pending hearing before the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)] (4) To take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)]
B.6 GROUNDS FOR OBJECTION, OR MOTION FOR DISSOLUTION [Rule 58, Sec. 6] The application for injunction or restraining order may be denied: (1) Upon a showing of its insufficiency. o Application is not verified o Application is not supported by the grounds in Sec. 3 o Application does not show facts entitling the applicant to the relief demanded 156
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Procedure for Issuance of TRO (1) If it appears that great or irreparable injury would result to the applicant before the matter can be heard on notice: (a) Summary hearing on the application of the TRO within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle (b) The court may issue a TRO effective for 20 days from service on the party sought to be enjoined
o Application is not supported by the required bond (2) On other grounds upon affidavits of the party enjoined, which may be opposed by the applicant also by affidavits (3) If it appears after hearing that, although applicant is entitled to injunction or TRO, the issuance or continuance thereof, would cause irreparable damage to party enjoined while applicant can be fully compensated for such damages as he may suffer. In this case, the party enjoined shall file a bond o Amount: Fixed by Court o Undertaking That he will pay all damages which the applicant may suffer by denial or dissolution of the injunction or TRO
Within the 20 day period: o The applicant must show cause why injunction should not be granted o The court will determine WON the preliminary injunction shall be granted. If granted, the court will issue the corresponding order
If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
(2) If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury (a) A TRO may be issued ex parte (after raffling of case) ordered by the Executive judge of a multiple sala court or the presiding judge of a single-sala court (b) Effective for 72 hours from issuance (i) The applicant must then immediately comply with Sec. 4 as to service of summons and documents (ii) The Executive Judge shall then summon the parties to a conference and raffle the case in their presence
B.7 TEMPORARY RESTRAINING ORDER General Rule: Before preliminary injunction may be granted, there must be prior notice to person sought to be enjoined and there must be a hearing Procedure: When an application for a writ of preliminary injunction or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala, shall proceed as follows: (1) Verified complaint and bond is filed (2) Determine if there is great or irreparable injury or extreme urgency, which warrants the issuance of a TRO o If yes, go to Procedure for Issuance of TRO (3) In both cases, Notice shall then be served to the party sought to be enjoined. There must be prior and contemporaneous service of summons (exceptions also apply)
Within the 72-hr period o The Presiding Judge before whom the case is pending shall conduct a summary hearing to determine whether the TRO shall be extended until application for preliminary injunction can be heard o In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours 157
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Effectivity of TRO o Effectivity is not extendible. No court shall have authority to extend or renew the same on the ground for which it was issued o If issued by the CA – effective for 60 days from service o If issued by SC – effective until further orders TRO ISSUED BY EXECUTIVE JUDGE (MULTI-SALA) OR ORDINARY JUDGE (SINGLE-SALA) Matter is of extreme urgency and that grave injustice and irreparable injury will arise unless immediately issued
REMEDIAL LAW
(2) Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; (3) Commencement prosecution, execution, implementation, operation of any such contract or project; (4) Termination or rescission of any such contract/project; and (5) The undertaking or authorization of any other lawful activity necessary for such contract/project.
TRO ISSUED BY ORDINARY JUDGE
This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project.
If it appears that great or irreparable injury would result
This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.
A summary hearing May be issued ex must be done before parte issuance Good for 20 days Good for 72 hours including first 72 hours Issued before Issued after raffling raffling Issued after Issued ex parte summary hearing Upon the expiration of the non-extendible period, the TRO is automatically terminated. No judicial declaration necessary.
Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]
B.8 IN RELATION TO RA 8975
B.19 RULE ON CONTEMPORANEOUS SUMMONS
Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: (1) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project
PRIOR SERVICE
OR OF
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 158
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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.
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.
Exception: 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. [Rule 58, Sec.4] The executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a TRO effective for only 72 hours from issuance if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. However, he shall immediately comply with the provisions of Rule 38, Sec. 4 as to service of summons and the documents to be served therewith. [Rule 38, Sec. 5]
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. Receivership under Rule 59 is ancillary to the main action. [Riano]
B.10 GRANT OF FINAL INJUNCTION
[Rule 59, Sec. 1]
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. (Rule 58, Sec. 9)
(1) When it appears from the verified application and other proof that the applicant 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;
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, 1997)
C.1 CASES WHEN RECEIVER MAY BE APPOINTED
Receiver – A person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties.
(2) 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;
Purpose The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the
(3) 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
C. RECEIVERSHIP
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C.2 REQUISITES; BEFORE ISSUANCE Procedure
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;
REMEDIAL LAW
REQUIREMENTS
(1) Verified application filed by the party requesting for the appointment of the receiver; (2) Applicant must have an interest in the property or funds subject of the action; (3) Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated; (4) Application must be with notice and must be set for hearing; (5) Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party. (6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond.
(4) 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.
Specific Cases (1) 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. [Family Code, Article 101] (2) 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. [Rule 39, Sec. 41] (3) After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41, Sec. 9; Acuña v. Caluag (1957)] (4) After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)] (5) 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 (1971)]
Who Appoints Receiver (1) Court where the action is pending (2) CA (3) SC (4) 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. [Rule 59, Sec. 1] Receivership may be denied or lifted (1) If the appointment was sought or granted without sufficient cause (Sec. 3) (2) Adverse party files a sufficient bond to answer for damages (Sec. 3) (3) Bond posted by applicant for grant of receivership is insufficient (Sec. 5) (4) Bond of the receiver is insufficient (Sec. 5)
C.3 THE RECEIVER Who May Be Appointed The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alcantara v. Abbas, 1963) 160
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C.4 TWO KINDS OF BOND Applicant’s Bond
A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Arigo v. Kayanan, 1983)
Applicant must file a bond executed to the party against whom the application is presented o Amount: to be fixed by the court o Undertaking: 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
Powers of a Receiver (1) Bring and defend in such capacity actions in his own name with leave of court (2) Take and keep possession of the property in controversy (3) Receive rents (4) Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver (5) Compound for and compromise the same (6) Make transfers (7) Pay outstanding debts (8) Divide the money and other property that shall remain among the persons legally entitled to receive the same’ (9) Generally, to do such acts respecting the property as the court may authorize (10) Invest funds in his hands, only by order of the court upon the written consent of all the parties. [Rule 59, Sec. 6]
The court may require additional bond after appointment in the exercise of its discretion as further security for such damages (Rule 59, Sec. 2)
Receiver’s Bond As a precondition before entering into his duties, receiver must file a bond. o Executed to the person against whom the application is presented o Amount: in such sum as the court may direct. o Undertaking: To the effect that he will faithfully discharge his duties and obey the orders of the court (Rule 59, Sec. 4)
Liability for refusal or neglect to deliver property to receiver (1) May be punished for contempt; and (2) 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. [Rule 59, Sec. 7]
DAMAGES DAMAGES ARISING RESULTING FROM AFTER APPOINTMENT APPOINTMENT Damages which arise due to Damages resulting receiver’s from appointment negligence or mismanagement The right rests on The right is statutory general principles of law The damages may Liability rests on the be caused before the mismanagement or receiver qualifies or negligence of takes possession of receiver the property The applicant’s bond The receiver’s bond is responsible is responsible
Remedies Against the Receiver (1) No action against receiver can be maintained without leave of court (2) An aggrieved party may: (a) 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 (b) Ask for leave of court to bring him an action directly 161
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C.5 TERMINATION
REPLEVIN
Ground: The necessity for a receiver no longer exists
The purpose is to recover personal property capable of manual delivery from the defendant
Procedure (1) The court shall determine that the necessity for a receiver no longer exists o Motu proprio, or on motion of either party (2) Due notice shall be given to all interested parties (3) A hearing shall be conducted (4) The court shall then settle the accounts of the receiver (5) The court directs delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them (6) The court will then order the discharge of the receiver
The property either belongs to the plaintiff or one over which the plaintiff has a right of possession May be sought only when the principal action is for the recovery of personal property Can be sought only when defendant is in actual or constructive possession of the property Cannot be availed of when property is in custodia legis
Effect (1) Settle accounts of receiver (2) Delivery of funds to person entitled (3) Discharge of receiver (4) Receiver entitled to reasonable compensation to be taxed as costs against defeated party
REMEDIAL LAW PRELIMINARY ATTACHMENT The purpose is to have the property put in the custody of the court to secure the satisfaction of the judgment that may be rendered in favor of the plaintiff at some future time The property does not belong to the plaintiff but to the defendant Available even if recovery of property is only incidental to the relief sought May be resorted to even if property is in possession of a third person
Can be availed of even if property is in custodia legis Available from Available before commencement but defendant before entry of answers judgment Bond is double the Bond is fixed by the value of the court property Extends only to Extends to all kinds of personal property property whether real, capable of manual personal, or incorporeal delivery Attachment to recover Available to possession of personal recover personal property unjustly property even if detained presupposes the same is not that the same is being being concealed, concealed, removed, or removed, or disposed of to prevent disposed of its being found or taken by the applicant
D. REPLEVIN Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin. 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
Note: There can be no replevin and preliminary attachment in the same case because the purposes are different. 162
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(1) In Rule 57, it is for security (2) In Rule 60, it is for recovery of possession
(2) (3) (4) (5)
D.1 WHEN WRIT MAY BE ISSUED The provisional remedy of replevin is available where the principal purpose of the action is to recover the possession of personal property.
When Applied For A writ of replevin must be applied for: (1) At the commencement of the action, or (2) At any time before defendant files his answer
REMEDIAL LAW
Application must contain an affidavit Applicant must file a bond Approval of the bond by the court Court shall then issue an order and the writ of replevin: (a) It must describe the personal property alleged to be wrongfully detained (b) Requiring the sheriff to take such property into his custody
NOTE: The writ of replevin may be served anywhere in the Philippines.
Note: There can be no replevin before the appellate courts
D.3 AFFIDAVIT REDELIVERY BOND
AND
BOND;
Who May Avail (1) Plaintiff – where the complaint prays for recovery of possession of personal property (2) Defendant – where a counterclaim was set out in the answer for recovery of personal property
Contents of the Affidavit The affidavit shall: (1) Particularly describe the property
It is available to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained.
(3) State that the property is wrongfully detained by adverse party, allege the cause of detention according to his best knowledge, information, belief
D.2 REQUISITES
(4) State either (a) That the property has not been : (i) Distrained, (ii) Taken for a tax assessment, (iii) Taken as a fine pursuant to law, (iv) Seized under a writ of execution or preliminary attachment, or (v) otherwise under custodia legis (b) That, if the property is so taken, it is exempt from such seizure or custody.
(2) State that the applicant is: (a) the owner of the property claimed; or (b) entitled to possession
(1) Applicant is owner of the property claimed or is entitled to possession (2) Property is wrongfully detained by the adverse party (3) Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt) (4) Principal purpose of the action is to recover possession of personal property
(5) State the actual value of the property subject of replevin and not just its probable value.
Procedure [Rule 60, Sec. 2 and 3] (1) An application is filed at the commencement of the action or at any time before answer of defendant
Applicant’s Bond (1) Executed to the adverse party 163
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(2) Amount is DOUBLE the value of the property stated in the affidavit (3) Conditions of the Bond: (a) The return to of property to adverse party, if such return be adjudged, and (b) The payment to adverse party of such sum as he may recover from the applicant in the action
(3) After taking possession: (a) Keep the property in a secure place (b) He shall be responsible for delivery to party entitled Unlike a preliminary attachment and preliminary injunction, the rule on prior or contemporaneous jurisdiction is not provided for in replevin.
Return of Property [Sec. 5] If the adverse party does not object to the sufficiency of the bond, he may require the return of the property When: At any time before delivery to applicant How: By filing a redelivery bond
However, the rule requires that upon such order, the sheriff must serve a copy on the adverse party together with the required documents. A sheriff’s prerogative does not give him the liberty to determine who among the parties is entitled to possession.
Redelivery Bond This is executed to the applicant and filed where the action is pending o Amount: double the value of the property as stated in the affidavit of the applicant o Undertaking: (a) The delivery thereof to the applicant, if such delivery be adjudged, and (b) The payment of such sum to him as may be recovered against the adverse party
D.4 SHERIFF’S IMPLEMENTATION
DUTY
REMEDIAL LAW
When a writ is placed in the hands of a sheriff, it is his duty to proceed with reasonable celerity and promptness to execute it according to its mandate.
Disposition of Property by Sheriff The sheriff shall retain the property for 5 days. Within such period, the adverse party: (1) May object to the sufficiency of the applicant’s bond or surety; or (2) May file a redelivery bond, if he does not object to the sufficiency of the bond
IN
Duties of the Sheriff (Rule 60, Sec. 4) (1) Serve a copy of the order, together with the copies of the application, the affidavit, and bond to the adverse party
The adverse party is entitled to the return of the property taken under writ of replevin, if: (1) He seasonably posts a redelivery bond (2) The applicant’s bond is found to be insufficient or defective and is not replaced with a proper bond (3) The property is not delivered to the plaintiff for any reason
(2) Take the property: (a) If it be in the possession of the adverse party or his agent – Take the property into custody (b) If property is concealed in a building or enclosure: (i) Demand delivery of the property (ii) If not delivered, cause the building or enclosure to be broken open and then take the property into possession
D.5 WHEN PROPERTY CLAIMED BY THIRD PARTY Procedure Third party claiming the property must: 164
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(1) Make an affidavit of his title to the property, stating his grounds; (2) Serve such affidavit upon the sheriff while the latter has possession of the property; and (3) Serve a copy upon the applicant.
Effect The sheriff shall not be bound to keep property under replevin or deliver property to the applicant, unless the applicant files a bond approved by the court to indemnify the third person, in an amount not less than the value stated in the affidavit of the applicant. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action is filed within 120 days from filing of the bond.
Note: The procedure in Rule 60, Sec. 7 is similar to that in third-party claims in execution (Sec. 16, Rule 39) and in attachment (Sec. 14, Rule 57). Difference in Service of Affidavits: o Sec. 14, Rule 57 – affidavit is served upon the sheriff while he has possession of the attached property o Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 6)
D.6 JUDGMENT [Rule 60, Sec. 9] 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 in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs.
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A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES
PURPOSE
SUBJECT MATTER
Preliminary Attachment To have the property of adverse party attached as security for satisfaction of judgment that may be recovered in cases falling under Sec. 1, Rule 57 To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on creditor cannot be effected
Preliminary Injunction
Personal or real property
Particular act/s
Receivership
Replevin
To require a party or a court, agency, or a person to reframe from doing a To place the property particular act/s subject of an auction or proceeding under the control of a third party To recover possession of for its preservation and personal property administration pendente Or to require the performance of lite or as an aid to particular act/s execution
Personal or real property
At any time prior to At the commencement of satisfaction of judgment WHEN APPLIED/ action At any stage prior to final judgment or It may be availed of even GRANTED OR `At any time prior to entry final order after judgment becomes of judgment final under Sec. 41, Rule 39 File verified application and applicant’s File verified application bond and applicant’s bond HOW APPLIED File affidavits and applicant’s If application is included in initiatory Application may also be FOR bond pleading, adverse party should be served included in initiatory with summons together with a copy of pleading in actions for initiatory pleading and applicant’s bond foreclosure of mortgage Required EXCEPT: REQUIREMENT Not required Great or irreparable injury would result Required OF A HEARING May be issued ex parte or Extreme urgency and applicant will suffer grave injustice and irreparable 166
Personal capable delivery
of
property manual
At the commencement of the action BUT before the filing of answer
File affidavits applicant’s bond
and
Not Required May be issued ex parte
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injury (Sec. 5, Rule 58
WHO MAY GRANT
Courts where the action is pending, the CA or the SC even if action is pending in lower court
1. Sufficient cause of action 2. Case is covered by Sec. 1, Rule 57 3. No other sufficient security REQUISITES FOR for the claim exists GRANTING 4. Amount due to applicant or APPLICATION value of property he is entitled to recover is equal to the sum which the order of attachment is granted
Only the court where the action is pending Lower court, CA or SC provided action is pending in the same court which issues the injunction Also with the Sandiganbayan and CTA
1.
Applicant is entitled to relief demanded 2. Act/s complained of would work injustice to applicant if not enjoined 3. Acts sought to be enjoined probably violates applicant’s rights respecting the subject of the action or proceeding 4. Threatened injury incapable of pecuniary estimation
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Court where action is pending The CA or SC even if action is pending in the lower court Appellate court may allow application for receivership to be decided by the court of origin 1. Applicant has interest in property or fund, subject matter of action 2. Property or fund is in danger of being lost, or removed, or material injured 3. Appointment is the most convenient and feasible means of preserving, administering, disposing of property in litigation
Only the court action is pending
1.
were
Applicant is owner of the property claimed or is entitled to possession 2. Property is wrongfully detained by the adverse party 3. Property is not distrained or taken for tax assessment or fine pursuant to law, or seized (if seized, that the property is exempt)
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VIII. SPECIAL ACTIONS
CIVIL
Initiated by complaint
REMEDIAL LAW Some initiated by complaint, some by petition.
The Special Civil Actions (SCA) under the Rules of Court (1) SCAs initiated by complaints: (a) Interpleader (b) Foreclosure of Real Estate Mortgage (c) Forcible Entry and Unlawful Detainer (d) Partition (e) Expropriation
A. IN GENERAL B.
A.1 NATURE o Special civil actions are civil actions primarily governed by special rules, and secondarily by rules for ordinary civil actions. [See Rule I, sec. 3] o Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [RIANO]
(2) SCAs initiated by petitions: (a) Declaratory Relief (b) Review or Adjudication COMELEC/COA Decisions (c) Certiorari (d) Prohibition (e) Mandamus (f) Quo Warranto (g) Contempt
A.2 ORDINARY CIVIL ACTIONS V. SPECIAL CIVIL ACTIONS A special civil action is governed by the rules of ordinary civil actions but there are certain rules that are applicable only to special civil actions.
of
A.3 JURISDICTION AND VENUE o
ORDINARY ACTION
CIVIL SPECIAL CIVIL ACTION Also governed by ordinary rules but Governed by ordinary subject to specific rules rules prescribed [Rule 1, sec. 3] The concept of cause Must be based on a of action in an cause of action which ordinary action does means that the not always fit in a defendant has violated special civil action plaintiff’s rights (e.g. interpleader) Venue is determined by Venue is generally either the residences of governed by the the parties when action general rules on is personal or by the venue, except as location of the property otherwise indicated when the action is real. by special rules. [Rule 4, secs. 1 and 2] [REGALADO]
o
Jurisdiction over special civil actions is determined by the Constitution (art. VIII, sec. 5, for the Supreme Court) and statutes (e.g. B.P. Blg. 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 rules for special civil actions (e.g. quo warranto, see Rule 66, sec. 7).
Jurisdiction of inferior courts Special civil actions that can be filed in or are within the jurisdiction of the inferior courts (i.e. MTC, MeTC, MCTC): (1) Interpleader -- Provided that amount involved is within its jurisdiction (2) Ejectment suits – Original and exclusive (3) Contempt
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Application of hierarchy of courts In the absence of special reasons, the SC will decline to exercise original jurisdiction in certiorari, prohibition, and mandamus since it is not a trier of facts and, that is a function which can be better done by the trial courts. The same rule applies for quo warranto wherein the SC has concurrent jurisdiction with the RTC. [REGALADO, citing Fisher v. Yangco Steamship Co. (1915) and Veraguth v. Isabela Sugar Co. (1932)]
REMEDIAL LAW
INTERPLEADER v. INTERVENTION
B. INTERPLEADER B.1 NATURE o A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC (1969)] o The peculiar characteristic of an interpleader is that there is NO CAUSE OF ACTION on the part of the plaintiff but only a threat of cause of action.
INTERPLEADER
INTERVENTION
Original action
Ancillary action, i.e. there is a pending action
Plaintiff either has (a) no interest or (b) an interest in the subject matter undisputed by the other parties
Intervenor claims an interest that is adverse to at least one of the existing parties, or will be adversely affected by judgment in favor of either of the existing parties
Defendants to a Defendants are sued complaint-into be impleaded intervention are parties to a pending suit
B.2 REQUISITES FOR INTERPLEADER (1) The plaintiff clams no interest in the subject matter or his claim thereto is not disputed (2) The parties to be interpleaded must make effective claims (3) There must be at least two conflicting claimants with adverse or conflicting interests to a property in custody or possession of the plaintiff; and (4) The subject matter must be one and the same. [see Lim v. Continental Dev’t Corp. (1976)]
PURPOSES (1) To compel conflicting claimants to interplead and litigate their several claims among themselves. [Rule 62, Sec. 1] (2) To protect a person against double vexation in respect of one liability [Beltran, supra]
N.B. o Interpleader applies regardless of nature of subject matter. [Wack Wack Golf & Country Club v. Lee Won (1976), interpreting RULES OF COURT (1964), Rule 63, sec. 1, which was virtually unchanged by the now Rule 62, sec. 1] o Interpleader cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an 169
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ordinary action for specific performance or other relief [Beltran, supra].
REMEDIAL LAW 5 days in any event from notice of denial.
B.3 WHEN TO FILE
(5) From service of Answer, the claimants may file their Reply serving copies to all parties. Parties may file counterclaims, crossclaims, third-party complaints, responsive pleadings
When to File: Within a reasonable time. 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, supra]
EFFECT OF FAILURE TO ANSWER: Default. (a) The claimant may be declared, on motion, in default (b) Unlike ordinary default, default in interpleader allows the court to render judgment barring him from any claim in respect to the subject matter
Who Files the Complaint: A complaint for interpleader is filed by the person against whom the conflicting claims are made Jurisdiction and Venue: General rules on jurisdiction and venue apply as in ordinary civil actions. Hence, first-level courts have jurisdiction where the amount is within the limit. [see Makati Dev’t Corp. v. Tanjuatco (1969)]
(6) Pre-trial is conducted. (7) After all pleadings have been fled, the court shall then determine the respective rights and adjudicate their several claims (Sec. 6)
PROCEDURE (1) A complaint is filed. (2) Upon filing of complaint, the court issues an Order (Sec. 2) requiring conflicting claimants to interplead with one another (3) Summons shall then be served upon the conflicting claimants with a copy of the complaint and the order to interplead (Sec. 3). (4) Each claimant has a 15-day period to file any of the following (Sec. 5) (a) Answer, which must also be served upon the other conflicting claimants. (b) Motion to dismiss (Sec. 4). If filed, period to answer is o Grounds: (1) Same as in Rule 16, plus (2) Impropriety of interpleader action o If motion is denied, movant may file his answer within the remaining period but it shall not be less than
C. DECLARATORY SIMILAR REMEDIES
RELIEFS
AND
C.1 Nature o Subject matter: Deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance o Issue is the validity or construction of the subject matter. This is the only question that may be raised in declaratory relief. [Atlas Consolidated Mining & Dev’t Corp. v. CA (1990)] o Relief: Declaration of the petitioner’s rights and duties o Purpose: To relieve the litigants of the common law rule that no declaration of rights may be judicially adjudged unless a right has been violated and for the violation of which relief may be granted.
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CHARACTERISTICS o The concept of a cause of action does not strictly apply to declaratory relief since this SCA presupposes that there has been no breach or violation of the instruments involved. However, a breach or violation must be impending, imminent, or at least threatened. [Velarde v. Social Justice Society (2004)] o Hence, unlike other judgments, judgment in an action for declaratory relief does not essentially entail any execution process. [REGALADO]
REMEDIAL LAW
WHERE TO FILE Jurisdiction: Exclusive and original jurisdiction is with the RTC (BP Blg. 129, sec. 19, i.e. incapable of pecuniary estimation). SC has no original jurisdiction over declaratory relief petitions, but has appellate jurisdiction over them. [Liga ng mga Barangay National v. City Mayor of Manila (2004)] Venue: General rule on venue applies.
C.3 Requisites Of Action For Declaratory Relief (1) Subject matter of controversy must be a deed, will, contract, or other written instrument, statute, executive order or regulation, or ordinance. The enumeration is exclusive. [Vda. de Aviles v. CA (1996) (2) Actual justiciable controversy or “ripening seeds” of one between person whose interests are adverse (3) No breach of documents in question (4) Doubtful as to the terms and validity of the document and require judicial construction (5) Issue is ripe for judicial determination, as where all administrative remedies have been exhausted (6) Adequate relief is not available through other means or other forms of action or proceeding [REGALADO]
C.2 Who May File The Action [Rule 63, Sec. 1] (1) Any person interested under a deed, will, contract or other written instrument, before a breach thereof. (2) Any person whose rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental regulation, before a violation thereof.
PARTIES (1) All persons who have or claim any interest which would be affected by the declaration [Rule 63, Sec. 2] (2) If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63, Sec. 3] (3) If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63, Sec. 4]
C.4 When Court May Refuse To Make Judicial Declaration Court has discretion to refuse, motu proprio or on motion, to grant Declaratory Relief when: 1. The decision will not terminate the controversy or uncertainty giving rise to the action; or 2. The declaration or constitution is not necessary and proper under the circumstances. (Rule 63, Sec. 5)
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 (1983)]
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C.5 Conversion To Ordinary Action
REMEDIAL LAW
D. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA
[Rule 63, Sec. 6] When proper: If before the final termination of the case, a breach or violation of the instrument or status occurs. Then, petition is converted into an ordinary action.
SCOPE (Rule 64, Sec. 1) o Applicable only to judgments and final orders of the COMELEC and COA [Rule 64, Sec. 1] o This new rule is based on the provisions of CONST. art. IX-A, sec. 7, which states that “[u]nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari within thirty days from receipt of a copy thereof.” Hence, judgments/orders of the Civil Service Commission are now reviewable by the CA under Rule 43, eliminating recourse to the SC. [R.A. No. 7902; SC Revised Administrative Circular No. 1-95]
Effect of Conversion: Parties shall be allowed to file such pleadings as may be necessary or proper. N.B. If there has been breach or violation BEFORE filing of the petition, declaratory relief cannot be availed of.
C.6 Proceedings Considered As Similar Remedies Actions similar to Declaratory Relief and may be brought under Rule 63: (may be filed with the MTC) (1) Action for reformation (See Art. 13591369 Civil Code) (2) Action to quiet title or remove cloud (See Art. 476-481 Civil Code) (3) Action to consolidate ownership (See Art. 1607 Civil Code)
D.1 APPLICATION OF RULE 65 UNDER RULE 64 The aggrieved party may bring a judgment or final order or resolution of the COMELEC and COA to the SC on certiorari under Rule 65 and not on appeal by certiorari under Rule 45. [Rule 64, sec. 2] o Note: The petition should be filed EXCLUSIVELY with the SC. o Certiorari is the mode of review. Rule 65 is followed unless it conflicts with particular rules under Rule 64.
These remedies are considered similar to declaratory relief because they also result in the adjudication of the legal rights of the litigants often without the need of execution to carry the judgment into effect. [Malana v. Tappa (2009)] However distinction must be made between: (1) Cases similar to declaratory relief, where the court is BOUND to render judgment; and (2) Actions for declaratory relief, where the court MAY REFUSE to exercise the power to declare rights and to construe instruments.
SPECIAL RULES UNDER RULE 64 o Reglementary Period: The petition should be filed within 30 days from notice of judgment or final order or resolution sought to be reviewed. This follows the express provision of the Constitution, and is different from Rule 65 which provides for 60 days.
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D.2 DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS
Interruption of the 30-day period: Filing of MFR or MNT, if allowed under the procedural rules of the Commission, shall interrupt the 30-day period. If denied, aggrieved party may file petition within the remaining period but it shall not be less than 5 days in any event from notice of denial. [Rule 64, sec. 3] Note: The Fresh Period Rule is NOT applicable. Its application to Rule 65 cannot be automatically extended because Rule 64, sec. 3 is a special rule. In the case of COMELEC decisions, the Court has chosen not to extend it in view of the Constitutional policy of prompt resolution of election cases. [Pates v. COMELEC (2009)]
RULE 64
RULE 65
Directed only to the judgments, final orders or resolutions of COMELEC and COA
Directed to any tribunal, board, or officer exercising judicial or quasijudicial functions
Filed within 30 days Filed within 60 days from notice of the from notice of the judgment judgment Fresh period rule does not apply. Rule 64, Fresh period rule sec. 3 (supra) is applies applicable.
PROCEDURE (1) A verified petition is filed (Sec. 5) with payment of docket and lawful fees (Sec. 4) (2) Service of petition to the Commission and parties concerned (Sec. 5) (3) SC shall act on the petition: (a) It may dismiss the petition: (i) Due to failure to comply with the form and content requirements in Sec. 5; (ii) If SC finds the petition insufficient in form and substance (Sec. 6); (iii) If it was filed manifestly for delay (Sec. 6); or (iv) Questions raised are too unsubstantial to warrant proceedings (Sec. 6). (b) If sufficient in form and substance, the SC will require the respondents to file their Comments (Sec. 6) within 10 days from notice (4) SC may also require oral argument or submission of memoranda (Sec. 9) (5) The case is then submitted for decision (Sec. 9)
E. CERTIORARI, MANDAMUS
PROHIBITION,
E.1 DEFINITIONS AND DISTINCTIONS Certiorari is a writ emanating from a superior court directed against an inferior court, tribunal, 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. [Rule 65, sec. 1]
Prohibition is a writ issued by a superior court and directed against an inferior court, board, officer or other person whether exercising judicial, quasi-judicial, or ministerial functions for the purpose of preventing or restraining the latter from usurping jurisdiction with which it is not legally vested. [See Rule 65, sec. 2]
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Mandamus is a writ issued in the name of the State, to an inferior tribunal, corporation, board, or person, commanding the performance of an
REMEDIAL LAW
act which the law enjoins as a duty resulting from an office, trust, or station. [Rule 65, sec. 3]
CERTIORARI PROHIBITION Directed against an entity or Directed against an entity or person person exercising judicial or exercising judicial, quasi-judicial, or quasi-judicial functions ministerial functions
MANDAMUS Directed against an entity or person exercising ministerial functions Entity or person is alleged Entity or person is alleged to have acted: to have: (1) Without jurisdiction (1) Neglected a ministerial (2) In excess of jurisdiction; or duty; or (3) With grave abuse of discretion amounting to lack or excess of (2) Excluded another from a jurisdiction right or office PURPOSE: PURPOSE: PURPOSE For respondent to: (1) do the To have respondent desist from To annul or nullify a proceeding act required, and (2) pay further proceeding damages Covers discretionary and ministerial Covers Covers discretionary acts acts ministerial acts Corrective remedy: Negative and preventive remedy May be affirmative, positive, To correct usurpation of To restrain or prevent the said or negative jurisdiction usurpation
E.1.1 CERTIORARI AS A MODE OF APPEAL AND AS A SPECIAL CIVIL ACTION CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION (Rule 65) (Rule 45) A continuation of the appellate process An original action and not a mode of appeal over the original case May be directed against an interlocutory order of the Seeks to review final judgment or final court or where no appeal or plain or speedy remedy is orders available in the ordinary course of law Raises questions of jurisdiction, i.e. whether a tribunal, board or officer exercising judicial or quasi-judicial Raises only questions of law functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction Filed within 15 days from notice of Filed not later than 60 days from notice of judgment, judgment or final order appealed from, or order, or resolution sought to be assailed. In case a of the denial of petitioner’s motion for motion for reconsideration or new trial is timely filed, the reconsideration or new trial. 60-day period is counted from notice of said denial. Extension of 30 days may be granted for Extension granted only under exceptional cases (infra). 174
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justifiable reasons. Does not require a prior motion for reconsideration Stays the judgment appealed from
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Motion for reconsideration is a condition precedent, subject to exceptions Does not stay the judgment or order subject of the petition, unless enjoined or restrained
Parties are the original parties with the appealing party as the petitioner and the The tribunal, board, or officer, exercising judicial or adverse party as the respondent, without quasi-judicial functions is impleaded as respondent impleading the lower court or its judge Filed only with the SC May be filed with the SC, CA, Sandiganbayan, or RTC If the order is sufficient in form and substance: The RTC shall (1) order respondents to comment, Review by the SC is discretionary and will and then (2)(a) hear the case or (2)(b) require the be granted only when there are special or parties to file memoranda. important reasons. [Rule 45, sec. 6] But the SC/CA may require a comment before giving the petition due course.
E.1.2 PROHIBITION AND MANDAMUS, DISTINGUISHED FROM INJUNCTION INJUNCTION Ordinary civil action Directed only to the party litigants, without in any manner interfering with the court
PROHIBITION Special civil action Directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim
INJUNCTION
MANDAMUS Ordinary civil action Special civil action Directed against a tribunal, corporation, Directed against a litigant board, or officer Purpose is to either refrain the defendant from Purpose is for the tribunal, corporation, performing an act or to perform not necessarily a legal board, or officer, to perform a ministerial and ministerial duty and legal duty
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E.2 REQUISITES Requisites of Certiorari:
REMEDIAL LAW
(3) There is no other plain, speedy, and adequate remedy in the ordinary course of law.
(1) Respondent is exercising judicial or quasi-judicial function (2) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (3) There must be no appeal or other plain, speedy, and adequate remedy [Barbers v. COMELEC (2005)] Requisites of Prohibition: (1) Respondent is exercising judicial, quasijudicial, or ministerial functions (2) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (3) There must be no appeal or other plain, speedy, and adequate remedy [Barbers, supra]
Requisites of Mandamus: (1) There must be a well-defined, clear legal right or duty. [Valmonte v. Belmonte (1989)] o The duty must be enjoined by law; hence, a contractual duty cannot be enforced by mandamus. [Province of Pangasinan v. Reparations Commission (1977)] (2) Respondent must be exercising a ministerial duty. [Roble Arrastre, Inc. v. Villaflor (2006)] o A duty which is absolute and imperative and involves merely its execution o However, mandamus “will lie to compel the discharge of the discretionary duty itself but not to control the discretion to be exercised. In other words, mandamus can issue to require action only but not specific action.” [Assoc. of Small Landowners in the Phils., Inc. v. Sec. of Agrarian Reform (1989)]
DISCRETIONARY ACT
MINISTERIAL ACT
One where public functionaries, by virtue of a power or right conferred upon them by law, can act officially under certain circumstances, uncontrolled by the judgment or conscience of others
One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done [Roble Arrastre, Inc. v. Villaflor (2006)]
E.3 WHEN PETITION FOR CERTIORARI, PROHIBITION, AND MANDAMUS IS PROPER N.B. 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.
WHEN PETITION FOR CERTIORARI IS PROPER o Only to correct errors of jurisdiction, not errors of judgment. o Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. [Suarez v. NLRC (1998)] General rule: Where appeal is available, certiorari will not lie. [Jose v. Zulueta (1961)] Exceptions:
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(1) Where the appeal does not constitute a speedy and adequate remedy (2) Where orders were also issued either in excess or without jurisdiction (3) For certain special considerations, as public welfare or public policy (4) Where, in criminal actions, the court rejects the rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (5) Where the order is a patent nullity (6) Where the decision in the certiorari case will avoid future litigations [Villarica Pawnshop v. Gernale (2009)
REMEDIAL LAW
ministerial duty, this being its main objective. o A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. o However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [REGALADO]
WHEN PETITION FOR PROHIBITION IS PROPER o 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 writ of preliminary injuction. [REGALADO] o 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. [HERRERA]
Grounds for Mandamus: (1) When any tribunal, corporation, board, officer or person, UNLAWFULLY NEGLECTS the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. (2) When any tribunal, corporation, board, officer, or person, UNLAWFULLY EXCLUDES another from the due and enjoyment of a right or office to which the other is entitled. [Rule 65, sec. 3]
E.4 INJUNCTIVE RELIEF General Rule: Prohibition does NOT ordinarily lie to restrain an act which is already fait accompli.
Independent Action An original action for Certiorari, Prohibition, or Mandamus is an independent action, and as such: (1) Does not interrupt the course of the principal action; (2) Does not affect the running of the reglementary periods involved in the proceedings; (3) Does not stay the execution of judgment unless a TRO or writ of preliminary injunction has been issued. [see Rule 65, sec. 7]
Exception: 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 commission of such illegality [Tan v. COMELEC (1986)] WHEN PETITION FOR MANDAMUS PROPER o The purpose of mandamus is to compel the performance, when refused, of a
Injunctive Relief
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General Rule: The mere elevation of an interlocutory matter through a petition for certiorari does not by itself merit a suspension of the proceedings before a public respondent, applying Rule 65, sec. 7. o The public respondent shall proceed with the principal case WITHIN 10 DAYS from filing of the petition for certiorari with the higher court, absent a TRO or preliminary injunction, or upon its expiration. Failure may be a ground for an administrative charge [AM No. 07-712-SC]
(3)
(4)
(5)
Exceptions: (1) When a writ of preliminary injunction or TRO is issued: The burden is on petitioner to show that there are meritorious grounds, i.e. there is an urgent necessity in order to prevent serious damage; or (2) Judicial courtesy: Even if there is no injunction issued, lower court should defer to higher court where 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” court of origin. [Republic v. Sandiganbayan (2006)]
(6)
(7)
(8)
(9)
REMEDIAL LAW passed upon by the lower court, or are the same as those raised and passed upon in the lower court Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government Where under the circumstances, an MR would be useless, as where the court had already indicated that it would deny any motion for reconsideration of its questioned order Where petitioner was deprived of due process and there is extreme urgency for relief Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable Where the proceedings in the lower court are a nullity for lack of due process Where the proceeding was ex parte or in which the petitioner had no opportunity to object Where the issue raised is one purely of law or where public interest is involved
Where the subject matter of the action is perishable [Ombudsman v. Laja (2006)]
E.6 RELIEFS PETITIONER IS ENTITLED TO
E.5 EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE FILING PETITION
RELIEFS, IN GENERAL Petitioner may be entitled to: (1) Injunctive relief – Court may may 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 [Rule 65, sec. 7] (2) Incidental reliefs as law and justice may require [Rule 65, secs. 1 and 2] (3) Other reliefs prayed for or to which the petitioner is entitled [Rule 65, sec. 8]
General Rule: An MR 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 Exceptions: MR may be dispensed with in some cases: (1) Where the order is a patent nullity (2) Where questions raised in the certiorari proceeding have been duly raised and 178
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PRAYERS (1) In 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 [Rule 65, sec. 1] (2) In 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 [Rule 65, sec. 2] (3) In 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 [Rule 65, sec. 3]
REMEDIAL LAW
(a) Certified true copy of the judgment, order, resolution subject thereof (b) Copies of all pleadings and relevant and pertinent documents (c) Sworn certification of non-forum shopping (2) Contents of the petition (a) Allegation of facts with certainty Prayer
ACQUISITION OF JURISDICTION In original actions for Certiorari, Prohibition, Mandamus, when does the court acquire jurisdiction over the person of the respondent? It depends: (1) If action is filed with the RTC: Follow rules on ordinary civil actions. Jurisdiction is acquired by: (a) Service of summons to respondent or (b) By his voluntary appearance in court (2) If the action is filed with the SC/CA: Court acquires jurisdiction over respondents by: (a) Service on them of its orders indicating its initial action on the petition or (b) By their voluntary submission to such jurisdiction
E.7 ACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES
PROCEDURE A petition for certiorari/ prohibition is filed
In election cases involving an act or an omission of a municipal or regional trial court, the petition [for certiorari, prohibition, or mandamus] shall be filed EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction [Rule 65, sec. 4, par. 3 as amended by AM No. 07-7-12-SC (2007)]
mandamus/
When filed: (a) Not later than 60 days from notice of judgment/order/resolution (b) If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion.
E.8 WHEN AND WHERE TO FILE PETITION
Rule on Extension of Time for Filing: General Rule: The sixty (60)-day period within which to file a petition for certiorari under Rule 65 is non-extendible.
Petition And Contents (1) A verified petition is filed in the proper court accompanied by:
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Exceptions: Under the following exceptional circumstances, the Court may extend the period according to its sound discretion: (1) Most persuasive and weighty reasons; (2) To relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; (3) Good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; (4) The existence of special or compelling circumstances; (5) The merits of the case; (6) A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (7) A lack of any showing that the review sought is merely frivolous and dilatory; (8) The other party will not be unjustly prejudiced thereby; (9) Fraud, accident, mistake or excusable negligence without appellant's fault; (10) Peculiar legal and equitable circumstances
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(2) A PUBLIC OFFICER who does or suffers an act, which, by 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 to act. [Rule 66, Sec. 1]
JURISDICTION (1) Original jurisdiction to issue the writ of quo warranto is vested in the SC, CA, and RTC. [CONST. art. VIII, sec. 5(1); B.P. Blg. 129, secs. 9 and 21] (2) Actions for quo warranto against corporations (as opposed to associations without authority) with regard to franchises and rights granted to them, as well as the dissolution of corporations now fall under the jurisdiction of the RTC [P.D. No. 902-A, in relation to R.A. No.
8799, sec. 5.2. SEC. REG. CODE, sec. 5.2.; Unilongo v. CA (1999)] (3) Usurpation of an office in a private corporation falls under the jurisdiction of the SEC under P.D. No. 902-A, in relation to R.A. No. 8799, sec. 5.2.
F. QUO WARRANTO F.1. NATURE Literally means “by what authority”; 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.
F.3. DISTINGUISHED FROM QUO WARRANTO IN THE OMNIBUS ELECTION CODE ROC Rule 66
When the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other direct proceeding.
OEC Sec. 253
Filed by whom (11) Solicitor General or Public Prosecutor, (a) in behalf of the Republic [Rule 66, sec. 2] or (b) upon the request or Any voter relation of another person [sec. 3]; or (12) Individual claiming to be entitled to a public office or position
Subject Matter: The subject matter of a quo warranto may be a public office, franchise, or position.
F.2. 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; 180
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F.4. WHEN GOVERNMENT MAY COMMENCE AN ACTION AGAINST INDIVIDUALS
usurped or unlawfully held or exercised by another [sec. 5] Where filed [Jurisdiction] (1) If against election of a [Venue] Member of (1) Commenced by Congress, Sol. Gen.: (a) RTC Regional, Manila, (b) CA or Provincial or (c) SC; City Officer: (2) Otherwise: (a) RTC COMELEC with jurisdiction (2) If against a over territorial municipal or area where barangay respondent officer: resides, (b) CA or appropriate (c) SC RTC or MTC, respectively.
The Government, through the Solicitor General or public prosecutor commences the action for quo warranto. (1) Mandatory: When to commence: (a) When directed by the President; OR (b) When upon complaint or otherwise he has good reason to believe that any case in sec. 1 [supra] can be established by proof. [sec. 2] (2) Discretionary: When to commence: (a) Upon permission of the court; AND (b) At the request and upon the relation of another person [ex relatione], provided officer bringing it may require an indemnity bond.
F.5. WHEN INDIVIDUAL COMMENCE AN ACTION
Period for filing Within 1 year from Within 10 days ouster or from the after proclamation time the right to the of results position arose. [sec. 11] Grounds (against occupants of public offices) (1) A person, who usurps, intrudes into or unlawfully holds or exercises a public office, position or franchise; (1) Ineligibility; or (2) A public officer, (2) Disloyalty to who does or the Republic suffers an act which, by provision of law, constitutes a ground for forfeiture of office. [sec. 1]
MAY
An individual may commence the action if he claims to be entitled to the office or position usurped or unlawfully held or exercised by another. (1) He may institute the action in his own name. [Sec. 5] (a) He does not have to secure the intervention of the Solicitor General or public prosecutor. (b) No leave of court necessary. (2) He must aver and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage. [General v. Urro (2011)]
F.6. PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED Period to File: The action must be commenced within 1 year from the date after the cause of such ouster or the right of the petitioner to hold such office or position arose. [sec. 11]
In sum, Rule 66 applies to quo warranto IN GENERAL while election law governs quo warranto against SPECIFIED elective officials.
Laches does not attach and failure to file quo-warranto proceedings does not operate 181
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adversely against a dismissed government employee where it was the act of responsible government official which contributed in the delay of filing of complaint for reinstatement [Cristobal v. Melchor (1980)]
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petitioner’s right to the office in question [sec. 11]
G. EXPROPRIATION G.1. NATURE
Reduction of Period: The court may reduce the period for filing and for all other proceedings in the action to secure most expeditious determination of the matters involved therein, consistent with the rights of the parties. [sec. 8]
Eminent Domain is the right and authority of the State, as sovereign, to take private property for public use upon observance of due process and payment of just compensation. It is in the nature of a compulsory sale to the State.
F.7. JUDGMENT IN QUO WARRANTO ACTION
G.2. REQUISITES FOR THE VALID EXERCISE OF THE RIGHT
When respondent is found guilty of usurping, intruding, or unlawfully holding or exercising a public office, judgment shall be rendered: (1) That such respondent is ousted and altogether excluded therefrom; and (2) That petitioner or relator, as the case may be, recover his costs; and (3) (Court may further determine the respective rights in and to the public office, position, or franchise of all parties.) [sec. 9]
(a) (b) (c) (d) (e)
The property must be private There must be due process of law Payment of just compensation Taking must be for public use There must be genuine necessity [Manapat v. CA (2007)]
G.3. MATTERS TO ALLEGE COMPLAINT FOR EXPROPRIATION
IN
Contents of the Complaint: The complaint shall (1) State with certainty the right and purpose of expropriation N.B. Where the right of the plaintiff to expropriate is conferred by law, complaint does not have to state with certainty the right of expropriation [Manila Railroad Co. v. Mitchel (1923)] (2) Describe the real or personal property sought to be expropriated (3) Join defendants All persons owning or claiming to own, or occupying, any part thereof or interest therein, showing separate interest of each defendant, as far as practicable (4) Make the following averments, if needed: (a) If title appears to be in the Republic, although occupied by private individuals
F.8. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Rights of persons adjudged entitled to office [sec. 10]: (1) Execution of the office After taking oath of office and executing any official bond required by the law (2) Demand from respondent all the books and papers appertaining to the office to which judgment relates Respondent’s neglect or refusal to comply with the demand is punishable by contempt (3) Bring an action for damages against respondent for damages sustained by him by reason of the usurpation. Must be commenced within 1 year after entry of judgment establishing
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Preliminary deposit [Rule 67, sec. 2]:
(b) If title is otherwise obscure or doubtful so that plaintiff cannot with accuracy or certainty specify who the real owners are [Rule 67, sec. 1]
Where to File: RTC where property is located. MTC has no jurisdiction since an action for expropriation is incapable of pecuniary estimation. [Barangay San Roque v. Heirs of Pastor (2000)]
Purposes
Provide damages if court finds that the plaintiff has no right to expropriate Advance payment for just compensation, if property is finally expropriated [Visayan Refining Co. v. Camus (1919)] If Real Property: Equivalent to the assessed value of the property for purposes of taxation. If Personal Property: Value shall be provisionally ascertained and fixed by the court.
G.4. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
Value
(First Stage) Propriety of Expropriation: 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. This ends with either: (1) An order of dismissal, or (2) An order of expropriation
Where to depositary. (Amount is to be held deposit by such bank subject to the
With the authorized government
orders of the court.) General Rule: Money. Exception: In lieu of money, court Form of authorizes deposit of a certificate of deposit of a government bank Deposit of the Republic, payable on demand to the authorized government depositary.
(Second Stage) Just Compensation: Determination of the just compensation for the property sought to be taken. N.B. Multiple appeals are allowed in expropriation. Aggrieved party may appeal in each stage separately.
After the deposit, court shall order sheriff or proper officer to place plaintiff in possession of the property. Such officer shall promptly submit a report to the court with service of copies to parties.
G.5. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A. NO. 8974
NOTE: Preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institution of the action. Otherwise, he could always wait until the order of expropriation is issued before it enters upon the land.
Plaintiff shall have the right to take or enter upon possession of the real property upon: (1) Filing of complaint or at any time thereafter, and after due notice to defendant (2) Making preliminary deposit [Rule 67, sec. 2]
Once the preliminary deposit has been made, the expropriator is entitled to a writ of possession as a matter of right, and the issuance of said writ becomes ministerial on the part of the trial court. [Biglang-Awa v. Bacalla (2000)]
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Republic Act No. 8974 (2000): An Act to Facilitate the Acquisition of Rightof-Way, Site or Location for National Government Infrastructure Projects and for Other Purposes
RULE 67, SEC. 2
Scope
Expropriation in general, for both real and personal properties
Government For writ of is required to possession make to issue preliminary deposit
Equal to assessed Amount of value of real payment or property for deposit purposes of taxation
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Applicable Special Laws: (1) R.A. No. 8974 specifically governs expropriation for national government infrastructure projects (2) Local Gov’t Code, sec. 19 governs the exercise of the power of eminent domain by LGUs through an enabling ordinance
RA 8974 Only when national government expropriates real property for national government infrastructure projects Government is required to make immediate payment to owner upon filing of complaint Equal to the market value of the property as stated in the tax declaration or current relevant zonal value of BIR, whichever is higher, and value of improvements and/or structures using replacement cost method
G.6. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of: (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) The value of the improvements and/or structures as determined under Sec. 7 of R.A. 8974, supra [RA 8974, sec. 4]
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G.7. DEFENSES [RULE 67, SEC. 3] No Objection to or Defense against Taking
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AND
OBJECTIONS
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Effect of failure to file answer: Failure to file answer does not produce all consequences of default as in ordinary civil actions: (1) There is default as to the first stage of expropriation, supra; but (2) Said judgment is without prejudice to the second stage, i.e. defendant still has the right to present evidence on the just compensation and to share in the distribution of the award. [See Robern
With Objection to or Defense against Taking
What to file and serve Notice of Answer to the appearance and complaint manifestation Period to file Time stated in the summons Contents (1) Specifically designating/iden tifying the (1) Manifestation to property in which the effect that he he claims to have has no objection an interest in; or defense; (2) Nature and (2) Specifically extent of the designating/ide interest; and ntifying the (3) ALL his property in objections and which he claims defenses to the to be interested complaint or any allegation therein Prohibited Counterclaim, crossclaim, third party complaint in any pleading
Development Corporation v. Quitain (1999)]
G.8. ORDER OF [RULE 67, SEC. 4]
EXPROPRIATION
Order of Expropriation: It is the order declaring that the plaintiff has lawful right to take the property. When Issued: It is issued when: (1) Objections or defenses against the right of plaintiff to expropriate are overruled; or (2) No party appears to defend the case Contents of the Order: That the plaintiff has a lawful right to take the property sought to be expropriated: (1) For the public use or purpose described in the complaint; and (2) Upon payment of just compensation (a) To be determined as of the date of taking, or (b) The filing of the complaint, whichever came first.
Amended answers: A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof.
Remedy of Defendant: Order of condemnation is final, not interlocutory. Hence, it is appealable. N.B. Appeal shall not prevent court a quo from determining just compensation.
Just compensation may be proven with or without objections/defense, and whether or not defendant appeared/answered: In any case, in the determination of just compensation, defendant may present evidence as to the amount of compensation to be paid. 185
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Effects of the Order: (1) Plaintiff not permitted to dismiss or discontinue the proceeding, except on such terms as the court deems just and equitable; and (2) Order forecloses any further objections to the right to expropriate, including the public purpose of the same. [Robern
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Market Value: “Sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore.” [BPI v. CA (2004)] Time when market value should be fixed: (1) When plaintiff takes possession before institution of proceedings: value fixed as of TIME OF TAKING; or (2) When the taking coincides with or subsequent to the commencement of proceedings: value fixed as of DATE OF FILING of the complaint
Development Corporation v. Quitain (1999)]
G.9. ASCERTAINMENT OF JUST COMPENSATION [RULE 67, SEC. 5] Upon rendition of the Order of Expropriation, the court issues an Order of Appointment.
G.10. APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON REPORT
Order of Appointment: (1) Court appoints not more than 3 commissioners to ascertain and report to the court the just compensation for the property (2) Contents: Order shall (a) Designate the time and place of the first session of hearing to be held by commissioner (b) Specify the time within which their report shall be submitted to court (3) Procedures: (a) Copies of the Order shall be served on the parties (4) Objections to appointment: (a) Filed with the court within 10 days from service (b) Objections shall be served to all commissioners (c) Resolved within 30 days after all commissioners shall have received copies
Qualifications of the Commissioners: Must be (1) Competent; and (2) Disinterested Proceedings by Commissioners [Rule 67, Sec. 6] (1) Oath: Commissioners shall first take and subscribe an oath that they will faithfully perform their duties. Oath shall be filed in court together with other proceedings. (2) Introduction of evidence: Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them Duties of Commissioners: Commissioners shall: (1) View and examine the property sought to be expropriated and its surroundings, and may measure the same. (a) Parties may agree not to have the property inspected. (b) Due notice to parties to attend must first be given. (c) After this, each party may argue the case.
Just Compensation: The full and fair equivalent of the property taken from its owner by the expropriator. Just compensation means not only (1) the correct determination of the amount to be paid but also the (2) payment of the land within a reasonable time from its taking. [Land Bank of the Phils. v. Obias (2012)]
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(2) Assess the consequential damages to the property not taken and deduct from such the consequential benefits to be derived by owner. (a) Consequential benefits are those proximately resulting from the improvements consequent to the expropriation and accruing to the remaining portion of the land. [REGALADO] (b) In no case shall the consequential benefits assessed exceed the consequential damages. [Sec. 6] (c) In no case shall the owner be deprived of the actual value of his property taken. [Sec. 6]
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(b) Recommit to commissioners for further report of facts, for cause shown; (c) Set aside the report and appoint new commissioners; OR (d) Accept the report in part and reject in part; AND (e) Make such order or render such judgment as shall secure the plaintiff (as to its right to expropriate) and the defendant (as to his right to just compensation)
G.11. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT [RULE 67, SEC. 10]
Report by Commissioners [Rule 67, Sec. 7] (1) Commissioners shall make a full and accurate report to the court of all their proceedings. (2) Such proceeding shall not be effectual until court has accepted their report and rendered judgment in accordance with their recommendations. (3) Report shall be filed within 60 days from date commissioners were notified of their appointment. Time may be extended by court discretion, (4) Upon filing, clerk shall serve copies of the Commissioners’ Report to all interested parties. Clerk includes a notice that parties are allowed to file objections to the report within 10 days from notice.
Rights: Either: (1) Right to retain: Applies when plaintiff immediately entered upon the property after making the required deposit (and therefore already has possession of the property), supra. (2) Right to enter and appropriate: Applies when plaintiff does not take immediate possession of the property. Appropriation must be for the public use or purpose defined in the judgment. Conditions for exercise: (1) Upon payment by plaintiff to defendant of compensation fixed by judgment, with legal interest from taking; or (2) After tender to defendant of the said amount and payment of the costs. N.B. If defendant or counsel absent themselves from the court or decline the amount tendered, the amount shall be deposited in court and shall have the effect of actual payment.
Action Upon Commissioners’ Report [Rule 67, Sec. 8] (1) When court renders judgment: Upon (a) Filing of objections to the report or of the agreement thereon of all interested parties; OR (b) Expiration of 10-day period to object from the report (2) Court may: (a) After hearing, accept the report and render judgment in accordance therewith;
G.12. EFFECT OF RECORDING JUDGMENT
OF
Contents of the Judgment (1) Statement of the particular property or interest therein expropriated, with adequate description; and 187
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(2) Nature of the public use or purpose for which it is expropriated. [Sec. 13] When title to property vests: (1) If personal property, upon payment of just compensation [Sec. 10] (2) If real property, upon (i) payment of just compensation and (ii) registration of property (by recording of the judgment in the registry of deeds where the property is situated.) [Sec. 13]
(2) (3)
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(a) Date and due execution of the real mortgage; (b) Date of the note or other documentary evidence of the obligation secured by the mortgage; Its assignments, if any; The following names and residences: (a) Of the mortgagor and mortgagee (b) Of all persons having or claiming an interest in the property subordinate in the right to that of the holder of the mortgage Description of the mortgaged property Amount claimed to be unpaid
H. FORECLOSURE OF REAL ESTATE MORTGAGE
(4) (5)
H.1. NATURE
Defendants in a judicial foreclosure: (1) Persons obliged to pay the mortgage debt (2) Persons who own, occupy, or control the mortgaged premises or any part thereof (3) Transferee or grantee of the property (4) Second mortgagee or junior encumbrancers or any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed to foreclose their equity of redemption But if the action is by the junior encumbrancer, first mortgagee MAY also be joined as defendant (5) Mortgagor even if not owner of the mortgaged property should be included (to satisfy the deficiency).
Foreclosure of Mortgage is a proceeding by which the mortgagee or his successors or one who has by law succeeded to the rights and liabilities of the mortgagee undertakes to dispose of, to ban, to cut-off the legal and equitable claims of lien holders or of the mortgagors or those who have succeeded to the rights and liabilities of the mortgagor. 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. Foreclosure may be made: (1) Judicially: governed by Rule 68 (2) Extrajudicially: proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 9910-05.
H.3. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE [RULE 68, SEC. 2] Judgment on Foreclosure is the judgment of the court ordering the debtor to pay within 90-120 days from entry of judgment after ascertaining the amount due to plaintiff.
H.2. COMPLAINT IN AN ACTION FOR FORECLOSURE [RULE 68, SEC. 1] Venue: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated.
Contents of judgment: If upon trial, the facts set forth in the complaint are true, the court shall: (1) Ascertain the amount due to the plaintiff upon the mortgage debt or obligation
Contents of the Complaint: (1) The following dates: 188
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including interests, other charges approved, and costs; (2) Render judgment for the sum so found due; (3) Order that the amount be paid to the court or to judgment obligee within a period of not less than 90 days but not more than 120 days from entry of judgment In default of such payment, property shall be sold at public auction to satisfy judgment
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operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. [Sec. 3] Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption. It retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v. Amores (1985)]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v. Botones (1951)] (e.g. by proof of irregularities therein, gross inadequacy of the price, lack of notice vitiates the confirmation of the sale). [REGALADO]
Multiple appeals: Multiple appeals are allowed under Rule 68. (1) Judgment of foreclosure is appealable. (2) Order confirming foreclosure sale is a final disposition with respect to the issue of validity and regularity of the sale. (3) Deficiency judgment is a disposition on the merits of the correctness of such award. [REGALADO]
Writ of Possession: Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property.
H.4. SALE OF MORTGAGED PROPERTY; EFFECT [RULE 68, SEC. 3] When proper: When Defendant fails to pay the amount of judgment within the period specified, the court shall order the property to be sold.
Exception: Third party is actually holding the same adversely to the judgment obligor.
How: By motion and under the provisions of Rule 39. It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified. A motion for such order of sale is nonlitigable and may be made ex parte. [Gov’t of the Phil. Islands v. De las Cajigas (1931)] Limitation: Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof.
H.5. DISPOSITION OF PROCEEDS OF SALE (1) Amount realized from the foreclosure sale, less costs of the sale, shall be paid to the person foreclosing. (2) When there is a balance or residue after paying the mortgage debt, the same shall be paid to junior encumbrancers in the order of priority as ascertained by the court. (3) If there are no junior encumbrancers, the residue goes to the mortgagor or his authorized agent, or any other person entitled to it. [Rule 68, Sec. 4]
Order of Confirmation: When confirmed by an order of the court, also upon motion, it shall 189
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H.6. DEFICIENCY JUDGMENT; INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT [RULE 68, SEC. 6]
REMEDIAL LAW
(4) If mortgagor is a third party mortgagor but not solidarily liable with debtor. [Phil. Trust Co. v. Tan Suisa (1929)] (a) No deficiency judgment may be rendered against owner who is not a mortgagor and has not assumed personal liability for the debt. (b) Remedy is ordinary action against debtor. (5) In case of a mortgage debt due from the estate of a deceased mortgagor and the mortgage creditor availed of the third remedy which is to rely upon his mortgage alone and foreclosing the same within the statute of limitations. [Rule 86, sec. 7] (6) When the deficiency arises under an extrajudicial foreclosure. The mortgagee can recover by action (not by motion) any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)]
Deficiency Judgment is judgment rendered by the court holding defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. [See sec. 6] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of
the Philippine Islands v. Torralba Vda. de Santos (1935)] N.B. If the debtor dies, the deficiency may be filed as a claim against his estate. [Rule 86, Sec. 7] How Done: (1) Judgment creditor files motion for deficiency judgment. (2) Court shall then render judgment against defendant for any such balance for which he may personally be liable to plaintiff. (3) Execution may then issue immediately if balance is all due at the time of rendition of judgment. If not, plaintiff shall be entitled to execution at such time as the balance remaining becomes due. [Sec. 6]
H.7. JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE Judicial Foreclosure Requires court intervention There is only an equity of redemption Governed by Rule 68
When deficiency judgment cannot be rendered: (1) Under the Recto Law [CIVIL CODE, art. 1484, par. 3]. (2) When mortgagor is a non-resident and is not found in the Philippines. (Rationale: The proceeding would be procedurally infeasible as a deficiency judgment is in personam, and under this situation, jurisdiction over the obligor cannot be had. [RIANO]) (3) When mortgagor dies, mortgagee may file his claim with the probate court. [Rule 86, sec. 7]
VS.
Extrajudicial Foreclosure No court intervention necessary Right of redemption exists Governed by Act 3135
No Deficiency There could be a Judgment because Deficiency there is no judicial Judgment. proceeding. Recovery of Recovery of deficiency deficiency can be is through an done by mere independent action. motion.
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H.8. EQUITY OF REDEMPTION VS. RIGHT OF REDEMPTION Equity of Redemption defendant mortgagor mortgage and retain property by paying the
REMEDIAL LAW
the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation
is the right of the to extinguish the ownership of the secured debt within
Equity Of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90 to 120 day period after entry of judgment or even after the foreclosure sale but prior to its confirmation Period is 90-120 days after entry of judgment or even after foreclosure sale but prior to confirmation Governed by Rule 68
Right Of Redemption Right of the debtor, his successor in interest, or any judicial creditor of said debtor or any person having a lien on the property subsequent to the mortgage. Period is 1 year from date of registration of certificate of sale Governed by Rule 39, sec. 29-31
Judicial Foreclosure
Extrajudicial Foreclosure
Mortgagor has a right to redeem the property No right of redemption, only equity of within one year from registration of the deed of redemption sale Exception: In case of extrajudicial foreclosure, juridical Exception: Mortgagor may exercise right of persons shall have the right to redeem until, but redemption within one year after the sale, when not after, the registration of the certificate of the loan or credit accommodation is granted by foreclosure sale with the Register of Deeds a bank. [General Banking Law (2000), sec. 47] which in no case shall be more than 3 months after foreclosure, whichever is earlier. [General Banking Law (2000), sec. 47] N.B. What Rule 68, secs. 2-3 provide for is the mortgagor’s EQUITY of redemption. This may be exercised by him even beyond the period to pay the judgment obligation (i.e. 90120 days) and even after the foreclosure sale itself, provided it be before the order of the confirmation of sale. [Rosales v. Alfonso (1999)]
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(3) When partition is prohibited by law (e.g. ACP, party wall); [CIVIL CODE, art. 494] (4) When the property is not subject to a physical division and to do so would render it unserviceable for the use for which is it intended; [CIVIL CODE, art. 495] or (5) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [CIVIL CODE, art. 1084]
I. PARTITION I.1. NATURE Partition is the process of dividing and assigning the property owned in common among the various co-owners thereof in proportion to their respective interests in said property. Partition may be: (1) Judicial – Procedure is Rule 69 (2) Extrajudicial – No court intervention required
I.4. WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS [RULE 69, SEC. 1]
The partition of property may be made voluntarily (by agreement) or compulsorily under the Rules. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property. [Sec. 12]
Who May File: A person having the right to compel partition of real estate, or of personal property, or both real and personal property [Sec. 1, Sec. 13]
An action for partition and accounting under Rule 69 is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant’s interest in a specific property and not to render a judgment against him.
Venue and Jurisdiction: An action for partition should be filed in the RTC of the province where the property or part thereof is situated. An action for partition is not a conveyance of property. [Heirs of Urieta, Sr. v. Heirs of Urieta (2011)] Because the controversy in partition is whether or not the plaintiff has a right to partition, the issue is incapable of pecuniary estimation. [RIANO]
I.2. WHEN CAN PARTITION BE MADE General Rule: It can be made anytime. The right to demand partition is imprescriptible. (Rationale: Prescription does not run against a co-owner.) Exception: If a co-owner asserts adverse title to the property, in which case, period of prescription runs from such time of assertion of adverse title. [De Castro v. Echarri (1911)]
Parties (1) The plaintiff is the person who is supposed to be a co-owner of the property. [RIANO] (2) Defendants are (i) all the co-owners, who are indispensable parties, and (ii) all other persons having an interest in the property [Id., citing MORAN]
I.3. WHEN PARTITION CANNOT BE MADE:
I.5. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION
(1) When there is a stipulation against it, not exceeding 10 years; [CIVIL CODE, art. 494] (2) When partition is prohibited by the donor or testator for a period not exceeding 20 years; [CIVIL CODE, arts. 494, 1083]
Contents of the Complaint: (1) Nature and extent of his title (2) Adequate description of the real estate sought to be partitioned
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I.7. ORDER OF PARTITION PARTITION BY AGREEMENT
(3) Joining of Defendants – All other persons interested in the property [Sec. 1] (4) 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] 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. [RIANO]
AND
Order of Partition: The court issues an order of partition AFTER the trial and the court finds that the plaintiff has a right to partition. The court orders the partition of the property. The parties may make the partition proper themselves, by agreement: (1) After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves. (2) If they agree, proper instruments of conveyance will be executed to effect the partition. (3) After the execution of instruments of conveyance, the court shall confirm the partition through a final order. (4) The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69, Sec. 2]
I.6. 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. [See Lacbayan v. Samoy] The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals (1976)] 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 (1994)]
I.8. PARTITION BY APPOINTMENT OF COMMISSIONER’S ACTION UPON REPORT
COMMISSIONERS; COMMISSIONERS; REPORT; COURT COMMISSIONER’S
When proper: If parties fail to agree on the manner of partition, commissioners are appointed to make partition.
Second Stage: Actual partitioning of the subject property This is also a complete proceeding and the order or decision is appealable. When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA (1999)]
How Done: The court appoints not more than 3 competent and disinterested commissioners to make the partition. [Sec. 3] Oath of the Commissioners: Before entering into their duties, commissioners must first make an oath that they will faithfully perform their duties as commissioners. Such oath is to be filed in court. [Sec. 4]
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Hearing on the Report [Sec. 7] (1) When Conducted: (a) Upon expiration of the 10 day period for filing objections; or (b) Even before expiration but after the interested parties have filed their objections or their statement of agreement therewith (2) The court may: (a) Accept the report and render judgment in accordance therewith; or (b) Recommit the same to commissioners for further report of facts, for cause shown; or (c) Set aside the report and appoint new commissioners; or (d) Accept the report in part and reject in part; and (e) Make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold
Duties of the Commissioners: (1) They shall view and examine real estate, after due notice to parties to attend at such view and examination; (2) They shall hear the parties as to their preference in the portion to be set apart to them; (3) They shall also determine the comparative value thereof; and (4) They shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable considering the improvements, situation, and quality of the parts thereof. Assignment of Real Estate to One Party General Rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same provided he pays to the other parties such amounts as the commissioners deem equitable.
I.9. JUDGMENT AND ITS EFFECTS [RULE 69, SEC. 11]
Exception: if one of the parties asks that the property be sold instead of being so assigned, then the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine [Sec. 5]
Contents of Judgment
Effects of Judgment
If actual partition is properly made Judgment shall state definitely, by metes Judgment shall vest and bounds and in each party to the adequate description, action in severalty the particular portion the portion of the of the real estate real estate assigned assigned to each to him. party. If the whole property Is assigned to one of the parties after payment Judgment shall state Judgment shall vest the fact of such in the party making payment and of the the payment the assignment of the whole of the real real estate to the estate free from any party making the interest on the part payment. of the other parties.
Commissioner’s Report: Commissioners shall make a full accurate report to the court on (1) All proceedings as to the partition, or (2) The assignment of real estate to one of the parties, or (3) The sale of the same. Upon filing of Commissioner’s Report: (1) Clerk shall serve copies on all interested parties with notice that they are allowed to file objections (2) Parties may file objections within 10 days upon receipt of notice
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J. FORCIBLE ENTRY UNLAWFUL DETAINER
If property is sold and sale is confirmed by Judgment shall state Judgment shall vest the court the name of the the real estate in the purchaser or purchaser(s), purchasers and a making the definite description of payment(s) free the parcels of real from the claims of estate sold to each any parties to the purchaser action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69, Sec. 11]
I.10. PARTITION PROPERTY
OF
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AND
J.1. NATURE Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession of property. [Tubiano v. Razo (2000)] Rationale: The owners of property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law in their own hands.
PERSONAL
J.2. DEFINITIONS AND DISTINCTIONS [RIANO]
The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. [Sec. 13]
I.11. PRESCRIPTION OF ACTION The right of action to demand partition does not prescribe [De Castro v. Echarri (1911)], except where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which case, acquisitive prescription may set in.
Forcibly Entry (Detentacion)
Unlaful Detainer (Desahucio)
Possession of land by defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat, or stealth (FISTS).
Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to possession of the property under his contract (express or implied) with the plaintiff.
No previous demand for defendant to vacate the premises is necessary Plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by defendant. The 1-year period is generally counted from date of actual entry on land.
If a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]
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Plaintiff need not have been in prior physical possession.
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J.3. DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL
The issue centers on The issue centers on whether the who was in prior defendant’s right to possession de facto. possess has expired or not.
The Three Kinds of Action for Recovery of Possession Accion Interdictal Summary action for recovery of physical possession where the dispossession has not lasted for more than 1 year
Accion Publiciana
Accion Reinvindicatoria
A plenary action for recovery of real right of An action for recovery of ownership, possession when which necessarily includes the dispossession has lasted recovery of possession for more than one year
involves Issues is possession de Issue Issue involves ownership determination of who has facto consequently, possession) better right to possession Real action In personam All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.
Real action In personam
(and
Real action Quasi in rem
RTC has jurisdiction if value of the property exceeds P20,000 outside Metro Manila or P50,000 within Metro Manila. MTC has jurisdiction if value of property does not exceed the above amounts. [B.P. Blg. 129, as amended]
J.4. TO DETERMINE JURISDICTION IN ACCION PULICIANA, ACCION REINVINDICATORIA, AND ACCION INTERDICTAL
In accion publiciana and accion reinvindicatoria: (1) RTC has jurisdiction where the assessed value of the property exceeds P20,000 or, in Metro Manila, P50,000; (2) MTC has jurisdiction if the assessed value does not exceed said amounts. [B.P. 129, as amended, secs. 19, 33]
In Accion Interdictal: Exclusive original jurisdiction over forcible entry and unlawful detainer suits is with the proper Municipal Trial Court. [B.P. Blg. 129 sec. 33(2)] Amount of rents and damages claimed does not affect the jurisdiction of the MTC because they are only incidental or accessory to the main action. However, municipal courts have no jurisdiction over a forcible entry/unlawful detainer case involving agricultural tenants. Jurisdiction is with the HLURB.
J.5. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED Who May Institute Proceedings (1) In Forcible Entry: A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth. (2) In Unlawful Detainer: 196
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J.6. PLEADINGS ALLOWED
(a) Lessor, vendor, vendee or other person against whom any land or building is unlawfully withheld; or (b) His legal representatives or assigns. [Rule 70, sec. 1]
ONLY allowed pleadings: (1) Complaint (2) Compulsory Counterclaim pleaded in the answer (3) Cross-claim pleaded in the answer (4) Respective answers. [Rule 70, sec. 4]
Period of Filing: Within ONE (1) year after such unlawful deprivation or withholding of possession. [Sec. 1] Reckoning points: (1) For forcible entry, it is counted from date of entry or taking of possession; (a) Exception: In case of stealth or strategy, from the time plaintiff learned of entry. [Vda. de Prieto v. Reyes (1965)] (2) For unlawful detainer, it is counted from: (a) Date of last demand to vacate in case of non-payment of rent or noncompliance with conditions of the lease; or (b) Date of notice to quit, in case of tacit renewal of lease; or (c) Date of revocation of the permit in case of occupancy on mere tolerance or under temporary permit.
N.B. Pleadings must be VERIFIED. [Rule 70, Sec. 4)] What must be alleged in the complaints:
Forcible Entry
Unlawful Detainer
(1) That plaintiff (1) That defendant is was in prior unlawfully physical withholding possession of possession from the property in plaintiff because litigation until his right to he was deprived possess had thereof by expired defendant (2) That landlord has (2) That the made a demand dispossession upon tenant to was through comply with the FISTS. [N.B. terms of the First two contract and to requirements return the are jurisdictional possession of the (Abad v. property, and that Farrales (2011)] the tenant failed (3) That the to satisfy the complaint was demand within 15 filed within 1 or 5 days, in case year from of buildings dispossession. (3) That the complaint is filed within 1 year from last demand. [RIANO, citing
Against whom may the action be maintained: Person or persons unlawfully withholding or depriving of possession, or any person/s claiming under them [Sec. 1]. Action may be maintained only against one in possession at the commencement of the action. Tenant with right of [de facto] possession may bring action against another tenant. Vendor may bring action for ejectment against vendee upon failure to pay installments. Action may lie against the very owner of the property. Action may be maintained against government officials or agents acting in behalf of the government, even if government is not made a party to the action. [REGALADO]
Romullo v. Samahang Magkakapitbahay (2010)]
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J.7. ACTION ON COMPLAINT Contents of demand: The demand must be two-fold: (1) To (a) pay or (b) comply with the conditions of the lease; and (2) To vacate.
Motu Proprio dismissal: From the examination of allegations in the complaint, the court may dismiss the case outright on any grounds mentioned in Rule 16. [Sec. 5]
Form of Demand: Demand may be (1) By service of written notice of such demand upon the person found on the premises; [Sec. 2] (2) By posting of the written notice on the premises if no person is found there; [Sec. 2] or (3) Oral. [Jakihaca v. Aquino (1990)]
Issuance of summons: If there is no ground for dismissal, court issues summons. [Sec. 5] Answer by defendant: Defendant shall file his answer within 10 days from service of summons. [Sec. 6] Effect of Failure to Answer: Court shall render judgment, motu proprio or upon motion. [Sec. 7] (1) Judgment is limited to what is prayed for in the complaint. (2) Court may reduce the amount of damages and attorney’s fees claimed (a) For being excessive or otherwise unconscionable (b) In the exercise of its discretion (c) No prejudice to applicability of Sec. 3(c), Rule 9 if there are 2 or more defendants
Period to comply with demand: Lessor may file unlawful detainer suit if lessee fails to comply with the demand: (1) After 15 days in the case of lands; or (2) After 5 days in case of buildings. [Sec. 2] When demand not required: (1) When parties stipulate that demand shall not be necessary [Sec. 2]; or (2) When the action is predicated on the expiration of the lease. [Labastida v. CA (1998)] (Since it is not based on failure to pay or comply with the conditions [see Sec. 2].)
Preliminary Conference: Preliminary conference shall be held not later than 30 days after filing of last answer. [Sec. 8]
N.B. It is only where defendant fails to comply with the demand within the periods provided by Sec. 2 will his possession become unlawful. A demand to pay or vacate does not give rise to a cause of action for unlawful detainer. [Peñas v. CA (1994)] 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 (1983)]
Submission of Affidavits and Position Papers: Affidavits and position papers are to be submitted within 10 days from receipt of the Order stating the matters taken in the preliminary conference. [Sec. 10] Rendition of Judgment: Court shall render judgment within 30 days after receipt of affidavits and position papers. [Sec. 11]
J.8. WHEN DEMAND NECESSARY General Rule: In unlawful detainer cases, a prior written demand against the lessee is required before the lessor can proceed against him. [Sec. 2] 198
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Demand is not required in forcible entry suits.
J.10. RESOLVING OWNERSHIP
J.9. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION
REMEDIAL LAW
DEFENSE
OF
Under B.P. Blg. 129, sec. 33(2), when in an ejectment suit, the defendant raises the question of ownership in his pleadings, and the issue of ownership, the MTC nevertheless has undoubted competence to resolve the issue of ownership only to determine the issue of possession. Hence: (1) Primal rule is that the principal issue must be that of possession. (a) Ownership is merely ancillary. (b) Issue of ownership may be resolved but only for the purpose of determining the issue of possession. (2) It must sufficiently appear from allegations of the complaint that what plaintiff really and primarily seeks is restoration of possession. (3) Inferior court cannot adjudicate on the nature of ownership where relationship of lease has been sufficiently established (a) Unless it be proven that there has been a subsequent change in or termination of that relationship between parties. (4) In forcible entry, a party who can prove prior possession can recover such possession even against the owner himself. (a) Hence, if prior possession may be ascertained in some other way, the inferior court cannot intrude into the issue of ownership. (5) Where the question of who has prior possession hinges on the issue of who is the real owner: (a) The inferior court may resolve issue of ownership, but such pronouncement is merely provisional. (b) It does not bar or prejudice an action between the same parties involving title. [Refugia v. CA]
Court may grant preliminary injunction in accordance with Rule 58 to prevent defendant from committing further acts of dispossession against plaintiff. [Rule 70, Sec. 15] There is no distinction as to the type of ejectment case involved. A preventive injunction is governed by Rule 58. A mandatory injunction is governed by the rules in Rule 70. Preliminary Mandatory Injunction: Possessor may present a motion for issuance of preliminary mandatory injunction in the action for forcible entry or unlawful detainer within 5 days from filing of complaint to restore him in his possession. Court shall decide the motion within 30 days from filing. Preliminary mandatory injunction shall be available: (1) At the start of the action; [Sec. 15] (2) On appeal to the RTC upon motion of plaintiff within 10 days from perfection of appeal. [Sec. 20] N.B. The injunction on appeal is to restore to plaintiff in possession: (1) If the court is satisfied that the defendant’s appeal is frivolous or dilatory; or (2) That the appeal of plaintiff is prima facie meritorious. [Sec. 20] 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. 199
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Prohibited pleadings: [Sec. 13] (1) Petition for relief from judgment (2) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (3) Reply; (4) Third-party complaints;
J.11. HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT [RULE 70, SEC. 19] Judgment of the MTC: General rule: Judgment of the MTC against defendant in ejectment cases is immediately executory.
Prohibited motions: [Sec. 13] (1) Motion to dismiss; only to exceptions: (a) Lack of jurisdiction over subject matter; or (b) Failure to comply with conciliation, when such is required; (2) Motion for bill of particulars; (3) Motion for new trial, reconsideration of a judgment, or reopening of trial; (4) Motion for extension of time to file pleadings, affidavits, or other paper; (5) Memoranda; (6) Motion to declare defendant in default; (7) Dilatory motions for postponement; (8) Interventions.
Exception: When the following concur: (1) The defendant perfects his appeal; (2) He files a sufficient supersedeas bond to pay the rents, damages, and costs accruing down to the time judgment appealed from; and (3) He deposits with the appellate court: (a) The amount of rent due from time to time under the contract, or (b) In the absence of contract, the reasonable value of the use and occupation of premises for the preceding month or period determined by judgment on or before the 10th day of each succeeding month or period [Chua v. CA (1998)]
K. CONTEMPT K.1. NATURE
Judgment of the RTC: The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. [Rule 70, Sec. 21]
Contempt of court is disobedience to the court by acting in opposition to its authority, justice, and dignity. It signifies not only a willful disregard or disobedience to the court’s orders but also conduct tending to bring the authority of the court and administration of law into disrepute, or, in some manner, to impede the due administration of justice.
J.12. SUMMARY PROCEDURE, PROHIBITED PLEADINGS 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. [Sec. 3]
The power to declare person in contempt of court and in dealing with him accordingly is an inherent power of the court. It is used as a means to protect and preserve the dignity of the court, the solemnity of the proceedings, and administration of justice. [See Montenegro v. Montenegro (2004)]
Exceptions: (1) In cases covered by the agricultural tenancy laws; or (2) When the law otherwise expressly provides. [Sec. 3] 200
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court and justice. [Lorenzo Shipping Corp.
K.2. KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH
v. Distribution Management Assoc. of the Phils. (2011)]
According to Nature (1) Criminal contempt: Conduct directed against the authority and dignity of the court or a judge acting judicially. (2) Civil contempt: Failure to do something ordered to be done by a court or by a judge for the benefit of the opposing party. [Burgos v. Macapagal-Arroyo (2011)]
Criminal Contempt Punitive in nature Purpose is to preserve the court’s authority and to punish for disobedience of its orders Intent is necessary
State is the real prosecutor
Proof required is proof beyond reasonable doubt If accused is acquitted, there can be no appeal
REMEDIAL LAW
Direct Contempt
Indirect Contempt
Committed in the Not committed presence of or so within the presence near a court of the court There is charge and Summary in nature hearing Punishment: Punishment: If committed against If committed against RTC: Fine not the RTC: Fine of not exceeding P30,000 exceeding P2,000 and/or and/or imprisonment not imprisonment not exceeding 6 months exceeding 10 days If committed against If committed against MTC: Fine not the MTC: Fine not exceeding P5,000 exceeding P200 and and/or or imprisonment not imprisonment not exceeding 1 day exceeding 1 month Remedy is certiorari Remedy is appeal or prohibition Otherwise known as Otherwise known as Contempt in Facie Constructive Curiae Contempt
Civil Contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order; for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected Proof required is more than mere preponderance If judgment is for respondent, there can be appeal
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of contemptuous act. The real character of the proceedings in contempt cases is to be determined by the relief sought or by the dominant purpose. The proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial. [Montenegro v. Montenegro (2004)]
According to Manner of Commission (1) Direct contempt: Act committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same. (2) Indirect contempt: One not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct, or embarrass the
K.3. DIRECT CONTEMPT For a person to be adjudged guilty of direct contempt, he must commit a misbehavior in the presence of or so near a judge as to
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interrupt the administration of justice. [SBMA v. Rodriguez (2010)]
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(a) He files a bond fixed by the court which rendered judgment; and (b) Conditioned that he will abide by and perform the judgment should the petition be decided against him.
Grounds for Direct Contempt (1) Disrespect toward the court; (2) Offensive personalities toward others; (3) Refusal to be sworn or answer as witness or subscribe an affidavit when lawfully required to do so; (4) Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings; [Rule 71, Sec. 1] or (5) When the counsel willfully and deliberately engages in forum shopping. [Rule 7, sec. 5]
K.4. INDIRECT CONTEMPT Specific acts constituting indirect contempt: (1) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. (2) Abuse of or any unlawful interference with processes or proceedings of a court not constituting direct contempt. (3) Disobedience or resistance to lawful writ, process, order, or judgment of a court, or any unlawful intrusion to any real property after being ejected. (4) Failure to obey subpoena duly served. (5) Assuming to be an attorney or officer of a court, and acting as such without authority. (6) Improper conduct tending to impede, obstruct, or degrade administration of justice. (7) Rescue, or attempted rescue, of a person or property in custody of an officer. [Rule 71, Sec. 3] (8) Failure of counsel to inform the court of the death of his client. [RIANO, since it constitutes improper conduct tending to impede the administration of justice.]
Procedure: Summarily adjudged in contempt by such court. By whom initiated: (1) Generally, civil contempt proceedings should be instituted by an aggrieved party, or his successor, or someone who has pecuniary interest in the right to be protected; (2) In criminal contempt proceedings, it is generally held that the State is the real prosecutor. Penalties [Rule 71, sec. 1]: Offense
Penalty Fine not exceeding If RTC or a court of P2,000 and/or equivalent or higher Imprisonment not rank exceeding 10 days Fine not exceeding P200 and/or If lower court: Imprisonment not exceeding 1 day
Procedural requisites for indirect contempt proceedings: (1) A charge in writing or an order of the court to appear and explain; and (2) An opportunity for respondent to comment on the charge and to appear and explain his conduct.
Remedy of a person adjudged in direct contempt [Rule 71, Sec. 2] (1) He cannot appeal, but he may file certiorari or prohibition. (2) Execution of judgment shall be suspended pending resolution of such petition, provided:
Two modes of commencing a proceeding for indirect contempt (1) Motu proprio by the court against which contempt was committed: By order or any other formal charge requiring respondent to show why he should not be punished for contempt; or 202
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(2) Independent action via verified petition in all other cases: By a charge commenced by a verified petition with supporting particulars. [Rule 70, Sec. 4]
If committed against a person or entity exercising quasijudicial functions
Where Charge is to be Filed General rule: Proceeding for Indirect Contempt shall be filed and tried by the court against which the contumacious conduct was committed.
K.5. WHEN IMPRISONMENT SHALL BE IMPOSED 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. [Rule 71, Sec. 8]
Penalties for indirect contempt [Rule 71, Sec. 7]
Offense
Penalty Fine not exceeding P30,000 and/or Imprisonment not exceeding 6 months Fine not exceeding P500, and/or Imprisonment not exceeding 1 month Offender may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.
If committed against lower court
If contempt consists in violation of a writ of injunction, TRO, or status quo order
equivalent to the lost thing [Rosario Textile Mills v. CA] Penalty shall depend upon the provisions of the law which authorizes penalty for contempt against such persons or entities
Remedy of a person adjudged in indirect contempt: May be appealed to the proper court as in criminal cases, but execution shall not be suspended until bond is filed. [Rule 71, Sec. 11]
Exceptions: (1) If committed against a lower court, it may be tried by the RTC, regardless of the imposable penalty; or (2) If committed against the SC, it may cause it to be investigated by the prosecutor and filed with the RTC, or for hearing and recommendation where the charge involves questions of fact [Rule 70, Sec. 5]
If against RTC, or court of equivalent or higher rank
REMEDIAL LAW
The respondent “carried the keys to his prison in his own pocket.” [Galvez v. Republic Surety & Insurance Co., Inc. (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. (2005)] Rule 71, Sec. 8 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. [REGALADO]
K.6. CONTEMPT AGAINST QUASIJUDICIAL BODIES [RULE 71, SEC. 12]
If there is nothing more to return, offender is personally liable for the restitution of the money
Rule 71 shall apply to contempt committed against persons, entities, bodies, or agencies exercising quasi-judicial functions or have 203
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suppletory effect to such rules as they may have adopted. RTC of the place where the contempt was committed shall have jurisdiction. It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v. Listana (2003)] Rule 71, Sec. 12 confers contempt powers on all Quasi-Judicial entities or supplements their rules, unless the applicable law provides otherwise. 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. [People v. Mendoza (1953); ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]
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THE SPECIAL CIVIL ACTIONS JURISDICTION VENUE Personal Property: 1. MTC: If value not more than P300,000 outside Metro Manila, or not more than P400,000 in Metro Manila [B.P. Blg. 129, sec. 33] 2. RTC: If value exceeds P300,000 outside Metro Apply Rule 4: Manila, or P400,000 in Metro Manila, or if incapable of pecuniary estimation [B.P. Blg. 129, Real action: If the action affects title to or possession of real property, sec. 19] venue is where the real property involved or a portion thereof is situated. INTERPLEADER
DECLARATORY RELIEF
Real Property: Personal action: All other actions—At the election of the plaintiff 1. MTC: assessed value not more than P20,000 1. Where plaintiff or any of the principal plaintiffs reside; or outside Metro Manila or not more than P50,000 2. Where defendant or any of the principal defendants resides; or in Metro Manila (Sec. 33, BP 129) 3. In case of an non-resident, where he may be found 2. RTC: value exceeds P20,000 if outside Metro Manila, or P50,000 if in Metro Manila, or incapable of pecuniary estimation (Sec. 19, BP129) General rule: In the appropriate RTC, since the subject in declaratory relief is incapable of pecuniary estimation. Exception: Where the action is a proceeding similar to Apply Rule 4, i.e. personal action. declaratory relief (e.g. quieting of title to real property), jurisdiction will depend on the assessed value of the property, supra.
REVIEW OF JUDGMENTS AND FINAL SC ORDERS OF COMELEC/COA
SC
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CERTIORARI PROHIBITION MANDAMUS
CIVIL PROCEDURE
QUO WARRANTO
EXPROPRIATION
RTC
JUDICIAL RTC FORECLOSURE PARTITION RTC FORCIBLE ENTRY AND UNALWFUL MTC DETAINER
RTC, CA, SC; Sandiganbayan, in aid of its appellate jurisdiction; RTC where the respondent is situated, where petition relates to an act or COMELEC, in election cases involving an act or omission of a corporation, board, an officer, or person. [Rule 65, Sec. 4] omission by MTC or RTC, in aid of its appellate jurisdiction. RTC, CA, SC Sandiganbayan, which has exclusive original jurisdiction over quo warranto cases filed by the Generally, action can be brought in the SC, CA, or RTC PCGG exercising jurisdiction over the territorial area where respondent resides or any of the respondent resides COMELEC, exclusive jurisdiction over cases falling under the Omnibus Election Code If commenced by the SolGen, it may be filed with the RTC Manila, CA, or SC Special Commercial Courts, for quo warranto against duly licensed associations. (CORP. CODE rules apply, not the RULES OF COURT.) Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated Apply Rule 4 Apply Rule 4, i.e. where the real property involved, or a portion thereof, is situated
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If committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it: File with such court If committed against a first-level court: File with the RTC of the place in which lower court is sitting If act was committed against persons or entities exercising quasi-judicial functions: File with the RTC of the place wherein contempt was committed
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IX. SPECIAL RULES
REMEDIAL LAW
Rule shall not apply: (1) To a civil case where plaintiff’s cause of action is pleaded in the same complaint 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
A. REVISED RULES ON SUMMARY PROCEDURE A.1. CASES COVERED BY THE RULE (SEC. 1)
A.2. EFFECT OF FAILURE TO ANSWER (SEC. 6)
Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction:
If defendant fail to answer the complaint within the period provided, court (motu proprio or on motion of plaintiff) shall render judgment
For 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
The judgment: (1) As may be warranted by the facts alleged in the complaint and (2) Limited to what is prayed for The court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or unconscionable without prejudice to the applicability of Sec. 4, Rule 18 ROC, if there are 2 or more defendants
(2) All other civil cases where total amount of plaintiff’s claim does not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs (a) EXCEPT: probate proceedings
A.3. PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES (SEC. 7)
For Criminal Cases (1) Traffic laws, rules, and regulations violation (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
A preliminary conference shall be held not later than 30 days after the last answer is filed. Rules on pre-trial in ordinary cases shall be applicable unless inconsistent with the provisions of this Rule Failure of plaintiff to appear in preliminary conference (1) Cause for dismissal of complaint (2) Defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. 6 (3) All cross-claims shall be dismissed
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If sole defendant shall fail to appear (1) Plaintiff entitled to judgment in accordance with Sec. 6 (2) Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at preliminary conference
REMEDIAL LAW
(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 Five thousand pesos (P5,000.00); (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.
B. KATARUNGANG PAMBARANGAY LAW (PD 1508; RA 7160 AS AMENDED) B.1. SCOPE AND APPLICABILITY OF THE RULE RA 7610 Sec. 399-422, and 515 is applicable. The LGC is now the governing law on Katarungang Pambarangay. PD 1508 was expressly repealed
B.2. CASES COVERED All disputes, civil and criminal in nature, where parties actually reside in the SAME CITY/MUNICIPALITY are subjected barangay conciliation.
The court in which non-criminal cases not falling within the authority of the lupon under this Code are filed may, at any time before trial motu propio refer the case to the lupon concerned for amicable settlement.
B.3. SUBJECT MATTER FOR AMICABLE SETTLEMENT (SEC. 408, RA 7160)
B.5. VENUE [RA 7610, SEC. 409]
The lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes.
Parties
Lupon
Between actual Lupon of said residents of the same barangay barangay Lupon of the barangay Between actual where the respondent residents of different or any of the barangays but within respondents actually same city/municipality resides at the option of complainant Involving real property Lupon of barangay or any interest therein were the real property
B.4. WHEN PARTIES MAY GO DIRECTLY TO COURT In these cases, referral to barangay conciliation is not a condition precedent for filing a case to court: (1) Where one party is the government, or any subdivision or instrumentality thereof;
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(1) Purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and (2) Civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure.
or the larger portion thereof is located Between parties Lupon of the barangay arising at the were the workplace or workplace or at institution is located institutions of learning
B.6. EXECUTION
These claims or demands may be; (1) For money owned under any of the following; (a) Contract of Lease; (b) Contract of Loan; (c) Contract of Services; (d) Contract of Sale; or (e) Contract of Mortgage;
The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. [Sec. 417, RA 7160]
B.7. REPUDIATION
(2) For damages arising from any of the following; (a) Fault or negligence; (b) Quasi-contract; or (c) Contract;
Any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided. [Sec. 418, RA 7160]
(3) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417, LGC.
C. RULES OF PROCEDURE FOR SMALL CLAIMS CASES (A.M. NO. 088-7-SC)
C.2. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE [SEC. 5]
C.1. SCOPE AND APPLICABILITY OF THE RULE
How commenced: By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate
This Rule shall govern the procedure in actions before the MeTC, MTC in Cities, MTC and MCTC for payment of money where the value of the claim does not exceed P100,000 exclusive of interest and costs. [Sec. 2]
Attachments to the Statement of Claim: (1) Certification of Non-forum Shopping (2) Two (2) duly certified photocopies of the actionable document/s subject of the claim (3) Affidavits of witnesses and other evidence to support the claim
This Rule is applicable in all actions which are; [Sec. 4] 209
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C.3. PROHIBITED MOTIONS [SEC. 14]
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.
REMEDIAL LAW
PLEADINGS
AND
The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule: (1) Motion to dismiss the compliant 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; (11) Third-party complaints; and (12) Interventions.
No formal pleading, other than the Statement of Claim, is necessary to initiate a small claims action. After examination of allegations of the Claim, the court may dismiss outright the case for any of the grounds apparent for the dismissal of a civil action. [Sec. 9] If no ground of dismissal is found, the court shall issue Summons directing defendant to submit a verified response. [Sec. 10] The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non - extendible period of ten (10) days from receipt of summons [Sec. 11]. Attachments: (1) Certified photocopies of documents (2) Affidavits of witnesses (3) Evidence in support
C.4. APPEARANCES The parties shall appear at the designated date of hearing personally or through a representative authorized under a Special Power of Attorney to: (1) Enter into an amicable settlement, (2) Submit of Judicial Dispute Resolution (JDR) and (3) Enter into stipulations or admissions of facts and of documentary exhibits [Sec. 16]
NOTE: No evidence shall be allowed during hearing which was not attached or submitted together with the Response. Should the defendant fail to file his response within the required period, the court by itself shall render judgment as may be warranted by the facts alleged in the Statement of claim limited to what is prayed for. The court however, may, in its discretion, reduce the amount of damages for being excessive or unconscionable. [Sec. 12]
No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. [Sec. 17] Failure to appear: (1) If plaintiff fails to appear – it shall be a cause for dismissal without prejudice. Defendant present shall be entitled to judgment on permissive counterclaim. 210
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(2) If defendant fails to appear – same effect as failure to file Response.
The decision shall be final and unappealable. [Sec. 23]
C.5. HEARING; DUTY OF THE JUDGE
D. EFFICIENT USE OF PAPER RULE (A.M. NO. 11-9-4-SC)
At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases. [Sec. 20]
D.1. FORMAT AND STYLE All pleadings, motions and similar papers intended for the court and quasi-judicial body’s consideration and action (court-bound papers) shall: (1) Be written in single space with one-and-a – half space between paragraphs, (2) Use an easily readable font style of the party’s choice, of 14-size font, and on a 13 – inch by 8.5- inch white bond paper
At the hearing, the judge shall conduct JDR through mediation, conciliation, early neutral evaluation, or any other mode of JDR. [Sec. 21] If JDR fails and the parties agree in writing that the hearing of the case shall be presided over by the judge who conducted the JDR, the hearing shall so proceed in an informal and expeditious manner and terminated within one (1) day. [Sec. 22]
All decisions, resolutions and orders issued by courts and quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes.
Absent such agreement (1) In case of a multi-sala court , the case shall, on the same day, be transmitted to the Office of the Clerk of Court for immediate referral by the Executive Judge to the pairing judge for hearing and decision within five (5) working days from referral; and (2) In case of single sala court, the pairing judge shall hear and decide the case in the court of origin within five (5) working days from referral by the JDR judge.
D.2. MARGINS AND PRINTS The parties shall maintain the following margins on all court-bound papers: (1) Left hand margin of 1.5 inches from the edge; (2) Upper margin of 1.2 inches from the edge; (3) Right hand margin of 1.0 inch from the edge; (4) Lower margin of 1.0 inch from the edge. Every page must be consecutively numbered.
C.6. FINALITY OF JUDGMENT
D.3. COPIES TO BE FILED
After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence.
Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file shall be as follows:
The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties.
In the Supreme Court, (1) One original (properly marked) and 4 copies
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(2) Two sets of annexes, one attached to the original and an extra copy
REMEDIAL LAW
In other courts, (1) One original (properly marked) (2) With the stated annexes attached to it.
If the case is referred to the Court En Banc: (1) Parties shall file 10 additional copies. (2) For the En Banc, the parties need to submit only 2 sets of annexes, one attached to the original and an extra copy.
D.4. ANNEXES SERVED ON ADVERSE PARTY A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession.
All members of the Court shall share the extra copies of annexes in the interest of economy of paper. In the Court of Appeals and the Sandiganbayan, (1) One original (properly marked) and (2) Two copies with their annexes;
In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt.
In the Court of Tax Appeals, (1) One original (properly marked) and (2) 2 copies with annexes
D.5. APPLICABILITY This Rule applies to all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court.
On appeal to the En Banc: (1) One Original (properly marked) (2) 8 copies with annexes; and
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I. Special Proceedings
REMEDIAL LAW
APPLICABLE RULES If special rules are provided, they shall apply. But in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. [Rule 72, Sec. 2]
Rule 1 Sec 3(c). A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.
A. SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
There are special proceedings which are not part of the ROC but are provided for under special laws and Supreme Court circulars (e.g. Writs of amparo and habeas data)
Rule 72 Sec 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations (11) Judicial approval of voluntary recognition of minor natural children (12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil registry.
The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken [REGALADO] Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v. CA (1969)].
DISTINCTION BETWEEN ORDINARY CIVIL ACTION AND SPECIAL PROCEEDINGS Ordinary Civil Action
NOTES
Special Proceeding
To protect or enforce a Text To establish a right or prevent or right, status, or redress a wrong particular fact
Rule 99 on Adoption and Rule 100 on Rescission and Revocation of Adoption had been expressly repealed by the new Rules on Adoption (effective August 22, 2002). [FESTIN] Rule 104 is likewise deemed repealed by Sec 119 of the Corporation Code and a Petition for Voluntary Dissolution of Corporations is now to be filed with the Securities and Exchange Commission and not with the courts. [BAUTISTA] Rules 105 and Rule 106 are deemed obsolete because under the Family Code, there are no more natural children and a family home is deemed automatically constituted. List under Rule 72 is not exclusive [FESTIN]
Generally adversarial in May involve only one nature, involves two or party more parties Governed by ordinary Governed by special rules supplemented by rules, supplemented by special rules ordinary rules Courts of jurisdiction
general Courts of jurisdiction
limited
Initiated by pleading, Initiated by petition, and parties respond parties respond through an answer through an opposition Laws on pleadings Laws on applicable: filing of an generally 214
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B. JURISDICTION
answer, counterclaim, applicable. cross-claim, third-party complaint
Exclusive original jurisdiction over all matters of probate, both testate and intestate, shall lie with: MTC if gross value of the estate Outside Metro does not exceed P300,000; If Manila it exceeds such value then RTC MTC if gross value of the estate In Metro does not exceed P400,000; Manila Otherwise RTC
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 a method of applying legal remedies according to definite established rules. A special proceeding is 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 an application or motion. It is in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. [Natcher v. CA, 366 SCRA 385]
Court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts and cannot be divested by subsequent act of interested parties. Testate proceedings take precedence over intestate proceedings of the same estate. [Sandoval v. Santiago (1949)] Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. [Uriarte vs. CFI (1970]
II. Settlement of Estate of Deceased Persons
A. MODES ESTATE
OF
SETTLEMENT
REMEDIAL LAW
OF
(1) Extrajudicial (a) If only one heir: Affidavit of Selfadjudication (b) If two or more heirs: Deed of Extrajudicial Settlement or Partition [Rule 74 Sec 1] (2) Judicial (a) Partition [Rule 69] (b) Summary Settlement of Estate of Small Value [Rule 74 Sec 2] (c) Petition for Letters of Administration [Rule 79] (d) Probate of a Will [Rule 75-79] (i) Petition for Letters Testamentary; or (ii) Petition for Letters of Administration with the will annexed (if no named executor)
C. VENUE (1) If Inhabitant of the Philippines at the time of death (citizen or alien) – Court of the province where decedent resided at time of death (2) If inhabitant of foreign country at the time of death – Court of any province where decedent had an estate [Rule 73 Sec 1] Residence 215
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In the application of venue statutes and rules, residence rather than domicile is the significant factor. The word “resides” means personal, 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, 74 SCRA 189]
REMEDIAL LAW
The court first taking cognizance of the settlement of estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. [Rule 73 Sec 1] Under the rule of venue, the court with whom a petition is first filed must also first take cognizance of the petition in order to exclude other courts. [BAUTISTA]
NOTE: “Jurisdiction” as used in Rule 73 means venue.
E. POWERS AND DUITIES OF A PROBATE COURT
If venue is improperly laid: General Rule: Ordinary appeal Exceptions: Certiorari may be resorted to if impropriety of venue (due to residence or location of estate) appears on the record. [Rule 73 Sec 1]
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 vs. Fernandez Fidalgo (1909)]
D. EXTENT OF JURISDICTION OF PROBATE COURT
There seems, however, to be a general tendency, in the absence of express and specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same. [In Re: Baldomero Cosme (1937)]
A probate court is of limited jurisdiction. It may only determine and rule upon issues relating to the settlement of estates namely: (1) Liquidation of estate; (2) Administration of the estate; and (3) Distribution of the estate [HERRERA] General rule: Questions as to title to property cannot be passed upon on testate or intestate proceedings. Exceptions: (1) 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 (1984)] (2) With consent of all the parties, without prejudice to third persons [Trinidad v. CA (1991)] (3) If the question is one of collation or advancement [Coca v. Borromeo (1978)] (4) When the estate consists of only one property [Portugal v. Portugal-Beltran (2005)]
Ancillary powers of a probate court (1) Issue warrants and processes to compel attendance of a witness and to carry into effect their orders and judgments; (2) Issue warrant for apprehension and imprisonment of a person who refuses to perform an order or judgment; (3) All other powers granted to them by law [Rule 73 Sec 3]
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III. Summary Settlement of Estates
REMEDIAL LAW
Modes: (1) If sole heir: Affidavit of Self-adjudication (of the whole estate) (2) If more than one heir: Deed of Extrajudicial Settlement or partition
General rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor.
Deed of Extrajudicial Settlement is resorted to if there is no disagreement among the heirs.
Exception Law allows heirs to resort to: (1) Extrajudicial settlement of estate (decedent died intestate and left no debt); or (2) Summary settlement of estate (for estates of small value)
If there is a disagreement, then they may resort to an action for partition (which is judicial) Procedure: Division of estate in a public instrument or affidavit of adjudication.
Ratio: When partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. [Pereira v. CA (1989)]
Pubic instrument/affidavit filed with proper Registry of Deeds and posting of a bond if estate has personal property (bond equivalent to amount of personal property).
No preclusion from instituting administrative proceedings While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so (not precluded from instituting administration proceedings) if they have good reasons to take a different course of action. “Good reasons” depend on circumstances of each case. [Ibid]
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.
Extrajudicial settlement not binding on those who did not participate or had no notice The procedure outlined in Section 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.
A. EXTRAJUDICIAL SETTLEMENT OF ESTATES Requisites [Rule 74 Sec 1] (1) Decedent died intestate (2) Left no debts or heirs have already paid such at the time of partition (3) Heirs are all of age, minors represented by their legal or judicial representatives
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 (2008)] 217
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Oral partition is valid Because there is no law that requires partition among heirs to be in writing to be valid. [Pada Kilario v. CA (2000)]
Procedural Requirements: (1) Petition by an interested person alleging fact that estate does exceed P10,000 (2) Hearing which shall be (a) Held not less than 1 month nor more than 3 months (b) Counted from the date of the last publication of a notice (3) Notice (a) Which shall be published once a week for 3 consecutive weeks (b) In a newspaper of general circulation in the province (c) It is not required that publication be for a complete 21 days. What is required is that it be published for once a week for 3 consecutive weeks. (4) Other notice to interested persons as the court may direct [Rule 74 Sec 2] (5) Bond in an amount to be fixed by court if personal property is to be distributed [Rule 74 Sec 3]
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 (1972)]
TWO-YEAR PERIOD Disputable presumption of no debt If within two years after the death of the decedent no creditor files a petition for letters of administration, then it shall be presumed that decedent left no debt. Two-year prescriptive period Heirs or person deprived of lawful participation in the estate may compel settlement of estate within 2 years from settlement and distribution.
Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay, (1) to grant, if proper, allowance of the will, if there be any (2) to determine who are persons legally entitled to participate in the estate (3) to apportion and divide among them after the payment of such debts of the estate (4) persons in own right if of lawful age, or their guardians, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively. [Rule 74 Sec 2]
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 a full period of 2 years after such distribution. Such lien will be not cancelled before the lapse of two years even if a distributee offers to post bond to answer for contingent claims [Rebong v. Ibanez (1947)]
B. SUMMARY SETTLEMENT ESTATES OF SMALL VALUE
REMEDIAL LAW
OF
When allowed: Whenever the gross value of estate of the decedent does not exceed P10, 000.
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Value of the estate is Gross value of the immaterial estate must not exceed P10, 000
Death of the decedent Petition for summary settlement with an allegation that the gross value of the estate does not exceed P10K Publication of notice of the fact of summary 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 Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice Court to proceed summarily, without appointing an executor/administrator (executor/administrator), and to make orders as may be necessary such as: (1) Grant allowance of will, if any; (2) Determine persons entitled to estate; (3) Pay debts of estate which are due; Filing of bond fixed by the court Partition of estate
Bond filed with the Register of Deeds in an amount equal to the value of the personal property of the estate
WITHIN REGLAMENTARY PERIOD OF TWO YEARS: (1) Claim on the bond (2) Claim on lien on real property – notwithstanding any transfers of real property that may have been made. (3) Reopening by intervention before rendition of judgment (4) Action to Annul Settlement When applicable: there is an heir or other person who (1) has been unduly deprived of his lawful participation in the estate: a. He shall have a right to compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation (2) 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, a. settle the amount of such debts or lawful participation, and b. may issue execution against the bond or against the real estate belonging to the deceased, or both. [Rule 74 Sec 4]
Extrajudicial Settlement Summary Settlement Court intervention not Summary judicial required adjudication needed Decedent may or may not have left a will (died intestate/testate)
Decedent left no debt
Decedent may have left debts
Bond filed with and amount to be determined by the court
C. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE
COMPARISON
Decedent left no will
REMEDIAL LAW
Heirs are all of age or No such requirement minors are represented Instituted only at the May be instituted by instance and by any interested party agreement of all heirs even by a creditor without consent of the heirs 219
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When not applicable: (1) To persons who have participated or taken part or had notice of the extrajudicial partition (2) 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)
REMEDIAL LAW
(3) Petition for Relief – on ground of fraud, accident, mistake, excusable negligence within 60 days after petitioner learns of judgment 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]
IV. Production and Probate of Will
Additional Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years, the person authorized to file a claim is: (1) a minor or mentally incapacitated, (2) is in prison or (3) outside the Philippines,
A. NATURE PROCEEDINGS
OF
PROBATE
(1) In rem proceedings (2) Mandatory – no will shall pass either real or personal property unless it is proved and allowed in the proper court [Rule 75 Sec 1] (3) Right to ask for probate does not prescribe [Guevara v. Guevara (1943)] (4) Doctrine of estoppel does not apply [Fernandez v. Dimagiba (1967)]
He may present his claim within 1 year after such disability is removed. [Rule 74 Sec 5] 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 action, 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. This is proper to avoid needless delay in the resolution of cases [Jerez v. Nietes (1969)
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 (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 (1982)] Duty of custodian, executor The person who has custody of the will shall deliver the will to the court having jurisdiction or, to the executor within 20 days after he knows of the death of the testator. [ Rule 75 Sec 2]
OTHERS: (1) Action for reconveyance of real property – based on an implied trust, reckoned 10 years from issuance of title [Marquez v. CA (1998)]
The person named executor shall present the will to the court having jurisdiction, unless the will has reached it in any manner, and signify
(2) Rescission – in case of preterition of compulsory heir in partition tainted with bad faith [Art 1104 NCC] 220
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acceptance/refusal of the trust within 20 days after he knows of the death of the testator or after he knows that he is named executor.[Rule 75 Sec 3]
there is clearly preterition and the said judge still continues the probate proceedings)
Penalty for neglect without excuse satisfactory to the court: Fine not exceeding P2,000 [Rule 75 Sec 4]
Due execution of the will means: (1) That the will was executed strictly in accordance with the formalities required by law; (2) That the testator was of sound and disposing mind when the will was executed; (3) That there was no vitiation of consent through duress, fear or threats; (4) That it was not procured by undue and improper pressure or influence on part of beneficiary or other person for his benefit; (5) That the testator’s signature is genuine (it was not procured through fraud and that the testator intended that what he executed was his last will and testament)
Extrinsic validity - due execution of the will;
Person retaining will may be committed to prison if: (1) Has custody of will (2) There is a court order directing him to deliver the will; and (3) Neglects without reasonable cause to deliver the same [Rule 75 Sec 5]
V. Allowance or Disallowance of Will Probate or allowance of wills is the act of proving in court a document purporting to be the last will and testament of the deceased for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law. [FESTIN]
A. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE TIMING AND WHO MAY PETITION A will may be probated: (1) Before the testator’s death - By testator himself Rationale: Easier for courts to determine mental condition of testator. Fraud intimidation and undue influence are minimized. And if will does not comply with requirements prescribed by law, they can be easily corrected. (2) After the testator’s death – By executor, devisee, or legatee named in the will or any person interested in the estate
General Rule: A probate proceeding only looks at extrinsic validity. Exception: Principle of Practical Consideration The probate court may pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration [Nepomuceno v CA (1985)]. (Ex. When on the face of the will the petitioner appears to be preterited)
MEANING OF INTEREST IN ESTATE An interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor. [Sumilang v. Ramagosa (1967)]
But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when 221
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Persons entitled to notice (1) Known heirs, legatees and devisees; (2) Named executor his co-executor if they are not the petitioner[Rule 76 Sec 4] (3) Compulsory heirs, if the testator himself asks for probate of his own will.
If testator files for probate of his will, no publication is required and notice is only to the compulsory heirs. [Rule 76 Sec 3]
Periods to give notice (1) Personal service: At least 10 days before hearing (2) By mail: at least 20 days before hearing
Uncontested will (1) Notarial Will – Testimony of at least one subscribing witness that the will was executed as required by law. [Rule 76 Sec 5] a. If all subscribing witnesses reside outside of the province their testimony can be taken through a deposition by presenting a photocopy of the will and propounding questions thereat. [Rule 76 Sec 7] b. Other witnesses who are not subscribing witnesses may be presented if all subscribing witnesses are dead, insane or do not reside in the Philippines. [Rule 76 Sec 8]
EVIDENCE REQUIRED IN SUPPORT OF A WILL
B. CONTENTS OF PETITION FOR ALLOWANCE OF WILL (1) Jurisdictional facts (a) Death of the decedent (b) Residence at the time of death in the province where the probate court is sitting Or if he is an inhabitant of a foreign country, his leaving his estate in such province; (2) Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent (3) Probable value and character of the property of the estate (4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court, the name of the person having custody of it. [Rule 76 Sec 2]
(2) Holographic wills – At least one witness who knows the handwriting and signature of the testator who will explicitly declare that the will and signature are in the handwriting of the testator. a. Expert Testimony – may be resorted to In the absence of such competent witness, and if the court deem it necessary.
EFFECTS OF DEFECT IN PETITION No defect in petition shall render void the allowance of will, or the issuance of letters testamentary or of administration with the will annexed. [Rule 76 Sec 2]
If the testator himself petitions for probate of holographic will and it is not contested: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of genuineness and due execution thereof. [Rule 76 Sec 12]
JURISDICTION, HOW ACQUIRED It is not mandatory that witnesses be presented first before expert testimony may be resorted to unlike in notarial wills wherein attesting witnesses must first be presented. [Azaola v. Singson (1960)]
(1) Attaching a mere copy of will to the petition or (2) Delivery of will, even if no petition is filed or (3) Filing of the original petition and compliance with Sec 3-4 Rule 76. a) Publication for 3 weeks of the order b) Notice to all interested persons (If by mail, 20 days before hearing; if through personal service, 10 days before hearing)
Contested will Anyone appearing to contest the will must state in writing his grounds for opposing the 222
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allowance and serve a copy to petitioner and other interested parties [Rule 76 Sec 10]
REMEDIAL LAW
testator’s lifetime without his knowledge; and iii. Provisions of the will (clearly and distinctly proved by at least two credible witnesses)
(1) Notarial Will –All subscribing witness and the notary if present in the Philippines and not insane must be presented [Rule 76 Sec 11] a. If dead, insane or absent – said fact must be satisfactorily shown in court. b. If present in the Philippines but outside the province – deposition may be taken.
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. [Rule 76 Sec 6]
Can testimony of the subscribing witnesses be dispensed with in a contested will? YES. If all or some of the subscribing witness i) testify against the due execution of the will; or ii) do not remember having attested to it; or iii) are otherwise of doubtful credibility
(2) 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.
Court may allow the will if it is satisfied from testimony of other witnesses and evidence presented that the will was executed and attested in the manner required by law. [Rule 76 Sec 11]
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 (1982)]
(2) Holographic Will – if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator. a. Expert testimony may be resorted to in the absence of such witnesses.
C. GROUNDS FOR DISALLOWING A WILL The will shall be disallowed in any of the following cases: (1) If not executed and attested as required by law; (2) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (3) If executed under duress, or the influence of fear, or threats; (4) If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (5) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto [Rule 76 Sec 9]
If the testator himself petitions for probate of holographic will and it is contested: Contestant have the burden of disproving genuineness. Testator may present additional proof to rebut contestant’s evidence. [Rule 76 Sec 12] Lost will (1) Notarial Wills – even if lost may be proved Facts to be proved in order that lost or destroyed will may be allowed: i. Due execution and validity of the will; and ii. Existence at the time of testator’s death or that it has been fraudulently or accidentally destroyed during
The list is exclusive. [Sps Ajero v. CA (1994)]
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D. REPROBATE
F. EFFECTS OF PROBATE
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 of First Instance in the Philippines (now RTC). [Rule 77 Sec 1]
Effect of Probate of Will Decree of probate is conclusive as to its due execution, subject to the right of appeal. (Thus, no suit for forgery of a will, which has been duly probated and such order becoming final) If decision admitting a will to probate becomes final, there can no longer be any challenge to its due execution and authenticity. Thus, criminal action will not lie against an alleged forger of the will. [Mercado v. Santos (1938)]
Requisites for Allowance (1) Duly authenticated Copy of the will; (2) Duly authenticated Order or decree of the allowance in foreign country; A petition for allowance in the Philippines may be filed by executor or other person interested. 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. [Rule 77 Sec 2]
Order allowing or disallowing may be the subject of an appeal. [Rule 109 Sec 1]
Industrial Partner
Evidence necessary for reprobate (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills [Vda. De Perez v. Tolete (1994)]
Operates with name and personality
Capitalist Partner
firm Operates without firm legal name and legal personality
Generally relates to a Usually limited to a continuing business of single transaction various transactions of a certain kind Corporations may not Corporations may enter enter into a partnership into joint ventures
Effect (1) The will shall have the same effect as if originally proved and allowed in such court; (2) Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines; (3) After payment of just debts and expenses of administration the estate shall be disposed of according to the will (4) Residue disposed of in accordance with law [Rule 77 Sec 4]
VI. Letters Testamentary and of Administration A. WHEN AND TO WHOM LETTERS OF ADMINISTRATION ARE GRANTED Who may administer the estate of a deceased person? (1) Executor (2) Administrator
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Executor
Administrator
Person named expressly by deceased person in his will to administer estate and subsequently appointed by court
Appointed when: 1. Testator did not appoint an executor 2. The appointment was refused 3. The will was disallowed 4. No will (intestate succession)
REMEDIAL LAW
WHO ARE INCOMPETENT TO SERVE AS EXECUTOR OR ADMINISTRATOR (1) Minor; (2) Non-resident (3) One who, in the opinion of the court, is unfit to exercise the duties of the trust by reason of a. Drunkenness b. Improvidence c. Want of understanding d. Want of integrity; or e. Conviction of an offense involving moral turpitude. [Rule 78 Sec 1] (4) Executor of an executor cannot, as such, administer estate of the first testator [Rule 78 Sec 2]
Has duty to present the will to court within 20 days after (1) he learns of the death of testator or (2) after he knew he No such duty was appointed as executor (if he obtained such knowledge after death of testator) unless will has reached the court in any manner
The list above is not exclusive. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. [Lim v. Diaz-Millarez (1966)]
The testator may provide that he may serve without a bond Required to file bond but the court shall unless exempted by direct him to post a law bond conditioned only to pay debts.
WHEN ARE LETTERS TESTAMENTARY OR OF ADMINISTRATION GRANTED Letters testamentary – it is an authority issued to an executor named in the will to administer the estate. It is issued once the will has been proved and allowed and if the executor named is competent, accepts the trust and gives bond. [FESTIN; Rule 78 Sec 4]
Compensation provided in the will controls, unless First part of Rule 85 renounced. Sec 7 applies If there’s no provision for compensation, Sec. 7 of Rule 85 shall apply.
Letters administration – authority issued by court to a competent person to administer the estate if: (1) No executor is named in will (2) Executor or executors named are incompetent, refuse the trust, or fail to give bond or (3) Person dies intestate. [Rule 78 Sec 6]
Any competent person may serve as an executor or administrator. Married woman may serve as executor or administrator and a marriage of a single woman shall not affect her authority so to serve under a previous appointment. [Rule 78 Sec 3] 225
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Court may reject order of preference when circumstances warrant. [Villamor v. Court of Appeals, (1988)]
B. ORDER OF PREFERENCE Order of preference in the grant of administration (1) 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. (2) 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, it may be granted to one or more of the principal creditors, if competent and willing to serve. (3) If there is no (2), it may be granted to such other person as the court may select. [Rule 78 Sec 6]
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. [In Re Suntay, (2007)]
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.” [HERRERA] Co-administrators may be appointed. [Matute v. Court of Appeals (1969)]
Next of kin are those entitled by law to receive the decedent’s properties. [Gonzalez v. Aguinaldo, et al., (1990)]
C. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION
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., (1990)]
Who may oppose Any person interested in a will. [Rule 79 Sec 1] 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. [Saguinsin v. Lindayag, 6 SCRA 874]
Mere failure to apply for letters of administration does not remove preference. [1 ALR 1247] General Rule: The court cannot set aside order of preference
Grounds (1) Incompetency of the person/s named in the will as executor/s, or (2) Contestant’s own right to the administration (ex. preferential right under Rule 78 Sec 6) [Rule 79 Sec 4]
Exception: If the person enjoying such preferential rights is (1) Unsuitable (2) Incompetent (3) Unwilling (4) Neglect to apply for letters 30 days after the death of the decedent 226
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Form required Grounds for opposition must be stated in writing; court shall then hear and pass upon sufficiency of such grounds. [Rule 79 Sec 1]
Order appointing regular administrator is appealable. [Rule 109]
Contents of a Petition for Letters of Administration (1) Jurisdictional facts; a. Death of testator; b. Residence at time of death in the province where probate court is sitting; or c. If he is an inhabitant of foreign country, his having left his estate in such province
If proven at a hearing that:
When Letters of Administration is issued:
(1) Notice has been given as required; and (2) That decedent left no will or there is no competent and willing executor [Rule 79 Sec 5] 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 Pano (1976)]
(2) Name, age and residence of heirs and the name and age of creditors; (3) Probable value of the estate; (4) Name of person to whom letter is prayed [Rule 79 Sec 2]
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. [Rule 79 Sec 6]
Defect in petition would not render void issuance of letters of administration. Jurisdictional facts (1) Death of the testator (2) His/her residence at the time of death in the province where the probate court is sitting or, (3) If an inhabitant of a foreign country, his/her having left his estate in such province [Diez v. Serra, (1927)]
D. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS
Publication and Notice Publication of notice for 3 weeks successively and notice to heirs, creditors and interested persons, if place of residence is known, are jurisdictional. [Rule 79 Sec 3 and Rule 76 Secs. 3 & 4]
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.
Simultaneous filing of Opposition and Petition: A petition may, at the same time, be filed for letters of administration to himself, or to any competent person or person named in the opposition. [Rule 79 Sec 4]
Purpose The bond posted by the administrators and executors is intended as an indemnity to the creditors, the heirs and the estate. [FESTIN]
Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings. NOT lack of jurisdiction on part of court. [HERRERA]
How is liability on the bond enforced? By motion or in a separate action. [FESTIN]
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Conditions on the bond (1) Make a 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; (2) To administer according to these rules, and if an executor, according to the will of the testator, all the 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, and dividends as shall be decreed by court. (3) Render a true and just account within 1 year and when required by court; and (4) Perform all orders of the court [Rule 81 Sec 1]
REMEDIAL LAW
(a) Have access to, and may examine and take copies of, books and papers relating to the partnership business, (b) Examine and make invoices of the property belonging to such partnership (c) The surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. [Rule 84 Sec 1] Failure to freely permit the exercise of the may subject any partner for contempt.
KEEP BUILDINGS REPAIR
IN
TENANTABLE
(a) Houses and other structures and fences belonging to the estate, and (b) Deliver the same in such repair to the heirs or devisees when directed so to do by the court. [Rule 84 Sec 2]
If the testator provides in his will that executor shall serve without a bond, the court may still require him to file a bond conditioned only to pay debts of testator. [Rule 81 Sec 2]
RIGHT TO POSSESSION MANAGEMENT OF THE REAL PERSONAL PROPERTIES
Joint bond Joint executors or administrators may be required by court to file either a separate bond from each or joint bond from all. [Rule 81 Sec 3]
AND AND
(a) So long as it is necessary for the payment of the debts and the expenses of administration (b) 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. [Rule 84 Sec 3]
Special Administrator Condition on the bond (1) Make and return true inventory; (2) Render accounting when required by court; (3) Deliver the estate of the deceased to the person appointed as regular executor or administrator, or other authorized person. [Rule 81 Sec 4]
When the estate of a deceased is already subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court. [Estate of Olave v. Reyes (1983)]
D.2. RESTRICTIONS ON POWERS OF EXECUTORS AND ADMINISTRATORS
D.1. GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME
HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY AT ALL TIMES
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: 228
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With all the interest, Profit Income of such estate and With the proceeds of as much of the estate as is sold by him, at the price at which it was sold. [Rule 85 Sec 1]
(b) Damages sustained may be charge and allowed against executor or administrator in his/her account; liable on his/her bond. [Rule 85 Sec 5]
PROHIBITED FROM PROFITING BY INCREASE OR LOSING BY DECREASE IN VALUE
(a) The amount paid by an executor/administrator for costs awarded against him shall be allowed in his administration account [Rule 85 Sec 6] (b) 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. (c) When the executor is an attorney, cannot charge against estate any professional fees for legal services rendered. [Rule 85 Sec 7]
ONLY NECESSARY EXPENSES SHALL BE ALLOWED
(a) 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 (b) Account for the excess (when sold for more) (c) If sold for less, not responsible for loss, if justly made (d) If settled claim for less - He is entitled to charge in his account only the amount he actually paid on the settlement [Rule 85 Sec 2] (e) Not accountable for debts due the deceased which remain uncollected without his fault [Rule 85 Sec 3]
ACCOUNTABLE FOR REALTY USED BY HIM
INCOME
Necessary expenses Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto. [Hermanos v. Abada (1919)]
FROM
Not considered as necessary expenses (1) Expenses on death anniversary of deceased because no connection with care, management and settlement of estate; (2) Expenses for stenographic notes and unexplained representation expenses; (3) 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 GuzmanCarillo (1978)]
(a) If the executor/administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent and 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. [Rule 85 Sec 4]
EXECUTOR OR ADMINISTRATOR TO MAKE INVENTORY AND RENDER ACCOUNT
ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY (a) Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or (b) Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss.
Inventory Of all real and personal estate of the deceased which has come into his possession or knowledge within 3 months after his appointment [Rule 83 Sec 1]
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Not included: (1) Wearing apparel of surviving husband or wife and minor children (2) The marriage bed and bedding (3) Such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased [Rule 83 Sec 2]
(2) By any cause, including an appeal from allowance or disallowance of a will. [Rule 80 Sec 1] Rule 86 Sec 8 provides that a special administrator may be appointed with respect to the settlement of the claim of an executor/regular administrator against the estate.
Allowance to surviving spouse and children The widow and minor or incapacitated children shall, during the settlement of the estate, receive such allowance under the direction of the court [Rule 83 Sec 3]
Procedure for Appointment 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 (1988)]
ACCOUNTING MANDATORY Within 1 year from the time of receiving letters testamentary or of administration unless the court otherwise directs [Rule 85 Sec 8]
Appointment of special administrator lies entirely in the sound discretion of the court. [De Gala v. Gonzales, 53 Phil. 104 (1929)]
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 (1961)]
EXAMINATION ON OATH BY COURT As to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof
OF
Regular Administrator
Special Administrator
Appointed by the court in the following instances: 1. Testator did not appoint an executor 2. The appointment was refused 3. The will was disallowed 4. No will (intestate succession)
Appointed by the court when: 1. there is DELAY in granting letters testamentary or administration 2. when the executor is a claimant of the estate 3. by any cause, including an appeal from allowance or disallowance of a will
Should pay the debts Cannot pay debts of of the estate the estate unless ordered by the court.
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. [Rule 85 Sec 9]
E. APPOINTMENT ADMINISTRATOR
REMEDIAL LAW
Order of Appointment Order of Appointment is final and appealable. is interlocutory and is not appealable
SPECIAL POWERS AND DUTIES ADMINISTRATOR
When appointed (1) When there is delay in granting letters testamentary or administration, or
OF
SPECIAL
(1) Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased, and 230
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(2) Preserve the same for the executor/administrator afterwards appointed, and (3) For that purpose may commence and maintain suits as administrator. (4) May sell only such perishable and other property as the court orders sold. (5) Not liable - to pay any debts of the deceased unless so ordered by the court. [Rule 80 Sec 2]
WHEN SPECIAL CEASES DUTIES
REMEDIAL LAW
(2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge the trust. [Rule 82 Sec 2] List enumerated is not exclusive. Court is invested with ample discretion in removal of administrator for as long as there is evidence of act or omission part of administrator not conformable to or in disregard of rules or orders of court which it deems as sufficient or substantial to warrant removal of administrator. [FESTIN]
ADMINISTRATOR
Examples of valid removal of an administrator by probate court (1) Administrator who disbursed funds of estate without judicial approval. [Cotia v. Jimenez (1958)] (2) False representation by administrator in securing his appointment. [Cabarrubias v. Dizon (1946)] (3) Administrator who holds interest adverse to that of the estate or his conduct shows unfitness to discharge the trust [Garcia v. Vasquez (1970)] (4) Administrator who has physical inability and consequent unsuitability to manage the estate. [De Borja v. Tan (1955)]
When letters testamentary/administration are granted on the estate of the deceased: (1) He shall deliver to the executor/administrator the goods, chattels, money, and estate of the deceased in his hands. (2) The executor/administrator may prosecute to final judgment suits commenced by such SA[Rule 80 Sec 3] Appointment of Special Administrator is interlocutory and is not appealable. [Garcia v. Flores, 101 Phil. 781 (1957)]
F. REVOCATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
Temporary absence in the state does not disqualify one to be an administrator of the estate [Gonzales v. Aguinaldo (1990)]
Revocation of administrator When the decedent’s will is allowed and proved after a letters of administration has been issued, the administration is deemed revoked.
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 (2010)]
Duty of administrator upon revocation of Letters (1) Surrender the letters to court; (2) Render his account within such time as the court may direct [Rule 82 Sec 1] Removal of executor or administrator Grounds (1) Neglects to: (a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court, or a duty expressly provided by these rules 231
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(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 (1983)]
(1) The remaining executor/administrator may administer the trust alone, unless the court grants letters to someone to act with him. (2) If there is no remaining executor/administrator, administration may be to any suitable person. [Rule 82 Sec 2] Validity of acts Acts of the executor/administrator before removal/resignation are valid. [Rule 82 Sec 3]
A. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS
Powers of new executor or administrator
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. [Rule 86 Sec 2]
(1) Collect and settle the estate not administered; (2) Prosecute and defend actions commenced by or against the former executor or administrator; and (3) Have execution on judgments recovered in the name of the former executor or administrator.
Exception Belated claims The Court has the 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 (1981); Rule 86 Sec 2]
Authority to sell granted by court to former executor or administrator may be renewed without further notice or hearing. [Rule 82 Sec 4]
VII. Claims against the Estate ESTATE BURDENED CREDITORS
WITH
LIEN
REMEDIAL LAW
Notice to creditors to be published; Affidavit of publication Executor/administrator shall cause publication of notice for 3 consecutive weeks successively in newspaper of general circulation in province and its posting in 4 public places in the province and in 2 public places in the municipality where the decedent last resided. [Rule 86 Sec 3]
OF
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 Tayaan, 12 Phil. 13]
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. [Rule 86 Sec 4]
PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE (1) To protect the estate of the deceased. 232
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If disputed: It may be proved and allowed or disallowed by the court as the facts may warrant [Rule 88 Sec 5]
Publication of notice is constructive notice to creditors and thus creditor would not be permitted to file claim beyond the period fixed in the notice on the bare ground that he had no knowledge of the administration proceedings. [Villanueva v. PNB (1963)]
Mutual claims may be set off against each other in such action. Effect if a debtor obtains a favorable judgment against the estate: 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
Statute of non-claims General Rule: Claim must be filed within the time fixed by the notice otherwise they are barred forever. [Rule 86 Sec 5]
The presentation of a money claim may be waived. [Ignacio v. Pampanga Bus co., Inc., (1967)]
Purpose: 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.
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 [Rule 86 Sec 6]
Claims Covered (Exclusive) (1) Claims for money against the decedent arising from contract - Express or implied - Due or not - Contingent or not (2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent.
ALTERNATIVE REMEDIES OF A M0RTGAGE CREDITOR UPON DEATH OF DEBTOR (1) Waive the security and claim the entire debt 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
The period, once fixed by the courts, is mandatory. Statute of non-claims supersedes statute of limitations when it comes to debts of deceased persons.
(2) 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
Exceptions: (1) When set forth as counterclaims in any action that the executor/administrator may bring against the claimants [Rule 86 Sec 5] (2) Belated claims (Sec. 2, Rule 86)
(3) 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. [Rule 86 Sec 7]
Contingent Claim When Allowed (1) When it becomes absolute; (2) Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims; and (3) Not disputed by executor/administrator
How to file for a claim: (1) Deliver the claim with the necessary vouchers to the clerk of court; and 233
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(2) Serve a copy thereof on the executor or administrator. [Rule 86 Sec 9]
B. CLAIM OF ADMINISTRATOR ESTATE
Additional requirements: (1) 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.
REMEDIAL LAW
EXECUTOR AGAINST
OR AN
Procedure to follow if the executor or administrator has a claim against the estate he represents (1) Executor/Administrator shall give notice thereof, in writing, to the court; (2) The court shall appoint a special administrator who shall have the same powers and liabilities as the general executor/administrator in the adjustment of such claim. (3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim. [Rule 86 Sec 8]
On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be list 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.
Case law provides that these remedies are distinct, independent, and mutually exclusive remedies that can be alternatively pursued by the mortgage creditor for satisfaction of his credit in case the mortgagor dies. [FESTIN]
(2) When the claim is due - it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant.
C. PAYMENT OF DEBTS Debts Paid in Full if Estate Sufficient (1) After all money claims heard and ascertained; and (2) It appears that there are sufficient assets to pay the debts
(3) If the claim is not due, or is contingent, when filed – it must also be supported by affidavits stating the particulars thereof. (4) 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.
Executor/administrator shall pay the same within the time limited for that purpose. [Rule 88 Sec 1]
Answer by executor/administrator Shall be filed within 15 days after copy of claim has been served upon him. Executor or administrator may interpose any counterclaim. Said counterclaim is regarded as compulsory, as the failure to file the same shall bar the claim forever. [Rule 86 Sec 10]
The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administrator. The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled. [Dinglasan v. Chia, (1956)]
Judgment of court approving or disapproving a claim shall be appealable as in ordinary cases. [Rule 86 Sec 13; Rule 109]
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Part of Estate from Which Debt Paid (in order of preference)
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(2) If estate insolvent - Retain a portion equal to the dividend of the other creditors. [Rule 88 Sec 4]
PORTION OF PROPERTY DESIGNATED IN THE WILL; PERSONAL PROPERTY; THEN
PAYMENT OF CONTINGENT CLAIM (1) If claim becomes absolute within 2 years limited for creditors and allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. (2) Claim not presented after becoming absolute within 2 year period and allowed – The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled; But the assets so distributed may still be applied to the payment of the claim when established, 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. [Rule 88 Sec 5]
(1) Real property
IF TESTATOR DESIGNATES IN HIS WILL PORTION OF ESTATE FOR PAYMENT OF DEBT, EXPENSES OF ADMINISTRATION, OR FAMILY EXPENSES, THEY SHALL BE PAID ACCORDING TO SUCH PROVISIONS; IF NOT SUFFICIENT – THEN PART OF ESTATE NOT DISPOSED OF BY WILL SHALL BE APPROPRIATED. GENERAL RULE: PERSONAL ESTATE NOT DISPOSED OF BY WILL SHALL BE FIRST CHARGEABLE EXCEPTIONS:
Court to Fix Contributive Shares Where Devisees, Legates, or Heirs Have Been in Possession
(1) Not sufficient for the purpose; or (2) Its sale will redound to the detriment of the participants for the estate
POSSESSION BEFORE EXPENSES ARE PAID
DEBTS
AND
Court shall - Hear and settle the amount of their several liabilities - Order how much and in what manner each shall contribute - May issue execution as circumstances require. [Rule 88 Sec 6]
IN WHICH CASE— (1) The whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor/administrator, (2) Court approval must be obtained first, and (3) Any deficiency shall be met by contributions in accordance with the provisions of Sec. 6 of this rule.(contributive shares of devises, legatees and heirs in possession) [Rule 88 sec 3]
LIABILITY OF HEIRS AND DISTRIBUTES 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 (1930)]
Estate to Be Retained to Meet Contingent Claims If court is satisfied that a contingent claim is valid: (1) It may order the executor/administrator to retain in his hands sufficient estate for the purpose of paying the contingent claim when such becomes absolute.
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Executor/administrator pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of credits) [Rule 88 Sec 7]
REMEDIAL LAW
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 [Rule 88 Sec 11]
Dividends to Be Paid in Proportion to Claims If no assets sufficient to pay credits of any one class of creditors after paying preferred credits, Each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. [Rule 88 Sec 8]
If Appeal Taken From a Decision of the Court Concerning the Claim The court may: (1) Suspend the order for payment or order the distribution among creditors whose claims are definitely allowed (2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed.
Insolvent Non-Resident His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. [Rule 88 Sec 9]
When a disputed claim is finally settled, the court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. [Rule 88 Sec 12]
Insolvent Resident with Foreign Creditors and Foreign claims proven in another country (1) Executor/administrator in the Philippines had knowledge of the presentation of such claims in such country; and (2) Executor/administrator had opportunity to contest such allowance
Instances when court may make further orders for distribution of assets (1) If whole of the debts not paid on first distribution; and (2) If the whole assets not distributed (3) Other assets afterwards come to the hands of executor/administrator. [Rule 88 Sec 13]
The court shall: (1) Receive a certified list of such claims, when perfected in such country, (2) And add the same to the list of claims proved against the deceased person in the Philippines (3) So that a just distribution of the whole estate may be made equally among all its creditors. [Rule 88 Sec 10]
Creditors to be Paid in Accordance With Terms of Order When an order is made for the distribution of assets among creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order. [Rule 88 Sec 14]
Principle of Reciprocity But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to their respective claims. [Rule 88 Sec 10]
Time for paying debts and legacies General Rule: Not exceeding 1 year in the first instance Exception: Court may extend the period, after hearing and notice, 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.
Order for Payment of Debts Before the expiration of the time limited for the payment of the debts the court shall order the payment thereof, and the distribution of the 236
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[RULE 88 SEC 15]
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(2) Written notice to all heirs, legatees, devisees residing in the Philippines; (3) Court orders sale of personal property or sale or mortgage of real property; (4) Proceeds of such sale shall be used to pay debts and expenses.
Grounds for Extension (1) Original executor/administrator dies (2) New administrator appointed
REQUISITES (1) Executor/administrator must apply. (2) Notice of the time and place of hearing. (3) Court must hear the application.
VIII. Actions by and against executors and administrators
Personal property may, upon order, be sold: (1) To pay debts, expenses, legacies (Sec. 1, Rule 89) (2) If it appears necessary for the preservation of the property (Sec. 1, Rule 89) (3) If sale will be beneficial to the heirs, devisees, legatees and other interested persons and is not inconsistent with the provisions of the will (Sec. 4, Rule 89)
A. ACTIONS EXECUTORS
BY
AND
AGAINST
Actions that may be commenced directly against executor or administrator (1) Recovery of real or personal property or interest therein (2) Action to enforce a lien thereon and (3) Actions to recover damages for an injury to a person or property [Aguas v. Llenos (1962); Rule 87 Sec 1] The aforementioned instances are deemed actions that survive the death of the decedent: [FESTIN]
Real property may, upon order, be sold, mortgaged, encumbered to pay debts when: (1) Personal estate is insufficient to pay the debts (2) Sale of personal estate may injure the business of persons interested in the estate (3) Property appropriated by testator in his will is insufficient to pay debts (Sec. 2, Rule 89)
Actions which may NOT brought against Administrators Claim for the recovery of money or debt or interest cannot be brought against executors/administrators. [Aguas v. Llenos (1962)]
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 claims against the estate. [Aldamiz v. Judge of CFI-Mindoro (1949)]
Executor or Administrator may Bring or Defend Actions Which Survive Death For the recovery or protection of the property or rights of the deceased in actions for causes which survive death of decedent(Sec. 2, Rule 87)
Exceptions: 1. To satisfy the distributive shares of devisees, legatees, and heirs in possession of the decedent’s assets. 2. To enforce payment of expenses of the partition. 3. To satisfy the costs when a person is cited for examination in probate proceedings [FESTIN]
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. [Javier v. Araneta, 93 Phil. 1115; Aguas v. Llenos, supra]
Proper procedure for payment of debts (1) Motion of administrator for sale; 237
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A mortgage belonging to the estate may be foreclosed by the executor or administrator. [Rule 87 Sec 5]
REMEDIAL LAW
Double Value Rule A person who, before the granting of the letters testamentary or administration of the estate, embezzles or alienates any money, goods, chattels or effects of the deceased, shall be liable to an action in favor of executor or administrator for double the value of the property sold, embezzled or alienated.
General Rule: Heirs have no legal standing to sue for the recovery of property of the estate against the executor or administrator during the pendency of the administration proceedings. [rule 87 Sec 3] Exception: (1) If executor or administrator is unwilling to bring a suit; (2) When the executor or administrator is made a party defendant where he is alleged to have participated in the act complained of; (3) Where there is no appointed administrator; [FESTIN]
When executor or administrator may bring action for recovery of property fraudulently conveyed by deceased (1) If there is 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 (2) Deceased had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors; and (3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime.
B. RECOVERY OF PROPERTY CONCELEAD, EMBEZZLED OR FRADULENTLY CONVEYED Proceedings when property concealed, embezzled or fraudulently conveyed The court may cite any person suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of the deceased, to appear before it and be examined on oath upon complaint by 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.
Process of recovery by the executor/administrator of property fraudulently conveyed (1) Commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt or credit for benefit of the creditors (2) Provided, creditors make an application and pay such part of the costs and expenses or give security therefor. [Rule 87 Sec 9]
WHEN RECOVERY BY CREDITOR OF PROPERTY FRAUDULENTLY CONVEYED MAY BE DONE Any creditor may commence and prosecute to final judgment a like action for the recovery of the subject of the conveyance or attempted conveyance if the following requisites are satisfied:
Purpose To elicit information, secure evidence or to investigate and take testimony for use in an independent action. The court in such proceedings lacks power to adjudicate titles or determine controverted rights. [HERRERA]
(1) If executor/administrator commence such action 238
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(a) With court permission (b) In the name of the executor/administrator (c) He files a bond, conditioned to indemnify the executor/administrator against the cost and expenses incurred by such action
REMEDIAL LAW
interested in the estate and where testator has not otherwise made sufficient provision for payment of debts, expenses and legacies; [Rule 89 Sec 2] B. Others: (2) Where sale is beneficial to interested persons, although not necessary to pay debts, expenses, or legacies [Rule 89 Sec 4] (3) To pay for debts, expenses or legacies of estate of deceased in foreign country [Rule 89 Sec 5] (4) If deceased was in his lifetime under contract, binding in law, to deed real property or interest therein [Rule 89 Sec 8] (5) Where deceased held real property in trust for another person [Rule 89 Sec 9]
(2) If conveyance or attempt is made in favor of executor/administrator (a) No need for court permission (b) No need for Bond. (c) Action shall be brought in the name of all the creditors Effect Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. [Rule 87 Sec 10]
In (1) and (2), sale of real property may be done in lieu of personal property of estate if it clearly appears that such sale etc., would be beneficial to persons interested.
C. SALES, MORTGAGES, AND OTHER ENCUMBRANCES
In (3) the sale shall be authorized if not inconsistent with provisions of the will and proceeds of the sale shall be assigned to persons entitled to the estate in the proper proportions.
Order of Sale of personalty The court upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying (1) debts, expenses of administration, or legacies, or (2) expenses for the preservation of the property. [Rule 89 Sec 1]
In (5), conveyance would not be authorized if assets in the hands of the executor or administrator will be reduced as to prevent creditor from receiving debt or diminish his dividend. Persons interested may prevent such sale, etc. by giving bond No authority authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted in (1) and (2) above if any person interested in the estate gives a bond, in a sum to be fixed by the court
When court may authorize sale, mortgage or encumbrance of realty A. Though personalty not exhausted:
WHEN PERSONAL ESTATE IS NOT SUFFICIENT TO PAY DEBTS, EXPENSES OF ADMINISTRATION AND LEGACIES; OR
Conditions of the bond: to pay the debts, expenses of administration, and legacies within such time as the court directs;
(1) If sale of personal estate may injure the business or such other interests of those 239
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IX. Distribution partition
Who may claim on the bond: Such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either. [Rule 89 Sec 3]
and
BEFORE THERE COULD BE A DISTRIBUTION OF ESTATE, THE FOLLOWING STAGES MUST BE FOLLOWED:
Regulations for granting authority to sell, mortgage or otherwise encumber estate (1) The executor/administrator shall file a written petition setting forth the following: a. Debts due from the deceased, the expenses for administration, the legacies; b. Value of the personal estate; c. Situation of the estate to be sold, mortgaged, encumbered; and d. Such other facts showing sale etc., is necessary or beneficial; (2) The court will fix a time and place for hearing such petition and cause notice to be given personally or by mail to persons interested, and publication if deem proper; (3) The court may require executor/administrator to give additional bond conditioned on accounting for proceeds of sale etc.; (4) The court may authorize sale to be public or private; (5) If estate is to be sold at auction, the mode of giving notice shall be governed by provisions concerning notice of execution sale; (6) Certified copy of the order of the court, plus deed of the executor or administrator for real estate sold, mortgaged, or encumbered shall be registered in registry of deeds where property is located;[Rule 89 Sec 7]
(1) Liquidation of the estate i.e. payment of obligations of the deceased. (2) Collation and Declaration of heirs - to determine to whom the residue of the estate should be distributed. - Determination the right of a natural child - Determination of proportionate shares of distributes. Afterwards, the residue may be distributed and delivered to the heirs. [HERRERA] Powers of the court in distribution and partition of estate: (1) Collate; (2) Determine the heirs; and (3) Determine the share of each heirs. Court may determine questions as to advancement made by decedent Advancements made or alleged to have been made to heirs by decedent may be determined by court having jurisdiction of estate; and the final order of the court shall be binding on person raising the questions and on the heir. [Rule 90 Sec 2]
A. LIQUIDATION General Rule: Before an order of distribution or assignment, it must be shown that the “debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate” have been paid.
Deed for sale, mortgaged or encumbrance The deed executed by the executor or administrator shall be valid as of executed by deceased in his lifetime [Rule 89 Sec 7, 8]
Exception: If the distributees give a bond conditioned on the payment of above obligations [Rule 90 Sec 1] The part distributed must not be subject to any controversy or appeal. [Rule 109 Sec 2]
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mistake or inadvertence not imputable to negligence. [Vda. De Alberto v. CA (1989)]
B. PROJECT OF PARTITION A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. [Solivio v. CA, (1990)]
C. 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: (1) Demand his share through a proper motion in the same probate or administrative proceedings, or (2) 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, (1972)]
The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. [3 Moran 541, 1980 Ed.] It is the court that makes that distribution of the estate and determines the persons entitled thereto: (1) On application of executor/administrator or person interested in the estate (2) Notice (3) Hearing
D. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION
Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled.
General Rule: Writ of Execution is not allowed in probate proceedings [Vda de Valera v. Ofilada, 59 SCRA 96]
Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession.
Exceptions: (1) To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent’s assets (Sec. 6, Rule 88) (2) To enforce payment of expenses of partition; [Rule 90 Sec 3] and (3) To satisfy the costs when a person is cited for examination in probate proceedings [Rule 142 Sec 13]
If there is a controversy as to who are heirs or shares such shall be heard and decided as in ordinary cases. [Rule 90 Sec 1] Effect of Final Decree of Distribution (1) In rem and binding against the whole world. (2) All persons having interest in the subject matter involved, whether they are notified or not, are equally bound. [Philippine Savings Bank v. Lantin (1983)] (3) The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them.[Ramon v. Ortuzar (1951)]
When does a probate court lose jurisdiction of an estate under administration? The probate court loses jurisdiction of an estate under administration only after payment of all debts, and the remaining estate delivered to the heirs entitled to receive the same. [Guilas v. Judge of CFI of Pampanga]
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 241
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X. Escheat
Procedure Solicitor General or his representative in behalf of the Republic of the Philippines will file the petition: If deceased is a resident—in the RTC of the province where he last resided If non-resident—in the RTC of the province in which he had an estate Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part If the petition is sufficient in form and substance, the court shall make an order fixing the date and place for the hearing (which shall not be more than 6 months after entry of order) The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best The court shall hear the case and judge whether or not the estate shall be escheated To whom property escheated will be assigned: If personal property – to the municipality or city where the deceased last resided, If real property – to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines –the whole estate may be assigned to the respective municipalities or cities where the same is located.
Escheat is a proceeding where the real and personal property of a person deceased in the Philippines, who dies without leaving any will and without any legal heirs, becomes the property of the State. It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction.
A. WHEN TO FILE Three instances of Escheats: (1) When a person dies intestate leaving property in the Philippines but leaving no heir [Rule 91 Sec 1] (2) Reversion proceedings in alienations in violation of Constitution or other statute [Rule 91 Sec 5] (3) Unclaimed Balances Act (Act No. 3936 as amended by PD 679) – dormant accounts for 10 years shall be escheated. Where to file: (1) If Resident – RTC of the province where the deceased last resided; (2) If Non-resident – RTC of the pace where his estate is located. [Rule 91 Sec 1]
B. REQUISITES PETITION
FOR
FILING
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OF
(1) A person died intestate (2) He left no heirs or persons by law entitled to the same (3) Deceased left properties [City of Manila v. Archbishop of Manila, 36 Phil. 815; Rule 91, Sec.1] Escheat proceedings must be initiated by the Government through the Solicitor General. The Court must fix a date and place for hearing, which shall not be more than 6 months after the entry of the order
Such estate shall be for the benefit of public 242
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schools, and public charitable institutions and centers in said municipalities or cities.
XI. Trustees
Court may order, upon motion or motu propio, that a permanent trust be established so that only the income from the property shall be used.
Note: This rule only applies to express trusts and not implied trusts which arise by operation of law. [REGALADO]
A. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
The right of escheat may be waived, either expressly or impliedly. [Roman Catholic Archbishop of Manila v. Monte de Peidad, et al.,(1939)]
Trustee
Executor/Administrator
Accounts must be Accounts are not under under oath and oath and shall be filed annually filed only at such times as may be required by court, except for initial and final submission of accounts
C. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM. Period to file claim to the estate A claim must be made within 5 years from date of judgment; otherwise, barred forever [Rule 91 Sec 4]
Court which has jurisdiction is RTC or MTC if appointed to carry into effect the Court which has provisions of a will; If jurisdiction may be the trustee dies, resigns, or RTC or MTC removed in a contractual trust, RTC has jurisdiction to appoint new trustee
By whom: Devisee, legatee, heir, surviving spouse, or other person entitled to such estate. [Rule 91 Sec 4] Effect of claim Possession and title to the estate shall be given. If estate has already been sold, then the city/municipality shall be accountable for the proceeds, less reasonable charges for care of the estate.
May sell or encumber property of the estate held in trust if necessary or expedient upon order of the court
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May sell, encumber, or mortgage property if it is necessary for the purpose of 1)paying debts, expenses of administration or legacies, or 2) for the preservation of property or if 3) sale will be beneficial to heirs, legatees, or devisees (upon application to court with written notice to heirs)
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B. CONDITIONS OF THE BOND
Order of sale has no Order of sale has no time limit time limit
General Rule: Before entering the duties of his trust a trustee shall file with the clerk of court having jurisdiction of the trust a bond in the amount fixed by court
Appointed to carry into Appointed by court to effect the provisions of settle estate of a a will or written decedent instrument May be exempted from filing of bond if 1) provided in the will or 2)beneficiaries requested exemption
Not exempted from filing of bond even if such exemption is provided in the will; However bond is only conditioned upon payment of debts.
Trusteeship is terminated upon turning over the property to the beneficiary after expiration of trust.
Services of executor/administrator is terminated upon payment of debts of the estate and the distribution of property to the heirs
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Exception: The trustee may be exempted from giving a bond when requested by: 1. Testator; 2. All persons beneficially interested in the trust. [Rule 98 Sec 5] Effect of neglect to file bond A trustee who neglects to file a bond shall be considered to have declined or resigned the trust . [Rule 98 Sec 5] Conditions (1) Inventory That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge.
No obligation to pay Must pay the debts of debts of the beneficiary the estate. or trustor
(2) Faithful management That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed
A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority.
(3) Accounting That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order
The duties of executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons. [Araneta v. Perez (1962)]
(4) Settlement of account and delivery of estate. That at the expiration of his trust he will settle his account in court and pay over and deliver all 244
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the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto. [Rule 98 Sec 6]
Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic.
C. REQUISITES FOR THER REMOVAL AND RESIGNATION OF A TRUSTEE
This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. [HERRERA]
(1) Petition by parties beneficially interested; (2) Due notice to the trustee; (3) Hearing.
XII. Guardianship
Who may file a petition: Parties beneficially interested.
Rules 92-97 are now only applicable to guardianship over incompetent persons who are not minors.
D. GROUDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE
Guardianship over minors is governed by A.M. No. 03-02-05 SC or Rule on Guardianship of Minors.
Grounds for removal (1) Removal appears essential in the interest of petitioner; (2) Trustee is insane; (3) Otherwise incapable of discharging his trust; or (4) Evidently unsuitable. [Rule 98 Sec 8]
Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself. [HERRERA]
Resignation He may resign but the court will determine if resignation is proper. [Rule 98 Sec 8]
E. EXTENT TRUSTEE
OF
AUTHORITY
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Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs. [HERRERA]
OF
Nature of Possession The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same.
Basis: Parens Patriae It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties [Nery v. Lorenzo (1972)].
A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust [Salinas v. Tuazon (1931)].
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Kinds of Guardians (1) Legal Guardian – deemed as guardian by provision of law, without need of court appointment (Art. 225, FC) (2) Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action (3) Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. a. Guardian over the person b. Guardian of the property c. General guardian (both person and property) [REGALADO]
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Specific duties (1) To pay the just debts of the ward out of: (a) Personal property and the income of the real property of the ward, if the same is sufficient (b) Real property of the ward upon obtaining an order for its sale or encumbrance. [Rule 96 Sec 2] (2) To settle all accounts of his ward [Rule 96 Sec 3] (3) To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects [Rule 96 Sec 3] (4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose [Rule 96 Sec 3] (5) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so [Rule 96 Sec 4] (6) To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: (a) Authority granted by the court after hearing (b) Notice to relatives of the ward, and (c) A careful investigation as to the necessity and propriety of the proposed action. [Rule 96 Sec 5] (7) To submit to the court a verified inventory of the property of the ward:
A. GUARDIANSHIP OF INCOMPETENT PERSONS NOT MINORS Procedure Filing of Petition Court issues order setting time for hearing Notice to the incompetent and persons mentioned in the petition Publication only if incompetent is a nonresident Hearing (alleged incompetent must be present if able to attend) If granted, service of judgment to the Local Civil Registrar and payment of bond of the guardian.
GENERAL POWERS AND DUTIES OF GUARDIANS (1) Care and custody of the person of his ward and management of his property; or (2) Management of his property only; (3) Management of property within the Philippines (in case of non-resident ward). [Rule 96 Sec 1] 246
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(a) Within three months after his appointment (b) Annually, and (c) Whenever required upon the application of an interested person. [Rule 96 Sec 7] (8) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition [Rule 96 Sec 7] (9) To render to the court for its approval an accounting of the property: (a) One year from his appointment (b) Every year thereafter, and (c) As often as may be required. [Rule 96 Secs 7 & 8] Reimbursement of Reasonable Expenses The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust. [Rule 96 Sec 8]
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guardian to institute the appropriate action to obtain the possession of and secure title to said property. [Cui v. Piccio (1952)] Exception: Court may direct delivery of property to the guardian only in extreme cases, where property clearly belongs to the ward or where his title thereto has already been judicially decided. [Cui v. Piccio (1952)] Selling and Encumbering the Property of the Ward Court may order that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property Grounds (1) When the income of a property under guardianship is insufficient to maintain the ward and his family; or (2) When it is for the benefit of the ward [Rule 95 Sec 1]
Payment of Compensation Court may order payment of reasonable compensation not exceeding 15% of the net income of the ward. [Rule 96 Sec 8]
Sale must first be confirmed by the court and that until such confirmation, not even equitable title passes. [HERRERA]
Embezzlement, Concealment, or Conveyance of Ward’s Properties
Order for Sale or Encumbrance Contents: (1) Causes why sale or encumbrance is necessary or beneficial; (2) Manner of sale (public or private); (3) Time and manner of payment; (4) Security, if payment deferred; (5) Additional bond from guardian, if required. [Rule 95 Sec 4]
Upon complaint by the: (1) The guardian or ward, or (2) Any person having actual or prospective interest in the property of the ward; The court may cite the suspected person to appear for examination and make such orders for the security of the estate. [Rule 96 Sec 6] General Rule: Purpose of the proceeding is to secure evidence from persons suspected of embezzling, concealing or conveying any property of the ward so as to enable the
Duration of Order of Sale or Encumbrance No order of sale granted in pursuance of this section shall continue in force for more than 1
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year after granting of the same, without a sale being had. [Rule 95 Sec 4]
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monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; (4) To perform all orders of the court and such other duties as may be required by law. [Rule 94 Sec 1; Sec. 14 AM 03-02-05]
Investment of Proceeds and Management of Property The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward.
B. RULE IN GUARDIANSHIP OVER MINOR (A.M. NO. 03-02-05-SC)
The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. [Rule 95 Sec 5]
General Rule: The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. [Sec. 3; also Art. 225, FC] In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. [Art. 225, FC]
CONDITIONS OF THE BOND OF THE GUARDIAN
However, if the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond.
(Applicable for both Guardianship of Minors and incompetents) (1) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete inventory of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; (2) To faithfully execute the duties of his trust, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; (3) To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and
Petition for Appointment of Guardian Who may file (1) Resident minor: (a) Any relative; or (b) Other person on behalf of a minor; or (c) The minor himself, if 14 years of age or over; or (d) The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized. [Sec. 2] (2) Non-resident minor who has property in the Philippines: (a) Any relative or friend of such minor; or
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(b) Anyone interested in his property, in expectancy or otherwise. [Sec. 12]
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Order of Preference in Appointment (in default of parents or a court-approved guardian)
Where to file
(1) The surviving grandparent. In case several grandparents survive, the court shall select any of them taking into account all relevant considerations.
Resident minor - Family Court of the province or city where the minor actually resides. Non-resident minor - Family Court of the province or city where his property or any part thereof is situated [Sec. 3]
(2) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified. (3) The actual custodian of the minor over 21 years of age, unless unfit or disqualified.
Grounds for filing
(4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor. [Sec 6]
(1) Death, continued absence, or incapacity of his parents;
Contents of petition
(2) Suspension, deprivation or termination of parental authority;
(1) Jurisdictional facts;
(3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or
(2) Name, age and residence of the prospective ward;
(4) When the best interests of the minor so require. [Sec 4]
(3) Ground rendering the appointment necessary or convenient;
Qualifications of Guardians
(4) Death of the parents of the minor or the termination, deprivation or suspension of their parental authority;
The court shall consider the guardian’s: (1) Moral character; (2) Physical, condition;
mental
and
(5) Remarriage of the minor’s surviving parent;
psychological
(6) Names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody;
(3) Financial status; (4) Relationship of trust with the minor; (5) Availability to exercise the powers and duties of a guardian for the full period of the guardianship;
(7) Probable value, character and location of the property of the minor;
(6) Lack of conflict of interest with the minor;
(8) Name, age and residence of the person for whom letters of guardianship are prayed. [Sec 7]
(7) Ability to manage the property of the minor. [Sec 5] Grounds are not exhaustive. [HERRERA] 249
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The petition shall be verified and accompanied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. [Sec 7
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special notice to be given. Case Study Report Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing.
Who may file Opposition (1) Any interested person by written opposition [Sec. 10] (2) The social worker ordered to make the case study report, may intervene on behalf of the minor if he finds that the petition for guardianship should be denied [Sec. 9]
Hearing
Grounds for Opposition (1) Majority of the minor;
Compliance with notice requirement must be shown.
The prospective ward shall be presented to the court. If the minor is non-resident, the court may dispense with his presence.
At the discretion of the court, the hearing on guardianship may be closed to the public.
The records of the case shall not be released without court approval.
(2) Unsuitability of the person for whom letters are prayed. [Sec. 10] Procedure Filing of petition. Court shall fix a time and place for hearing.
Notice requirement
Issuance or denial of letters of guardianship.
Court shall cause reasonable notice to be given to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over -
Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order.
For non-resident minors, notice shall be given to the minor by publication or any other means as the court may deem proper.
The court may also direct other general or
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Powers and Duties
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(3) Wasted or mismanaged the property of the ward; or
In general
(4) Failed to render an account or make a return for thirty days after it is due. [Sec. 14]
(1) Guardian of resident minor: Care and custody of the person of his ward and the management of his property, or only the management of his property.
Resignation Ground: Any justifiable cause.
(2) Guardian of non-resident minor: Management of all his property within the Philippines [Sec. 17]
Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. [Sec. 24]
Bonds of Guardians Before a guardian enters upon the execution of his trust, or letters of guardianship issue, he must file a bond as determined by the Court. [Sec. 14]
Termination Grounds
*Conditions of the bond are similar to those for guardians of incompetent persons.
(1) The ward has come of age; or (2) The ward has died.
Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond. [Sec. 15]
How Terminated: (1) Court motu proprio guardianship; or
Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. [Sec. 15]
terminates
(2) Upon verified motion of any person allowed to file a petition for guardianship. The guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. [Sec. 25]
Removal, Resignation, and Termination of Guardianship
The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices. [Sec. 26]
Removal How: Upon reasonable notice to the guardian. Grounds: The guardian: (1) Becomes insane or otherwise incapable of discharging his trust; or (2) Is found to be unsuitable; 251
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XIII. Adoption A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION Domestic Adoption (RA 8552)
Inter-country Adoption (RA 8043)
Kind of proceedings Judicial Adoption
Extra-judicial Adoption
What it governs RA 8552 amended Art. 183 – 193 of the Family RA 8043 governs adoption of Filipinos by Code and is the governing law for Filipino citizens foreigners and non-resident citizen and is adopting other Filipinos (whether relatives or implemented by the Inter-Country Adoption Board strangers) with some exceptions. Rescission of adoption is no longer allowed. Definition of “child” “Child” is a person below 18 years of age [Sec. 3(a)] “Child” means a person below fifteen (15) years of age unless sooner emancipated by law [Sec 3 (b)] Who may adopt (1) Any Filipino citizen; (2) Any alien possessing the same qualifications An alien or Filipino citizen permanently residing for Filipino nationals; abroad may file an application for inter-country (3) The guardian with respect to the ward [Sec. 7] adoption of a Filipino child. [Sec. 9]
Qualifications Filipino Citizen (a) legal age, in possession of full civil capacity and legal rights; (b) of good moral character, has not been convicted of any crime involving moral turpitude; (c) emotionally and psychologically capable of caring for children; (d) at least sixteen (16) years older than the adoptee (waived when adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent) [Sec. 7(a)] Alien (a) same as qualifications of Filipino citizens; and (b) His/her country has diplomatic relations with the Republic of the Philippines; 252
(a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; (b) if married, his/her spouse must jointly file for the adoption; (c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; (d) has not been convicted of a crime involving moral turpitude; (e) is eligible to adopt under his/her national
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(c) He/she has been living in the Philippines for at least 3 continuous years prior to filing of application and maintains such residence until adoption decree is entered; (d) That he/she has been certified by his/her diplomatic/consular office or any appropriate government agency that he/she has legal capacity to adopt in his/her country; (e) His/her government allows the adoptee to enter the country as his/her adopted child. Residency and certification of qualification may be waived if: i. former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or ii. one who seeks to adopt legitimate child of his/her Filipino spouse; or iii. one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse. [Sec. 7(b)]
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law; (f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; (g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; (h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and (i) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. [Sec. 9]
Who may be adopted The following may be adopted: (a) Any person below 18 years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded; or (f) A child whose biological or adoptive parent(s) has died: provided that no proceedings shall be initiated within 6 months from time of death of said parents. [Sec. 8]
Only a legally free child may be the subject of inter-country adoption. [Sec 8] Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.[Sec. 3(f)]
Where to file application Family Court of the place where adopter resides
Either with the Philippine Regional Trial Court having jurisdiction over the child, or with the InterCountry Adoption Board, through an intermediate 253
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agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, [Sec. 10] What the petition for adoption may include May include prayer for change of name, Only petition for adoption rectification of simulated birth or declaration that the child is foundling, abandoned, dependent or neglected child
Annexes RA 8552 does not provide for any annexes but Sec Application must be supported by the following 11 AM 02-6-02-SC Rule on Domestic and documents (written and officially translated in Intercountry Adoption, requires the following to be English): annexed to the petition (a) Birth certificate of applicant(s); (a) Birth, baptismal or foundling certificate, as (b) Marriage contract, if married, and divorce decree, if applicable; the case may be, and school records showing the name, age and residence of (c) Written consent of their biological or adoptive children above ten (10) years of age, in the the adoptee; form of sworn statement; (b) Affidavit of consent of the following: (d) Physical, medical and psychological evaluation 1. The adoptee, if ten (10) years of age by a duly licensed physician and psychologist; or over; (e) Income tax returns or any document showing 2. The biological parents of the child, if the financial capability of the applicant(s); known, or the legal guardian or the (f) Police clearance of applicant(s); child-placement agency, child-caring (g) Character reference from the local agency, or the proper government church/minister, the applicant's employer and a member of the immediate community who instrumentality which ahs legal have known the applicant(s) for at least five (5) custody of the child; years; and 3. The legitimate and adopted children (h) Recent postcard-size pictures of the of the adopter and of the adoptee, if applicant(s) and his immediate family; [Sec. any, who are ten (10) years of age or 10] over; 4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and 5. The spose, if any, of the adopter or adoptee. (c) Child study report on the adoptee and his biological parents; (d) If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he 254
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has the legal capacity to adopt in his country and that his country and that his government allows to adoptee to enter his country as his own adopted child unless exempted under Section 4 (2); (e) Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and (f) Decree of annulment, nullity or legal separation of the adopter as well as that of his biological parents of the adoptee, if any. Publication Petition must be published at least once a week No publication requirement. for 3 consecutive weeks in a newspaper of general circulation in the province or city where the court is situated; Rescission of adoption is no longer allowed. Supervised Trial Custody For at least six (6) months within which the parties Trial period for 6 months in country of adopter for are expected to adjust psychologically and at least 6 months; Only after lapse of period shall a emotionally to each other and establish a bonding decree of adoption be issued. [Sec. 14] relationship. During said period, temporary parental authority shall be vested in the adopter(s). Period may be reduced by court if in the best interest of adoptee. [Sec 12] Penalties Any gov’t official, employee or functionary who shall be found guilty of violating any of the Same [Sec. 17] provisions shall automatically suffer suspension until resolution of the case.
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Pertinent statutes and rules: RA 8552 (Domestic Adoption Act) RA 8043 (Inter-Country Adoption Act) A.M. 02-6-02-SC (Rule on Domestic and Inter-Country Adoption) A.M. 02-1-19-SC (Re Proposed Rule on Commitment of Children) A.M. 03-04-04-SC (Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors)
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authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s). [Sec. 3] General Rule: Husband and wife shall adopt jointly Exceptions: 1) If one spouse seeks to adopt the legitimate child of other 2) If one spouse seeks to adopt his own illegitimate child, provided the other spouse has signified his/her consent 3) If spouses are legally separated [Sec 7(c)]
Adoption A juridical act which creates between two persons a relation similar to that which results from filiation. [Prasnick v. Republic, 98 Phil. 669 (1956)]
PROCEDURE Order of hearing
It is a proceeding in rem. Objective: Best interest of the child
Publication at least once a week for three consecutive weeks in newspaper of general circulation in province or city where the court is situated. Court shall notify the Solicitor General if the petition prays for a change of name.
Only an adoption made in pursuance with the procedures laid down under the Rules on Domestic and Inter-Country Adoption is valid in this jurisdiction. Adoption is strictly personal between the adopter and the adopted. [Teotico v. Del Val (1965)]
Child and Home Study Report
Construction of adoption statutes: All sections are designed to protect the best interests of the adoptee.
Hearing within six months from issuance of Order
B. DOMESTIC ADOPTION ACT
Supervised Trial Custody for at least six (6) months
RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children.
Decree of Adoption
“A child legally available for adoption” It refers to a child who has been voluntarily or involuntarily committed to the DSWD or to a duly licensed and accredited child-placing or child caring agency, freed of the parental
Venue: The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.
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[Sec. 6 AM 02-6-02 Rule on Domestic and InterCountry Adoption]
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Where to file petition for rescission: Family Court of the city or province where the adoptee resides. [Sec. 20 A.M. 02-6-02-SC, Rule on Domestic and Inter-Country Adoption]
EFFECTS OF ADOPTION (1) Adopters shall exercise parental authority. (2) All legal ties between biological parent(s) and adoptee shall be severed (except in cases where the biological parent is the spouse of the adopter); and the same shall be vested on the adopter(s); [Sec. 16] (3) Adoptee shall be considered the legitimate child of the adopter(s) for all intents and purposes; [Sec. 17] (4) Adopters shall have reciprocal rights of succession without distinction from legitimate filiation; [Sec. 18]
When to file: (1) Within 5 years after reaching age of majority (2) If he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency. [Sec. 21 A.M. 02-6-02SC, Rule on Domestic and Inter-Country Adoption] EFFECTS OF RESCISSION OF ADOPTION (1) Restoration of parental authority to biological parent if adoptee is a minor if know, or legal custody to the DSWD; (2) Reciprocal rights and obligations of adopter and adoptee are extinguished; (3) Cancellation of amended birth certificate and restore original; (4) Successional rights shall revert to its status prior to adoption, as of the date of final judgment of rescission. (5) Vested rights shall be respected [Sec. 20, RA 8552]
INSTANCES WHEN ADOPTION MAY BE RESCINDED; EFFECTS OF RESCISSION OF ADOPTION Rescission may only be at the petition of the adoptee. (1) Adoptee who is over 18 years of age (2) If the adoptee is a minor, with the assistance of the DSWD (3) If the adoptee is over 18 years of age but incapacitated, by his guardian or counsel. [Sec. 19]
C. INTER-COUNTRY ADOPTION RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: (1) Foreign nationals, and (2) Filipino citizens permanently residing abroad. [Sec. 3 (a)]
Grounds: Committed by the adopter (1) Repeated physical and verbal maltreatment despite having undergone counseling; (2) Attempt on the life of the adoptee; (3) Sexual assault or violence; (4) Abandonment or failure to comply with parental obligations.
WHEN ALLOWED Inter-country Adoption as the Last Resort; “Best Interest of the child” as objective The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that intercountry adoption is in the best interest of the child [Sec. 7, RA 8043]
Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. [Sec. 19]
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XIV. Writ Corpus
FUNCTIONS OF THE RTC (1) Filing of petition may be made with the Family Court having jurisdiction over the place where the child resides or may be found. [Sec. 28, AM 02-6-02 SC] (2) Court shall determine whether or not petition is sufficient in form and substance and a proper case for inter-country adoption. (3) Transmit the petition to the ICAB for appropriate action.
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of
Habeas
WRIT OF HABEAS CORPUS Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restrain is illegal 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. [Rule 102, Sec. 1]
“BEST INTEREST OF THE MINOR” STANDARD The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. [Sec. 14 A.M No. 03-04-04-sc Re: proposed rule on custody of minors and writ of habeas corpus in relation to custody of minors]
Can only be suspended in cases of rebellion or invasion and when public interest requires it [Art. III, Sec. 15]
The rule that there should be no contact between the adoptee and his/her biological parents shall not apply in exceptional cases where the child’s best interests are at stake [Sec. 39, IRR of RA 8043]
VITAL PURPOSES In general 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 relief from illegal confinement (2) To liberate those who may be imprisoned without sufficient cause (3) To deliver them from unlawful custody [Villavicencio v. Lukban (1919)]
In case physical transfer fails to occur, the ICAB shall take appropriate steps for the protection of the best interests of the child. [Sec. 44, IRR of RA 8043]
Concept of restraint Actual and effective and not merely nominal or moral restraint is required. [Zagala v. Illustre (1926)]
Placement may be terminated if it is not in the best interests of the child. [Sec. 48, IRR of RA 8043]
However, actual physical restraint is not always required; any restraint which will prejudice freedom of action is sufficient. [Moncupa v. Enrile (1986)]
Any doubt or vagueness in the provisions of theseRules shall be interpreted in consideration of the best interests of the child. [Sec. 61, IRR of RA 8043]
In the case of minors (1) Prosecuted for the purpose of determining the right of custody of a child.
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(2) Question of identity is relevant and material and must be convincingly established. [Tijing v. CA (2008)]
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action is sufficient. [Villavicencio v Lukban (1919)] (2) Violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts: a. Threat of killing their families if they tried to escape b. Failure of the military to protect them from abduction c. Failure of the military to conduct effective investigation [Secretary of Justice v. Manalo]
The underlying rationale is not the illegality of the restraint but the right of custody. [Tijing v. CA (2001)] Who may issue the writ (1) The SC,CA, and RTC have concurrent jurisdiction to issue WHC [Rule 102, Sec.2] (2) Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the WHC in relation to custody of minors
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, 106 SCRA 159 (1981)]
Temporary release may constitute restraint; Elements: (a) Where a person continued to be unlawfully denied one or more of his constitutional rights (b) Where there is present denial of due process (c) Where the restraint is not merely involuntary but appear to be unnecessary (d) Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary [Moncupa v. Enrile (1986)]
Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. 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]
General Rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot. Exceptions: (1) Doctrine of Constructive Restraint – Unless there are restraints attached to his release which precludes freedom of action in which case the Court can still inquire into the nature of his involuntary restraint
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 relieving from illegal restraint.
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint. Any restraint which will preclude freedom of
Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the 259
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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 (1922)]
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(5) Hearing by the court (upon return) [Rule 102, Sec 12] (6) Execution of the writ - Officer brings the person before the judge, and - Officer makes due return [Rule 102, Sec 8]
It is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court. [Mangila v. Judge Pangilinan (2013)]
A. CONTENTS OF THE PETITION Who may apply (1) The party for whose relief it is intended; or (2) By some person on his behalf [Rule 102, Sec 3] Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application [Velasco v. CA (1995)]
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. WHC reaches the body of the jurisdictional matters, but not the record. Writ of certiorari reaches the record but not the body [Galvez v. CA (1994)]
Verified petition must set forth: (1) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) The officer or name of the person by whom he is so imprisoned or retrained or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear. [Rule 102, Sec 3]
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] PROCEDURE (1) Application for the writ by petition [Rule 102, Sec 3] (2) Grant or disallowance of writ and issuance by court or judge [Rule 102, Secs 4-5] (3) Clerk of Court issues the writ under the seal of court (in case of emergency, by the judge himself) [Rule 102, Sec 5] (4) Service: - By whom: sheriff or other proper officer - How: leaving the original with the person to whom it is directed and preserving a copy on which to make return - To whom: officer in custody or any officer (when in custody of person other than an officer) [Rule 102, Sec 7]
B. CONTENTS OF THE RETURN Made by the person or officer in whose custody the prisoner is found: (1) Whether he has or has not the party in his custody or power, or under restraint (2) If he has the party in his custody or power, or under restraint, the authority and the true 260
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and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held (3) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge
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Peremptory writ – unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified [Lee Yick Hon v. Collector of Customs, (1921)]
D. WHEN APPLICABLE
NOT
PROPER
OR
(1) For asserting or vindicating the denial of right to bail. [Galvez v. CA (1994)] (2) Where the petitioner has the remedy of appeal or certiorari. [Galvez v. CA (1994)] (3) For correcting errors in the appreciation of facts or law [Sotto v. Director of Prisons (19662)] a. Exception: If error affects court’s jurisdiction making the judgment void [Herrera]
If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Rule 102, Sec 10] The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases, unless the return is made and signed by a sworn public officer in his official capacity. [Rule 102, Sec 11]
WHC is proper: Remedy for reviewing proceedings for deportation of aliens [De Bisschop v. Galang, (1963)]
When the return considered evidence, and when only a plea When the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint.
Where the court has no jurisdiction to impose the sentence [Banayo v. President of San Pablo, 2 Phil. 413 (1903)]
E. WHEN WRIT DISALLOWED OR DISCHARGED
If he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. [Rule 102, Sec 13]
(1) The person alleged to be restrained of his liberty is in custody of an officer or Under process issued by the court or judge or By virtue of a judgment or order of a court of record and said court had jurisdiction to issue the process, render the judgment or make the order; or (2) If jurisdiction appears after the writ is allowed despite any informality or defect in the process, judgment, or order; or (3) Person is charged with or convicted of an offense in the Philippines; or
C. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Preliminary citation – requires the respondent to appear and show cause why the peremptory writ should not be granted
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(4) Suffering from imprisonment under lawful judgment. [Rule 102, Sec 4] (5) 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 [Rule 102, Sec 14] (6) Even if the arrest of a person is illegal, due to supervening events may bar release: (a) Issuance of a judicial process [Sayo v. Chief of Police of Manila (1948)]
Specifically, it protects image, privacy, honor, information, self-determination and freedom of information of a person. [Philippine Supreme Court Bulletin Benchmark Online, November 2007]
Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law. [Malaloan v. CA (1994)] (b) The filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail [Velasco v. CA(1995)] (c) Filing of an information for the offense for which the accused is detained bars the availability of WHC [Velasco v. CA (1995)]
G. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances. [Vivares v. St. Theresa’s College (2014)] See Annex A for detailed distinction
Applicability Applies to petitions for custody of minors and writs of habeas corpus in relation thereto. Rules of Court shall apply suppletorily. [Sec. 1] Petition for Custody of Minors Who may file: Any person claiming right of custody. [Sec 2] Party against whom it may be filed shall be designated as the respondent.
F. DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA
Where to file: Filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. [Sec. 3]
Writ of Habeas Corpus – extends to all cases of illegal confinement or detention (deprivation of liberty), or where rightful custody is withheld from person entitled thereto.
Contents of petition: The verified petition shall allege the following: (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. [Sec 4]
Writ of Amparo – covers extralegal killings and enforced disappearances or threats thereof The writ of amparo, in its present form, is confined only to these two instances of “extralegal killings” and enforced disappearances. [Rev. Fr. Reyes v. CA (2009)] Writ of Habeas Data – in general is designed to safeguard individual freedom from abuse in the information age by means of an individual complaint presented in a constitutional court. 262
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Answer to the Petition Motion to Dismiss is not allowed except on ground of lack of jurisdiction over subject matter. [Sec. 6]
(3)
Respondent must file verified answer within 5 days after service of summons and copy of petition. [Sec. 7]
(4)
Case study – upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pretrial. [Sec. 8]
(5) (6)
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and of sufficient discernment, unless the parent chosen is unfit; The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment, unless grandparent chosen is unfit or disqualified; The eldest brother or sister over 21 years of age, unless unfit or disqualified; The actual custodian of the minor over 21 years of age, unless unfit or disqualified; Any other person or institution the court may deem suitable. [Sec. 13]
In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. [Sec. 14]
Pre-trial is mandatory. [Sec. 9] Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial. [Sec.10]
Interim Reliefs (1) Temporary visitation rights - court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. Unless the court finds said parent or parents unfit or disqualified.
If the petitioner fails to appear personally at the pre-trial, 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 of the petitioner. [Sec. 11] If the 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. [Sec. 9]
The temporary custodian shall give the court and non-custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days. [Sec. 15] (2) Hold Departure Order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending.
Provisional Order awarding custody After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: (1) Both parents jointly; (2) Either parent taking into account all relevant considerations, especially the choice of the minor over seven years of age
The Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission.
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The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance.
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or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship.
The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing. [Sec. 16]
The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. [Sec. 18]
(3) Protection Order (PO) - court may issue a PO requiring any person: (1) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place; (2) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded; (3) To refrain from acts or omission that create an unreasonable risk to minor; (4) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods; (5) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; (6) To comply with such other orders as are necessary for the protection of the minor. [Sec. 17]
Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties. [Sec. 19] WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS A verified petition for a writ of habeas corpus involving custody of minors is filed with the Family Court. The writ shall be enforceable within the judicial region the Family Court belongs. However, the petition may be filed with a regular court in the absence of the presiding judge of the Family Court provided that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.
Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.
Petition may also be filed with the appropriate regular courts in places where there are no Family Courts.
If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor,
The petition may be filed with the SC, CA, or with any of its members and shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court 264
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or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits.
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Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20]
Comparative Table on Habeas Corpus and Rule on Custody of Minors Habeas Corpus [Rule 102] Rule on Custody and Habeas Corpus for Minors [A.M. 03-04-04] Rights Involved
Right to liberty Rightful custody of the aggrieved party Actual violation of the aggrieved party’s right to liberty, or rightful custody [Sec. 1]
Petition for the rightful custody of a minor
(1) RTC or any judge thereof (2) CA or any member thereof in instances authorized by law (3) SC or any member thereof [Sec. 2] (4) Special jurisdiction given to first level courts in the absence of RTC judges in a province or city [Sec. Before which court or 35, BP 129] judicial authority filed (5) In aid of appellate jurisdiction of the Sandiganbayan [RA 8249 further expanding its jurisdiction]
A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.
Unlawful deprivation custody, or
of
rightful
A minor is being kept from a parent by the other parent (e.g. which parent shall have the care and custody of a minor, when such parent is in the midst of nullity or legal separation proceedings). [Herrera; Secs. 2 & 20] Party for whose relief it is intended or Any person claiming rightful custody by some person in his behalf [Sec. 1] – this covers: Party Authorized to (1) Unlawful deprivation of the File custody of a minor (2) Which parent shall have the care and custody of a minor [Herrera] Respondents May or may not be an officer Situations Applicable
Contents petition
of
However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. [Sec. 20] the Signed, verified either by the party for The verified petition shall allege the whose relief it is intended, or by some following: person in his behalf and shall set (1) The personal circumstances of forth: the petitioner and of the 265
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SPECIAL PROCEEDINGS (1) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (2) The officer or name of the person by whom he is so imprisoned or restrained or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without any legal authority, such fact shall appear. [Sec. 3]
REMEDIAL LAW respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (3) The material operative facts constituting deprivation of custody and (4) 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]
XV. Writ of Amparo (A.M. 07-9-12-SC)
virtue of the 1987 Constitution stating that the SC has the power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights…” (Art VIII Sec. 5).
WRIT OF AMPARO Literally means “to protect”
A. COVERAGE Available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.
Came originally from Mexico and evolved into many forms (1) Amparo libertad – for protection of personal freedom (2) Amparo contra leyes – for judicial review of the constitutionality of statutes (3) Amaparo casacion – judicial review of constitutionality and legality of judicial decisions (4) Amparo agrario – for protection of peasants’ rights
The writ shall cover: (1) Extralegal killings (killings committed without due process of law) and (2) Enforced disappearances [Sec. 1] Elements of enforced disappearance: (1) An arrest, detention or abduction of a person by a government official or
AM No 7-9-12-SC (Rules on the Writ of Amparo) was promulgated by the Supreme Court by 266
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organized groups or private individuals acting with the direct or indirect acquiescence of the government (2) The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law [Sec. of National Defense v. Manalo (2008)]
or photographing, by or on behalf of the moving party, of any designated documents, papers, books of 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...”
The writ applies only to the right to life, liberty and security of persons and not property.
(1) Aggrieved party; or (2) Qualified person or entity in the following order: a. Any member of the immediate family namely: the spouse, children and parents of the aggrieved party; b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or c. Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party.
D. WHO MAY FILE
“Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person.
B. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA See previous discussion in writ of habeas corpus. Likewise, see Annex A.
C. AMPARO VS SEARCH WARRANT
The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. [Sec. 2]
Secretary of Defense v. Manalo (2008) “The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.”
Ratio for preference (1) Necessary for the prevention of indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party (2) Untimely resort to the writ by a nonmember of the family may endanger the life of the aggrieved party
The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. “Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying
WHERE TO FILE (1) RTC where the threat, act or omission was committed or any of its element occurred; or (2) Sandiganbayan—unlike the writ of habeas corpus, because public officials and 267
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employees will be respondents in amparo petitions; or (3) Court of Appeals; or (4) Supreme Court; or (5) Any justice of such courts [Sec 3]
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May include a general prayer and equitable reliefs. Signed and verified [Sec. 5] Issuance of Writ Upon filing of petition, writ shall immediately issue if on its face it ought to issue.
May be filed on any day, including Saturdays, Sundays, and holidays; from morning until evening.
Date and time for summary hearing of the petition shall be set not later than 7 days from date of issuance. [Sec. 6]
The writ shall be enforceable anywhere in the Philippines. [Sec 3] No docket fees. Petitioner shall be exempted from payment of docket fees and other lawful fees when filing the petition. [Sec 4]
E. CONTENTS OF RETURN When to file return Respondent must file a verified written return within 72 hours after service of writ, together with supporting affidavits.
CONTENTS OF PETITION (1) The personal circumstances of the petitioner; (2) The name and personal circumstances of the respondent responsible for the threat, actor omission or if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (3) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (4) The investigation conducted, if any, specifying the names, the personal circumstances and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (5) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (6) The relief prayed for.
CONTENTS OF RETURN (1) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (2) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission; (3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and (4) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken: a. to verify the identity of the aggrieved party; b. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; 268
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c. to identify witnesses and obtain statements from them concerning the death or disappearance; d. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. to identify and apprehend the person or persons involved in the death or disappearance; and f. to bring the suspected offenders before a competent court.; and (5) The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case.
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omission was committed or any of its elements occurred. (3) If filed with the SC, returnable to the SC or any justice, or to the CA, SB or any of its justices, or the RTC where the threat, act or omission was committed or any of its elements occurred. [Sec. 3]
F. EFFECTS OF FAILURE TO FILE RETURN In case the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte. [Sec. 12]
G. OMNIBUS WAIVER RULE
No general denial allowed. [Sec. 9]
All defenses not pleaded deemed waived.
Prohibited Pleadings and Motions: The following pleadings and motions are prohibited: 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 l. Petition for certiorari, mandamus or prohibition against any interlocutory order. [Sec. 11]
All defenses shall be raised in the return, otherwise, they shall be deemed waived. [Sec. 10]
H. PROCEDURE FOR HEARING Summary 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. Hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. [Sec. 13] Judgment The court shall render judgment within ten (10) days from the time of petition is submitted for decision.
To whom returnable (1) If filed with RTC, returnable to RTC or any judge (2) If filed with Sandiganbayan, CA or any justice, returnable to such court or any justice or the RTC where the threat, act or 269
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Archiving and revival of cases If the case cannot proceed for valid cause, the court shall not dismiss the petition but shall archive it. If after the lapse of two (2) years from the notice of archiving, the petition shall be dismissed for failure to prosecute. [Sec. 20]
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writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition. [Sec. 23]
I. INSTITUTION OF SEPARATE ACTION
L. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
The Rule shall neither preclude the filing of separate criminal, civil or administrative actions [Sec. 21]
When: Upon filing of the petition or at any time before final judgment
But a claim for damages should instead be filed in a proper civil action.
Interim Reliefs available to the Petitioner (1) Temporary Protection Order. Issued upon motion or motu proprio
If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent
That the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers concerned. [Sec. 14(a)]
J. EFFECT OF FILING A CRIMINAL ACTION When a criminal action has been commenced, no separate petition for the writ shall be filed. Reliefs under the writ shall be available by motion in a criminal case.
Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte.
Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. [Sec. 22]
(2) Inspection Order. Issued only upon verified motion and after due hearing
K. 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.
Directed to any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.
When a criminal action and a separate civil action are filed subsequent to a petition for a
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More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure
The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons. [Sec. 14(b)]
(4) Witness Protection Order. Issued upon motion or motu proprio
Requires hearing, may be availed of both the petitioner and the respondent
Order may refer the witnesses to a) The Department of Justice for admission to the Witness Protection, Security and Benefit Program. b) Other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. [Sec. 14(d)]
If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the Supreme Court (3) Production Order. Issued only upon verified motion and after due hearing
Interim Reliefs available to the Respondent (1) Inspection Order (2) Production Order [Sec. 15]
Directed to 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.
Requisites: (1) Verified motion of the respondent (2) Due hearing (3) Affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.
M. QUANTUM OF PROOF APPLICATION FOR ISSUANCE WRIT OF AMPARO
Grounds for Opposition (1) National security (2) Privileged nature of the information
IN OF
The parties shall establish their claims by substantial evidence.
In which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. [Sec. 14(c)]
If respondent is a public official or employee Must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty.
Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents
Cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability
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means in order to achieve unlawful ends. [Gamboa v. Chan (2012)]
If respondent is a private individual or entity Must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. [Sec. 17]
Writ of Habeas Data was not enacted solely for the purpose of complementing the Writ of Amparo in cases of extralegal killings and enforced disappearances. It may be availed of in cases outside of extralegal killings and enforced disapperances. Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.” As such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. It can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. [Vivares v. St Theresa’s College G.R. No. 202666, September 29, 2014]
Sec. of Justice v. Manalo (supra) With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves. Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained.
XVI. Writ of Habeas Data (A.M. No. 08-1-16-SC)
B. AVAILABILITY OF WRIT Who may file: Any aggrieved party may file a petition for the writ of habeas data.
A. SCOPE OF THE WRIT The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1]
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]
It is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful
Where to file: (1) RTC (a) Where petitioner resides; or (b) Where respondent resides; or (c) Which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner.
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In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (6) Such other relevant reliefs as are just and equitable. [Sec. 6]
(2) SC, CA, SB (when action concerns public data files of government offices). [Sec. 4] Writ is enforceable anywhere in the Philippines. [Sec. 4] Indigent petitioner no need to pay docket fees No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. [Sec. 5]
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]
E. CONTENTS OF THE RETURN The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons.
C. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO See previous discussion in habeas corpus and Annex A.
Contents: (1) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. the currency and accuracy of the data or information held; and (3) Other allegations relevant to the resolution of the proceeding.
D. CONTENTS OF THE PETITION A verified written petition for a writ of habeas data should contain: (1) The personal circumstances of the petitioner and the respondent; (2) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (3) The actions and recourses taken by the petitioner to secure the data or information; (4) 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; (5) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.
A general denial of the allegations in the petition shall not be allowed. [Sec. 10]
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Prohibited Pleadings and Motions: The following pleadings and motions are prohibited: (1) Motion to dismiss; (2) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (3) Dilatory motion for postponement; (4) Motion for a bill of particulars; (5) Counterclaim or cross-claim; (6) Third-party complaint; (7) Reply; (8) Motion to declare respondent in default; (9) Intervention; (10) Memorandum; (11) Motion for reconsideration of interlocutory orders or interim relief orders; and (12) Petition for certiorari, mandamus or prohibition against any interlocutory order. [Sec. 13]
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H. 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 the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. [Sec. 22]
I. 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]
XVII. Change of Name
F. INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS
DISTINCTIONS BETWEEN THE RULES (103, 108, R.A. 9048) See Annex B.
A hearing in chambers may be conducted: (1) Where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or (2) When the data or information cannot be divulged to the public due to its nature or privileged character. [Sec. 12]
GROUNDS FOR CHANGE OF NAME [Republic v. Hernandez (1996)] Valid Grounds for Change of Name (1) The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) Change results as a legal consequence of legitimation (3) The change will avoid confusion. (4) A sincere desire to adopt a Filipino name to erase signs of former alienage [Ang Chay v. Republic, 1970] (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage [Uy v. Republic, 1965]
G. 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]
Laperal v. Republic (1962) 274
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Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103.
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as a result of using his true and official name. Rather than avoiding confusion, changing petitioner’s first name may only create grave complications in the civil registry and the public interest.
No Yao Siong v. Republic (1966) 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 law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.
Ong Huan Tin v. Republic (1967) An alien may petition for change of name but he must be domiciled in the Philippines. Oshito v. Republic (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.
People v. Cagandahan (2008) 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 development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed.
Go Chiung Beng v. Republic (1972) All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if said aliases are contained in the body of the petition. Secan Kok v. Republic (1973) 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.
Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court
Silverio v. Republic (2007) A person’s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer 275
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Procedure: (1) Petition for Change of Name (2) Court order fixing the date and place of hearing (3) Publication of the court order fixing the date and place of hearing, at least once a week for 3 consecutive weeks in a newspaper of general circulation. (4) Hearing on the petition (5) Judgment granting/denying the change of name. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same.
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(5) Judgments of annulments of marriage (6) Judgments declaring marriages void from the beginning (7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name [Rule 108, Sec. 2] Such changes have public interest implications and must only be made upon approval of the Court.
XVIII. Cancellation or Correction of Entries in the Civil Registry
Cancellation or correction of substantial errors is allowed provided proceeding is adversary. [Chiao Ben Lim v. Zosa (2004)]
Proceedings for cancellation or correction of entries in the Civil Registry may be: (1) Summary – when the correction sought to be made is a mere clerical error (now governed by RA 9048) (2) Adversarial – where the rectification affects civil status, citizenship or nationality of a party or any other substantial change.
Appropriate adversary proceeding One where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. [Elosida v. Local Civil Registrar of Quezon City (2002)]
Substantial Change – change that affects the civil status, citizenship, or nationality of a party.
Parties – a) Civil registrar and b) all persons who have or claim any interest which would be affected are made parties [Rule 108, Sec. 3]
A. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION IN RELATION TO R.A. 9048
Notice and publication – Reasonable notice to be given to the persons named in the petition, and publication once a week for 3 consecutive weeks [Rule 108, Sec. 4]
Rule 108: Substantial changes in entries in the civil registry
Opposition Period to file:15 days from notice of petition, or from last date of publication of notice [Rule 108, Sec. 5]
Entries: (1) Births (2) Marriage (3) Deaths (4) Legal separations 276
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May be filed by: (1) Civil registrar or (2) Any person having or claiming any interest under the entry whose cancellation or correction is sough.
requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia (1986)]
RA 9048, AS AMENDED BY RA 10172
A. PURPOSE OF THE RULE
XIX. Absentees
Clerical or Typographical Errors
In Re: Petition for Declaration of Absence of Roberto L. Reyes (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
General Rule: Entry in a civil register shall be changed or corrected with a judicial order. Exception: (1) Clerical or typographical errors and (2) Change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. [Sec. 1, RA 9048, as amended]
General Rule: No independent action for declaration of presumption of death [Nicolai v. Szatrow, 1948)] Exception: For purpose of contracting a second marriage [Article 41, Family Code]
B. WHO MAY FILE; WHEN TO FILE
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: (1) Is harmless and innocuous. (2) Is visible to the eyes or obvious to the understanding (Patent) (3) Can be corrected or changed only by reference to other existing record or records (4) Does not involve the change of nationality, age, status or sex of the petitioner. [Sec. 2(3), RA 9048, as amended]
Petition for Appointment of a Representative [PAR] to provisionally represent absentee when a person: (1) Disappears from his domicile, his whereabouts being unknown; and (2) Has not left an agent to administer his property or the power conferred upon the agent has expired. [Rule 107, Sec 1] Who may file PAR (1) Any interested party (2) Relative (3) Friend [Rule 107, Sec 1]
The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the 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
Petition for Declaration of Absence and Appointment of Trustee or Administrator [PDA] Filed after 2 years: (1) From the disappearance of and without any news from the absentee or (2) Since the receipt of the last news about him. 277
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XX. Appeals in Special Proceedings
Filed after 5 years: If the absentee left an administrator of his property. [Rule 107, Sec 2] Who may file PDA: (1) The spouse present (2) The heirs instituted in a will, who may present an authentic copy of the same (3) The relatives who would succeed by the law of intestacy (4) Those who have over the property of the absentee some right subordinated to the condition of his death. [Rule 107, Sec 2]
A. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN (1) If it allows or disallows a will; (2) If it wholly determines who are the lawful heirs or the distributive shares; (3) If it wholly or partially allows or disallows a claim against a decedent’s estate, or any claim presented on the decedent’s estate, or any claim presented on the estate’s behalf on offset to claim against it; (4) If it settles the account of an executor/administrator/trustee/guardian; (5) If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian
Who may be appointed: (1) Spouse present shall be preferred when there is no legal separation; (2) Any competent – if absentee left no spouse, or spouse is incompetent. Termination of administration: Trusteeship or administration of the property of the absentee shall cease upon order of the court if: (1) Absentee appears personally or through an agent; (2) Absentee’s death is proved and heirs appear; (3) Third person appears, showing that he acquired title over the property of the absentee. 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 found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. [Art 392m Civil Code] The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. [Art 42, Family Code]
Exception: Appointment of a administrator is not appealable
special
Remedy: Petition for certiorari under Rule 65, if there is grave abuse of discretion. (6) If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing [Rule 109, Sec 1] Exception: Orders MFR/MNT
granting/denying
a
While some of the items in Rule 109. Sec. 1 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Rule 41, Sec. 1. Rationale: To enable the rest of the case to proceed in the event that a separate and 278
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distinct issue is resolved by the court and held to be final. [Marinduque Mining and Industrial Corporation v. CA (2008)]
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C. MODES OF APPEAL Notice and record on appeal required. [Sec. 3, Rule 41]
B. WHEN TO APPEAL
Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the case should remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. However, a record on appeal is not necessary where no other matter remained to be heard and determined by the trial court after it issued the appealed order granting the petition for cancellation of birth record and change of surname in the civil registry. [Republic v. Nishina (2010)]
In a special proceeding, the period of appeal is 30 days. [Sec. 3, Rule 41] The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final. [Sec. 3, Rule 41] However, habeas corpus, amparo and habeas data cases have different periods of appeal. See Annex A.
D. RULE ON ADVANCE DISTRIBUTION Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the controversy/appeal be distributed, upon compliance with Rule 90. [Rule 109, Sec 2]
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Annexes Annex A (Writ of Habeas Corpus, Amparo, Data)
Writ Matrix (Comparison of the Writs) WHC – Writ of Habeas Corpus WD – Writ of Habeas Data RWD – Rules on Habeas Data CA - Court of Appeals RTC – Regional Trial Court
Nature, function
scope,
WA – Writ of Amparo RWA - Rules on the Writ of Amparo SC – Supreme Court SB – Sandiganbayan CoC – Clerk of Court
Habeas Corpus 1. All cases of illegal confinement and detention which any person is deprived of his liberty 2. Deprived of rightful custody of any person is withheld from the person entitled [Sec. 1] Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint.
Limitations
Who may file
May be suspended in cases of invasion or rebellion when public safety requires it [Art. III Sec. 15, 1987 Const.] By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf [Sec. 3]
Amparo Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity It covers extralegal killings and enforced disappearances or threats thereof. [Sec. 1]
Shall not diminish, increase or modify substantive rights [Sec. 23] Petition filed by the aggrieved party or by any qualified person or entity in the following order: (1) Any member of the immediate family (2) Any ascendant, descendant or collateral relative of the aggrieved
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Habeas Data Involves the right to privacy in life, liberty or security violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1] Shall not diminish, increase or modify substantive rights [Sec. 23] Any aggrieved party may file a petition for the WHD However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): (1) Any member of
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Amparo within the 4th civil degree of consanguinity or affinity (3) Any concerned citizen, organization, association or institution Filing by the aggrieved suspends the right of all others [Sec. 2]
Where filed
Where enforceable
Where returnable
REMEDIAL LAW Habeas Data the immediate family of the aggrieved (2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity [Sec. 2]
Granted by: (1) SC or any member thereof, on any day and at any time (2) CA or any member thereof in instances authorized by law (3) RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district (Sec. 2) (4) MTC or first level courts in the absence of RTC judges in a judicial region [Sec. 35 BP 129]
Filed on any day and at any time: (1) SB, CA, SC, or any justice of such courts (2) RTC of place where the threat, act, or omission was committed or any element occurred [Sec. 3]
Petition may be filed with RTC where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of petitioner
If SC or CA issued, anywhere in the Philippines
Writ shall be enforceable anywhere in the Philippines [Sec. 4]
If public data files of government offices, petition shall be filed with the SC, CA, or SB [Sec. 3] Writ shall be enforceable anywhere in the Philippines [Sec. 3]
If the one that granted the writ:
If issued by: (1) The SC or any of
If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region [Sec 21, BP 129 which modified the term judicial district in Sec 2, Rule 102 into judicial region] where the judge sits If the one that granted the writ: 281
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SPECIAL PROCEEDINGS Habeas Corpus (1) Is the SC or CA, or a member thereof, returnable before such court or any member thereof or an RTC (2) An RTC, or a judge thereof, returnable before himself [Sec. 2]
Docket Fees
Upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires (Sec. 19)
Amparo (1) Is the SC or any of its justices, returnable before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred (2) The SB or CA or any of their justices, returnable before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred (3) The RTC or any judge thereof, returnable before such court or judge [Sec. 3] Petitioner shall be exempted from the payment of the docket and other lawful fees Court, justice or judge shall docket the petition and act upon it immediately (Sec 4)
Essential
Signed and verified either
Signed and verified and
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REMEDIAL LAW Habeas Data its justices, before such Court or any justice thereof, or CA or 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 (2) The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC) (3) RTC, returnable before such court or judge [Sec. 4]
None for petitioner
indigent
Petition shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from filing (Sec. 5) Verified and written
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allegations/ Contents of petition
SPECIAL PROCEEDINGS Habeas Corpus by the party for whose relief it is intended or by some person on his behalf, setting forth: (1) The person in whose behalf whose the application is made is imprisoned or restrained of his liberty (2) Name of the person detaining another or assumed appellation (3) Place where he is imprisoned or restrained of his liberty (4) Cause of detention [Sec. 3]
Amparo shall allege: (1) The personal circumstances of the petitioner (2) Name or appellation and circumstances of the respondent (3) The right to life, liberty, and security violated or threatened with violation, (4) The investigation conducted, if any, plus circumstances of each (5) The actions and recourses taken by the petitioner (6) Relief prayed for May include a general prayer for other just and equitable reliefs [Sec. 5]
When proper
Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then: the clerk of court (CoC) shall issue the writ under the seal of the court or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it Also proper to be issued when the court or judge has examined into the cause of 283
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 CoC shall issue the writ under the seal of the court or In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person
REMEDIAL LAW Habeas Data petition shall contain: (1) Personal circumstances of petitioner and respondent (2) Manner the right to privacy is violated or threatened and its effects (3) Actions and recourses taken by the petitioner to secure the data or information (4) The location of the files, registers, or databases, the government office, and the person in charge or control (5) The reliefs prayed for Such other relevant reliefs as are just and equitable [Sec. 6] Upon 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. CoC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance or In case of urgent necessity, the justice or judge may issue the writ under his or
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Service
SPECIAL PROCEEDINGS Habeas Corpus restraint of the prisoner, and is satisfied that he is unlawfully imprisoned [Sec. 5] Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service
Respondent
How executed and returned
If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody [Sec. 7] May or may not be an officer [Sec. 6]
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
Amparo to serve it. [Sec. 6]
The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 8]
Respondent is a public official or employee or private individual or entity [Sec. 1]
Respondent files the return [Sec. 9]
On the day specified in the writ, unless person directed to be produced is sick or infirm, 284
REMEDIAL LAW Habeas Data her own hand, and may deputize any officer or person to serve it [Sec. 7] The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 9]
A public official or employee or a private individual or entity engaged in gathering, collecting or storing data [Sec. 1] Respondent files the return [Sec. 10]
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SPECIAL PROCEEDINGS Habeas Corpus and cannot, without danger, be brought therein
When to file return
Contents of return
Officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof [Sec. 8] On the day specified on the writ [Sec. 8] When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: (1) Truth of custody/power over the aggrieved party (2) If he has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held (3) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity (4) If he has had the party in his custody or power, and has transferred
Amparo
Within 5 working days after service of the writ [Sec. 9] Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, contain: (1) Lawful defenses (2) The steps or actions taken to determine the fate or whereabouts of the aggrieved party (3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party (4) If the respondent is a public official or employee, the return shall further state acts: (a) To verify identity of aggrieved party (b) To recover and preserve
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Same with WA [Sec. 10] (1) Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media etc. (2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (a) A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection (b) The steps or actions taken by the
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SPECIAL PROCEEDINGS Habeas Corpus such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Sec. 10]
Formalities of return
Penalties For refusing to issue or serve For faulty return
Return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced, unless the return is made and signed by a sworn public officer in his official capacity [Sec. 11] CoC who refuses to issue the writ after allowance and demand, or A person to whom a writ is directed, who: (1) neglects/refuses to obey or make return of the same according to the command thereof, (2) or makes false return, (3) or upon demand made by or on behalf of the prisoner, refuses to deliver to the person
Amparo evidence (c) To identify and collect witness statements (d) To determine cause, manner, location, and time of death or disappearance (e) To identify and apprehend persons involved (f) Bring suspected offenders before a competent court [Sec.9] …the respondent shall file a verified written return together with supporting affidavits… [Sec. 9]
REMEDIAL LAW Habeas Data respondent to ensure the security and confidentialit y of the data or information (c) The currency and accuracy of the data or information held Other allegations relevant to the resolution of the proceeding [Sec.10]
Respondent shall file a verified written return together with supporting affidavits… [Sec. 10]
CoC who refuses to CoC who refuses to issue the writ after its issue the writ after allowance, or its allowance, or A deputized person A deputized person who refuses to serve who refuses to serve the same, the same,
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shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions [Sec. 7]
shall be punished by the court, justice, or judge for contempt without prejudice to other disciplinary actions (RWD Sec. 8)
The court, justice, or judge may order the
The court, justice, or judge may punish with
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SPECIAL PROCEEDINGS Habeas Corpus demanding, within 6 hours a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be punished for contempt [Sec. 16]
Is period of return extendable? Is a general denial allowed? Defenses not pleaded
Amparo respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resist a lawful process or order of the court to be punished for contempt Contempt or may be imprisoned or imposed a fine [Sec. 16] No, not even on highly meritorious grounds. Not allowed [Sec. 9] If not raised in return deemed waived [Sec 10] Court or justice shall proceed to hear the petition ex parte [Sec. 12]
Effect of failure to file return
Nature of Hearing
Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from 287
REMEDIAL LAW Habeas Data imprisonment or fine a respondent who commits contempt by: (1) Making a false return or (2) Refusing to make a return or (3) Any person who otherwise disobeys or resists a lawful process or order of the court [Sec. 11]
Yes, by the court, for justifiable reasons [Sec. 10] Not allowed [Sec. 10]
Court, judge, or justice 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. With possibility of preliminary conference similar to the WA [Sec. 14] Hearing on chambers may be conducted where respondent invokes the defense of national security or
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SPECIAL PROCEEDINGS Habeas Corpus
Date and time of hearing
As specified in the writ [Sec. 8]
Prohibited pleadings
In custody of minors: a motion to dismiss, except on the ground of lack of jurisdiction [Sec. 6, Rule on Custody of Minors and WHC]
Burden Proof/Standard Diligence
of of
Clear and convincing evidence [Dizon v. Eduardo (1988)] Note: no provision in Rule but in Dizon v. Eduardo, the SC used “clear and convincing evidence”, a stricter standard than “preponderance of evidence” but less stricter that “proof beyond reasonable doubt.”
Amparo day to day until completed same priority as petitions for WHC [Sec. 13] As specified in the writ, not later than 7 days from the issuance of the writ [Sec. 6] Motion to dismiss, Motion for extension of time to file opposition, affidavit, position paper and other pleadings, Dilatory motion for postponement, Motion for bill of particulars, Counterclaims or crossclaims, Third-party complaint, Reply, Motion to declare respondent in default, Intervention, Memorandum, Motion for reconsideration of interlocutory orders or interim relief orders, petition for certiorari, mandamus, or prohibition [Sec.11] Establish claims by substantial evidence if respondent is a private individual or entity, ordinary diligence if public official or employee, extraordinary diligence [Sec. 17]
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Substantial evidence required to prove the allegations in the petition [Sec. 16]
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Presumption Official duty
SPECIAL PROCEEDINGS
of
Habeas Corpus Yes. Consonant with Sec. 13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint
Judgment
Appeal
Consolidation actions
Within 48 hours from notice of the judgment of final order appealed [Sec. 39, BP 129] of
Effect of filing criminal action
Amparo Public official or employee cannot invoke the presumption that official duty has been regularly performed [Sec. 17] The court shall render judgment within 10 days from the time the petition is submitted for decision [Sec. 18] 5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19] Consolidated with a criminal action filed subsequent to the petition [Sec. 23] No more separate petition shall be filed. Reliefs available by motion in the criminal case [Sec. 22]
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Within 10 days from the time the petition is submitted for decision [Sec. 16]
5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19] Consolidated with a criminal action filed subsequent to the petition [Sec. 21] Same as WA [Sec. 21]
Annex B Differences under the applicable rules (Rule 103, Rule 108, R.A. 9048) Rule 103 Rule 108 RA 9048 Applicability Substantial Changes in name Substantial changes (1) Change of First Names or in entries in the civil Nicknames registry (other than (2) Change brought about name) by clerical or typographical errors (includes day and month in the date of birth or sex), except nationality, age, or status Nature Judicial Judicial Administrative Who May (1) The person desiring to Natural person having A natural person having File change his name direct and personal direct and personal interest (2) Some other person on his interest in the in the change of first name or behalf correction of error in nickname in the civil register. an entry in the civil 289
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SPECIAL PROCEEDINGS Rule 103
Rule 108
REMEDIAL LAW RA 9048
register
Where Filed
RTC of the province in which RTC of the province The local civil registry office the person desiring to change where the civil of the city or municipality his name resides. registry is located where the record being sought to be corrected/changed is kept. Exceptions: (1) If the petitioner has already migrated to another place in the country, the petition shall be filed with local civil registrar of the place where the interested party is presently residing or domiciled (2) If the petitioner is a Filipino citizen presently residing or domiciled in a foreign country, the petition shall be filed in the nearest Philippine Consulate.
Standing of Not a party to the proceeding the LCR Notice requirement
No mention of notice to be sent
Made a party to the proceeding as a respondent The court shall cause reasonable notice to be given to persons named in the petition
Contents of Title: In Re: Petition for Change Petition of Name of X, also known as Y and Z, to ABC. X, Petitioner.
Facts necessary to establish the merits of the petition. A showing that the petitioner is competent to testify to the matters stated.
Names or Aliases of the Applicant (must appear in the caption of the petition) Omission is fatal to the petition
Particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made.
To allow a reader of the published petition to notice the 290
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SPECIAL PROCEEDINGS Rule 103
Rule 108
REMEDIAL LAW RA 9048
said aliases Petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing. Cause for which the change of the petitioner's name is sought Petitioner must show a proper or compelling reason for the change of name + the fact that he will be prejudiced by the use of his official name.
Form Petition
Name asked for of The petition shall be signed Verified petition and verified.
Procedure (1) Filing of petition for (1) Filing of petition for change of name. (2) Court shall Changing of (2) Court shall promulgate an promulgate an Name order fixing a date and order fixing the place for hearing the time and place for petition. The date set for hearing the the hearing shall NOT be: petition and cause reasonable notice Within 30 days prior to to be given to the an election AND persons named in Within 4 months after the petition. the last publication of the notice. Civil registrar and (3) Court shall direct a copy of all persons who the order to be published have or claim any before the hearing interest which At least once a week for would be affected 3 successive weeks thereby shall be In some newspaper of made parties to general circulation the proceeding published in the 291
(1) In the form of an affidavit (2) Verified (3) Subscribed and sworn to before any person authorized by law to administer oaths. (1) Filing of petition and its supporting papers in 3 copies to be distributed to: The concerned city or municipal civil registrar or the consul general The Office of the Civil Registrar General The petitioner (2) The City or Municipal Registrar or the Consul General shall post the petition in a conspicuous place for ten 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance.
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SPECIAL PROCEEDINGS Rule 103
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Rule 108 RA 9048 province. (3) Court shall direct (3) The petition shall be a copy of the published at least once a (a) Hearing shall be order to be week for 2 consecutive conducted. published before weeks in a newspaper of the hearing general circulation. The SolGen or the (4) The City or Municipal proper provincial or city At least once a Registrar or the Consul fiscal shall appear on week for 3 General shall render a behalf of the successive weeks decision not later than 5 Government of the working days after the Republic. In some completion of the posting (b) Judgment granting or newspaper of and/ or publication denying the change of general requirement. He shall name. circulation transmit a copy of his published in the decision together with (c) Copy of judgments province. the records of the shall be furnished the (4) File opposition proceedings to the Office civil registrar of the Within 15 days of the Civil Registrar municipality or city from notice of the General within 5 working where the court issuing petition or from days from the date of the the same is situated, the last date of decision. who shall forthwith publication enter the same in the (5) Hearing shall be Where the petition is civil register. conducted. denied by the city or Court may municipal civil registrar expedite the or the consul general, the proceedings and petitioner may either also grant appeal the decision to preliminary the civil registrar general injunction for or file the appropriate preservation of petition with the proper rights of the court. parties (5) The Civil Registrar (6) Judgment General shall, within 10 granting or working days from denying the receipt of the decision change of name. granting a petition, (7) Copy of exercise the power to judgments shall impugn such decision by be furnished the way of an objection. civil registrar concerned who Grounds for objection shall annotate the (a) The error is not same in the clerical or 292
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SPECIAL PROCEEDINGS Rule 103
Rule 108 records
REMEDIAL LAW RA 9048 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 (c) The basis used in changing the first name or nickname of a person does not fall under one of the valid grounds. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period, such decision shall become final and executory. (6) The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. (7) Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. (8) Appeal. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court.
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Opposition
SPECIAL PROCEEDINGS Rule 103 Any interested person
Grounds for Republic v. Hernandez (1996) Change of Valid Grounds for Change of Name Name (1) The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) Change results as a legal consequence of legitimation (3) The change will avoid confusion. (4) A sincere desire to adopt a Filipino name to erase signs of former alienage [Ang Chay v. Republic, 1970] (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage [Uy v. Republic, 1965]
Rule 108 Civil registrar and any person having or claiming interest under the entry whose cancellation or correction is sought Entries subject to cancellation or correction: (1) Birth (2) Marriage (3) Death (4) Legal separation (5) Judgment of annulment (6) Judgment declaring marriage null and void (7) Legitimation (8) Adoption (9) Acknowledgment of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of minor (15) Changes of name
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REMEDIAL LAW RA 9048 N/A Note: The Civil Registrar General is given the power to object to the decision of the Local Civil Registrar. Sec. 4: Grounds for Change of First Name or Nickname (1) The first name or nickname is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community. (3) The change will avoid confusion.
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CRIMINAL PROCEDURE
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CRIMINAL PROCEDURE
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CRIMINAL PROCEDURE
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I. GENERAL MATTERS
crime to be prosecuted and the court before which it must be tried. [Buaya v. Polo (1989)]
CRIMINAL JURISDICTION
It cannot be fixed by the will of the parties, the court or the accused, or by mere administrative policy of any trial court [Riano (2011)].
The authority to hear and try a particular offense and impose the punishment for it [People v. Mariano (1976)]
STATUTE APPLICABLE
A. JURISDICTION OVER SUBJECT MATTER AND JURISDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED Jurisdiction over subject matter
Jurisdiction over person of the accused
Refers to the authority of the court to hear and determine a particular criminal case
Refers to the authority of the court over the person charged
Conferred by law; can never be acquired solely by consent of the accused
May be acquired by consent of the accused or by waiver of objections
Right to object is never waived; the absence of jurisdiction over the subject matter may be raised at any stage of the proceeding
Right to object may be waived; failure of the accused to object in time would constitute waiver
A.1. JURISDICTION MATTER
OVER
Jurisdiction of a court to try a criminal action is determined by the law in force at the time of the institution of the action, and not the law in force at the time of the commission of the crime [People v. Lagon (1990)].
IMPOSABLE PENALTY In determining whether or not the court has jurisdiction over an offense, we consider the penalty which may be imposed upon the accused and not the actual penalty imposed after the trial [People v. Purisima (1976)]
PRINCIPLE OF JURISDICTION
ADHERENCE
OF
General rule: Under the principle of adherence of jurisdiction or continuing jurisdiction, once a court acquires jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final determination of the case. It is not affected by: (1) A subsequent valid amendment of the information [People v. Chupeco (1964)]; or (2) A new law vesting jurisdiction over such proceedings in another tribunal tribunal [Palana v. People (2007)].
SUBJECT
This refers to the right to act or the power and authority to hear and determine a cause. [Gomez v. Montalban (2008)]
Exception: The exception is where the succeeding statute expressly provides, or is construed to the effect that it is intended to operate to actions pending before its enactment [Palana v. People (2007)].
It is determined by the allegations in the complaint or information. The averments in the complaint or information characterize the
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A.2. JURISDICTION OVER THE PERSON OF THE ACCUSED
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Exception: In the cases of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court such as when the accused files a motion to quash a complaint on the ground of lack of jurisdiction over the person of the accused, or a motion to quash the warrant of arrest because it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in the motion to quash a warrant of arrest [Miranda v. Tuliao (2006)].
This is acquired either by: (a) Arrest of the accused; or (b) Voluntary appearance or submission of the accused to the jurisdiction of the court [Antiporda v. Garchitorena (1999), citing Arula v. Espino (1969)]. Voluntary appearance of the accused is accomplished by: (1) By filing pleadings seeking affirmative relief, except that in case of special appearance to challenge the jurisdiction of the court over the person, it is not voluntary submission [Garcia v. Sandiganbayan (2009)]; (2) By giving bail.
B. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION Subject matter jurisdiction, that is, whether or not the court has jurisdiction over the offense by virtue of the imposable penalty and its nature; Jurisdiction over the person of the accused; Territorial jurisdiction, which refers to venue or the place where the case is to be tried.
General rule: Seeking affirmative relief is deemed to be a submission to the jurisdiction of court.
C. JURISDICTION OF CRIMINAL COURTS C.1. REGULAR (CIVIL) COURTS MTC/MeTC/MCTC
RTC
Sandiganbayan
(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction [Section 32(1), BP 129]; (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof [Section 32(2), BP 129];
(1) Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body [Section 20, BP 129]; (2) Exclusive appellate jurisdiction over all cases decided by the MTC within its territorial jurisdiction [Section 22, BP 129]; (3) Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years, or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344]; (4) Cases against minors cognizable under the
(1) Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249, violations of RA 3019, RA 1379, and Chapter II, Section 2, Title VII, Book II, RPC;
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The officials enumerated are: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 [RA 6758]; (b) Members of Congress and officials thereof
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(3) Exclusive original jurisdiction over offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof [Section 32(2), BP 129; RA 7691] (this rule disregarding the amount of fine and other accessory penalties in determining jurisdiction does not apply when the offense is punishable by fine only); For Nos. 1-3, cases falling within the exclusive jurisdiction of the RTC and Sandiganbayan are not included. (4) Cases classified under the Revised Rules on Summary Procedure [SC Resolution, October 15, 1991]; (a) Violations of traffic laws, rules, or regulations; (b) Violations of rental law; (c) 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, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; (d) Offenses involving damage to property through criminal negligence (imposable fine does not exceed P10,000); (5) Violations of BP 22 [AM 0011-01-SC (2003)]; (6) Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Section 35, BP 129].
CRIMINAL PROCEDURE
(5) (6)
(7) (8)
Dangerous Drugs Act, as amended [RA 8369 (Family Courts Act of 1997)]; Violations of RA 7610 (Child Abuse Act); Cases of domestic violence against women and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties [RA 8369 (Family Courts Act of 1997)]; Violations of intellectual property rights [AM 03-0303-SC (2003); RA 8293]; Money Laundering Cases (RA 9160), except those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.
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classified as “Grade 27” and up under the Compensation and Position Classification Act of 1989; (c) Members of the judiciary without prejudice to the provisions of the Constitution; (d) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; (e) All other national and local officials classified as “Grade 27” (2) Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office. The following must concur: (a) Accused is any one of the public officials enumerated in subsection (a) of Sec. 4 of RA 8249, Grade 27 or higher (b) Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes (c) The offender commits such other offense or felony in relation to his office (3) Cases filed in pursuant to and in connection with EO 1, 2, 14, 14-A (1986).
C.2. MILITARY COURTS General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, regardless of who the co-accused or victims are. Exception: When the offense is service-oriented, it will be tried by the court martial, provided that the President may, in the interest of justice, order or direct, at any time before arraignment, that any such crimes or offenses be tried by the proper civil courts.
D. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION General rule: Courts will not issue injunction. Exceptions: (1) When necessary in the protection of the constitutional rights of the accused; (2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; (3) Where there is a prejudicial question which is sub judice; (4) Where acts of the officer are without or in excess of authority; (5) When the prosecution is under an invalid law or statute; (6) When double jeopardy is apparent; (7) Where the charges are manifestly false; (8) Where there is no prima facie case and a motion to quash has been denied.
II. PROSECUTION OF OFFENSES A. CRIMINAL INSTITUTED
ACTIONS;
HOW
A.1 IN GENERAL The institution of a criminal action generally depends upon whether the offense is one which requires a preliminary investigation or not. A criminal action is commenced by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation.
A.2. OFFENSES REQUIRING PRELIMINARY INVESTIGATION Offenses which require preliminary investigation are those where the penalty prescribed by law is at least 4 years, 2 months and 1 day [Sec. 1, Rule 112]. The criminal action is instituted by filing the complaint with the appropriate officer for preliminary investigation [Sec. 1(a), Rule 110].
A.3. OTHER OFFENSES For all other offenses, or in offenses cognizable by inferior courts (MTCs or MCTCs), the complaint or information is filed directly with said courts or the complaint is filed with the fiscal [Sec. 1(b), Rule 110].
A.4. IN METROPOLITAN MANILA AND OTHER CITIES In Metropolitan Manila and other chartered cities, the complaint shall be filed with the office of the public prosecutor unless otherwise provided in their charters [Section 1(b), Rule 110].
A.5. EFFECT OF INSTITUTION PRESCRIPTIVE PERIOD
ON
(6) Defamation which consists of imputation of any of the foregoing offenses.
The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws [Section 1, Rule 110].
B.2. WHO MAY FILE COMPLAINT Persons authorized to file a complaint: (1) The offended party (2) Any peace officer (3) Other public officer charged with the enforcement of the law violated
As per People v. Pangilinan (2012), “there is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription.”
Persons authorized to file an information: (1) City or provincial prosecutor and their assistants; and (2) Duly appointed special prosecutors
SUSPENSION OF PRESCRIPTIVE PERIODS IN CASES FALLING UNDER THE AUTHORITY OF THE LUPON
For Private Crimes (1) Adultery and Concubinage shall not be prosecuted except upon complaint of the offended spouse.Both guilty parties should be included if both are alive [Section 5, Rule 110].
While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon filing of the complaint with the Punong Barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary. Such interruption however shall not exceed sixty (60) days from the filing of the complaint with the punong barangay [Sec. 410[c], The Local Government Code of 1991].
However, prosecution will not prosper if the offended party consented to the offense. (2) Seduction, abduction and acts of lasciviousness are prosecuted exclusively and successively by the following persons in this order: (a) the offended party (b) her parents, grandparents, or guardian, in that order if the offended party is incompetent or incapable of doing so (c) by the State when the offended party dies or becomes incapable before she could file the complaint and she has no known parents, grandparents or guardian.
B. WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFICIO B.1. CASES THAT CANNOT PROSECUTED DE OFICIO
BE
Private crimes which may only be prosecuted by a complaint filed by the private offended party [Sec. 5, Rule 110]: (1) Adultery (2) Concubinage (3) Seduction (4) Abduction (5) Acts of lasciviousness
General rule: If the offended party is a minor, he or she has the right to initiate the prosecution of such offenses independently of his/her parents, grandparents, or guardians. 300
if the latter is a minor [US v. Luna (1902)]; (b) If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender.
Exceptions: He may not do so when he is: (a) Incompetent, or (b) Incapable of doing so (3) Oral defamation complaints can only be brought upon instance and upon complaint of the offended party.
General rule: Pardon must be made before the filing of the criminal complaint in court.
B.3. EVENTS SUBSEQUENT TO FILING
Exception: In rape, where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence.
B.3.A. DEATH OF OFFENDED PARTY Death after filing the complaint would not deprive the court of the jurisdiction.
If there is more than one accused, the pardon must be extended to all offenders.
The State shall initiate the action on behalf of the offended party in case of his death/incapacity and he has no known parents/grandparents/guardians.
Pardon or desistance extinguishes civil liability. Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations.
In adultery/concubinage, death does not extinguish the criminal liability of accused.
B.3.B. DESISTANCE PARTY
BY
OFFENDED
Pardon
Desistance does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity.
B.3.C. PARDON BY OFFENDED PARTY (1) In rape, seduction, abduction and acts of lasciviousness of a minor, the pardon will be effective if given by both parents and the offended party; (2) In seduction, abduction and acts of lasciviousness, express pardon by the offended party, parents, grandparents or guardian will prevent prosecution [Section 5, Rule 110]: (a) The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even
Consent
Refers to past acts
Refers to future acts
In order to absolve the accused from liability, it must be extended to both offenders
In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse
Given after the commission of the crime
Given before the commission of the crime
SUBSEQUENT MARRIAGE 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 abovementioned crimes. (RPC, Art. 344) 301
(10) There is clearly no prima facie case against the accused and MTQ on that ground has been denied (Samson v. Guingona (2000)); (11) To prevent threatened and unlawful arrest of petitioners (Brocka v. Enrile (1990))
Except: (1) In adultery and concubinage (2) Marriage was invalid or contracted in bad faith to escape criminal liability [People v. Santiago (1927)] (3) In “private libel”, or the libelous imputation to the complainant of the commission of the crimes of concubinage, adultery, seduction, abduction, or acts of lasciviousness, and in slander by deed [People v. Orzame (39 O.G. 1168)] (4) 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)]
C. CRIMINAL ENJOINED
ACTIONS;
D. 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 [Section 5, Rule 110]. Exceptions: The 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. (1) In case of heavy work schedule of the public prosecutor or (2) In the event of lack of public prosecutors,
WHEN
However, the criminal action is still prosecuted under the direction and control of the public prosecutor [Riano (2011)].
General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction [Domingo v. Sandiganbayan (1986)].
Only the Solicitor General may bring or defend actions in behalf of the Republic of the Philippines, or represent the People of the Philippines or State in criminal proceedings before the Supreme Court and the Court of Appeals, except: (1) When there is denial of due process of law to the prosecution and the State or its agents refuse to act on the case to the prejudice of the State and the private offended party, and (2) When the private offended party questions the civil aspect of a decision of a lower court.
Exceptions: (1) To afford protection to the constitutional rights of the accused; (2) Necessary for the orderly administration of justice or to avoid multiplicity of actions; (3) There is a prejudicial question which is sub judice; (4) The acts of the officer are without or in excess of authority; (5) The prosecution is under an invalid law/ordinance/regulation; (6) When double jeopardy is clearly apparent; (7) The court has no jurisdiction over the offense; (8) A case of persecution rather than prosecution; (9) The charges are manifestly false and motivated by the lust for vengeance;
D.1. EXTENT OF THE PROSECUTOR’S CONTROL D.1.A. PRIOR TO FILING OF THE CASE These matters are within the control and supervision of the prosecutor: 302
(1) (2) (3) (4)
What case to file; Whom to prosecute; Manner of prosecution; Right to withdraw information before arraignment even without notice and hearing.
E. SUFFICIENCY OF COMPLAINT OR INFORMATION A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated [Section 3, Rule 110].
D.1.B. AFTER FILING OF THE CASE It is the prosecutor’s duty to proceed with the presentation of his evidence.
An information is an accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court [Sec. 4, Rule 110; People v. Cinco (2009)].
The prosecutor has no power to dismiss the action without the court’s consent.
D.1.C. LIMITATIONS OF CONTROL BY THE COURT (1) THE PROSECUTION IS ENTITLED TO NOTICE OF HEARING; (2) The court must await for a petition for review (maximum of 60 days); (3) The prosecution’s stand to maintain prosecution should be respected by the court; (4) The court must make its own independent assessment of evidence in granting or dismissing motion to dismiss; otherwise, the judgment is void.
D.1.D. EFFECT OF LACK INTERVENTION OF FISCAL
OF
Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People v. Beriales (1976)].
Complaint
Information
Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated.
Subscribed by the fiscal. (Indispensible requirement. Lack of authority of the officer signing it cannot be cured by silence, acquiescence or even express consent.)
May be filed either in court or in the prosecutor’s office.
Filed with the court.
Must be “sworn” hence, under oath.
Requires no oath. The fiscal filing the information is acting under the oath of his office.
Usually refers to felonies which cannot be prosecuted de officio.
Usually refers public crimes.
to
TEST OF SUFFICIENCY (1) A complaint or information is sufficient if it states: (2) The name of the accused; (3) The designation of the offense given by the statute;
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E.2 DESIGNATION OF OFFENSE
(4) The acts or omissions complained of as constituting the offense; (5) The name of the offended party; (6) The approximate date of the commission of the offense; and (7) The place where the offense was committed [Section 6, Rule 110].
The complaint or information shall: (1) State the designation of the offense given by the statute; (2) Aver the acts and omissions constituting the offense; and (3) Specify the qualifying and aggravating circumstances.
The test for sufficiency of the complaint or information is 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 (2009)].
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]. This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him.
An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial [Frias v. People (2007)].
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 (2009)].
Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved 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 (2009)].
E.3 CAUSE OF THE ACCUSATION The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated: (1) In ordinary and concise language; and (2) Not necessarily in the language used in the statute; but (3) 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 and for the court to pronounce judgment [Section 9, Rule 110].
E.1 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].
Qualifying and aggravating circumstances must be alleged. Otherwise, they are not to be considered even if proven during the trial. The failure to allege such cannot be cured by an 304
amendment of his information after the accused entered his plea. [People v. Antonio (2002)]
support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven.
Although aggravating circumstances cannot be appreciated for the purpose of fixing a heavier penalty, they should, however, be considered as bases for the award of exemplary damages [People v. Evina (2003)].
E.4 PLACE OF COMMISSION OF THE OFFENSE
WHERE THE EXCEPTIONS
LAW
It 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, unless 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].
PRESCRIBES
RULE ON NEGATIVE AVERMENTS
E.5 DATE OF COMMISSION OF THE OFFENSE
General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove.
General Rule: It is not necessary to state in the complaint or information 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 a material ingredient of the offense [Sec. 11, Rule 110]
Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation 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 is omitted, then the indictment must show that the accused does not fall within the exemptions.
E.6 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.
Simply put, if the exception is needed for defining the offense, then the information should negate the exception [US v. Chan Toco (1908)]
OFFENSES 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.
WHERE COMPLEX CRIME IS CHARGED Where what is alleged in the information is a complex crime and the evidence fails to
If the name of the true name of the person against whom or against whose property the 305
MODES OF COMMITTING OFFENSE NOT DUPLICITOUS
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.
General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective.
OFFENDED PARTY IS A JURIDICAL PERSON Sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law
Exceptions: (1) Complex crimes; (2) Special complex crimes; (3) Continuous crimes; (4) Crimes susceptible of being committed in various modes; (5) Crimes which another offense is an ingredient [People v. Camerino (1960)].
F. DUPLICITY OF THE OFFENSE; EXCEPTION Duplicity of the offense in an information or complaint means the joinder of two or more separate and distinct offenses in one and the same information or complaint.
G. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION
General rule: The information must charge only one offense [Section 13, Rule 110].
KINDS OF AMENDMENT: (1) Formal Amendment merely states with additional precision something which is already contained in the original information, and which, therefore adds nothing essential for conviction for the crime charged [Gabionza v. CA (2001)]
Exception: Multiple offenses may be charged when the law prescribes a single punishment for various offenses.
REMEDY The filing of a motion to quash is the remedy in case of duplicity of offense in an information.
Examples of Formal Amendment: (a) New allegations which relate only to the range of penalty that the court might impose in the event of conviction; (b) One which does not charge another offense distinct from that already charged; (c) Additional allegation which do not alter the prosecution’s theory of the case so as to surprise the accused or affect the form of defense he has or will assume;
Objection to a complaint or information which charges more than one offense must be timely interposed before trial [Sec. 3, Rule 120]. Failure to do so constitutes a waiver [People v. Tabio (2008)] and the court may convict the accused of as many offenses as are charged and proved, and impose on him the penalty for each offense [Sec. 3, Rule 120].
306
(d) One which does not adversely affect any substantial right of the accused, such as his right to invoke prescription.
(2) It does not cause prejudice to the rights of the accused [Sec 14, Rule 110].
G.2.B. AS TO SUBSTANCE (2) Substantial amendment consists of the recital of facts constituting the offense charged and determinative of the juridisdiction of the court. All other matters are merely of form [Teehankee v. Madayag (1985)]
Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form [Almeda v. Villaluz (1975)]. General rule: Amendment as to substance at this state of the case is proscribed [People v. Zulueta (1951)].
The test as to whether the amendment is merely formal is whether or not a defense under the original information would be equally available after the amendment and whether or not any evidence the accused might have would be equally applicable in one form as in the other [People v. Degamo (2003)].
G.1. AMENDMENT IN FORM SUBSTANCE BEFORE PLEA
Exception: Amendment may be allowed if it is beneficial to the accused [Ricarze v. CA (2007)].
G.3. SUBSTITUTION Substitution of a complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy [Section 14, Rule 110].
AND
General rule: Amendment, formal or substantial, made before the accused enters his plea may be done without leave of court. Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only: (1) Upon motion of the prosecutor (2) With notice to the offended party and (3) With leave of court.
Subject to the Section 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be 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. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information.
The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order (Sec. 14, Rule 110).
G.2. AMENDMENT AFTER PLEA AND DURING TRIAL
Limitations: (1) No judgment has yet been rendered; (2) The accused cannot be convicted of the offense charged or of any other offense necessarily included therein;
G.2.A. AS TO FORM Amendment as to form can only be made under two conditions: (1) Leave of court must be secured; 307
(3) The accused would not be placed in double jeopardy.
For the rule is that one cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed [Hernandez v. Albano (1967)].
G.4. AMENDMENT AND SUBSTITUTION DISTINGUISHED Amendment
Substitution
Formal or substantial changes
Substantial changes
Can be effected without leave of court
Must be with leave of court
Only as to form, there is no need for another PI and retaking of plea
Another PI is entailed and accused has to plead anew
The amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy
Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy [Teehankee v. Madayag (1992)]
Exceptions: (1) Felonies under Article 2, RPC, which are cognizable by the proper court where criminal action was first filed; (2) Those committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip, which may be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during such trip, including place of departure and arrival; (3) Those committed on board a vessel in the course of its voyage, which may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which vessel passed, subject to the generally accepted principles of international law; (4) Piracy, which has no territorial limits and may be instituted anywhere [People v. Lollo and Saraw (1922)]; (5) Libel, which may be instituted at the election of the offended party or suing party in the province or city, subject to Article 360, RPC; (6) In cases filed under BP 22, which may be filed in the place where the check was dishonored or issued, or in case of a crosscheck, in the place of the depositary or collecting bank; (7) For violations of RA 10175 (Cybercrime Prevention Act of 2012), the RTCs have jurisdiction over any violation of the provisions of the Act, including any violation committed by a Filipino national regardless of the place of commission (Sec. 21); (8) In exceptional circumstances, where, to ensure a fair trial and impartial inquiry, the
H. VENUE OF CRIMINAL ACTIONS General rule: In all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where: (1) The offense was committed; or (2) Any of its essential ingredients occurred [Section 15(a), Rule 110] This is the principle of territoriality. Venue in criminal cases is jurisdictional. The court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. Thus, where an offense is wholly committed outside the territorial limits wherein the court operates, said court is powerless to try the case. 308
III. PROSECUTION OF CIVIL ACTION
SC have the power to order a change of venue or place of trial to avoid miscarriage of justice [Sec. 5(4), Article VII, Constitution]. For transitory/ continuing offenses, the courts of the territories where the 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 (1988)].
A. 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.
I. INTERVENTION OF OFFENDED PARTY
Exception: The civil action is not deemed so instituted if the offended party: (1) Waives the civil action; (2) Institutes the civil action prior to the criminal action; or (3) Reserves the right to institute it separately [Section 1, Rule 111].
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].
B. WHEN CIVIL ACTION PROCEED INDEPENDENTLY
Note: This is still subject to the control of the prosecutor [Phil. Rabbit Bus Lines v. People (2004)]
MAY
B.1. INDEPENDENT CIVIL ACTIONS Under the Rules, only civil liability arising from the crime charged is deemed instituted. Hence, the civil actions under the Civil Code, specifically Articles. 32, 33, 34, and 2176, remain separate, distinct, and independent of any criminal prosecution although based on the same act [Phil. Rabbit Bus Lines Inc. v. People (2004)].
Exceptions: (1) 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); (2) Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action; (3) Offended party has already instituted action for civil claims.
B.2. RESERVATION OF RIGHT TO FILE CIVIL ACTION The civil action may also proceed independently of the criminal action when reservation to institute the civil action separately is made. The reservation shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation [Section 1, Rule 111].
309
Instances where reservation to file the civil action separately shall not be allowed: (1) B.P. 22 cases [Sec. 1 [b], Rule 111] (2) Cases cognizable bu the Sandiganbayan [P.D. 1606 as amended by R.A. 8249, Sec. 4] (3) Tax cases [R.A. 9282, Sec. 7 [b][1]]
extinguishes civil liability arising from the delict; (3) When death occurs during pendency of appeal extinguishes criminal liability and the civil liability based thereon [People v. Ayochok (2010)]. Independent civil actions instituted under Articles 32, 33, 34 and 2176, Civil Code, or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate.
B.3. 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 [Section 1, Rule 111].
As regards the parties in the civil action, the heirs of the accused may be substituted without requiring the appointment of an executor/administrator. The court may appoint guardian ad litem for the minors.
C. WHEN SEPARATE CIVIL ACTION IS SUSPENDED 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 [Section 2, Rule 111].
The court shall order the legal representatives to appear and be substituted within 30 days from notice.
E. PREJUDICIAL QUESTION
The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime.
E.1. ELEMENTS A prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal.
D. EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION Upon the death of the accused or convict, criminal liability is extinguished [Article 89, RPC].
Elements of a prejudicial question: (1) The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (2) The resolution of such issue determines whether or not the criminal action may proceed [Sec. 7, Rule 111]. A civil action may be considered prejudicial when the following concur:
As regards civil liability: (1) When death occurs before the arraignment, the case is dismissed without prejudice to filing of civil action against estate of the deceased [Section 4, Rule 111]; (2) When death occurs after arraignment and during pendency of criminal action, it
310
(1) The civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) In the resolution of the issue/s raised in the civil action, the guilt/innocence of the accused would necessarily be determined; (3) Jurisdiction to try the action is lodged in another tribunal [Magestrado v. People (2009)]; (4) The action is instituted prior to the institution of the criminal action [Pimentel v. Pimentel (2010)].
F. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION Filing fees apply when damages are being claimed by the offended party, to be paid upon filing of the criminal action. General rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees [Section 1, Rule 111].
Ratio: The rule seeks to avoid two conflicting decisions in the civil case and in the criminal case [Sy Thiong Siou vs Sy Chim (2009)].
When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial.
E.2. EFFECT General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence [Section 2, Rule 111].
In any other case (i.e., when the amount of damages is not so alleged in the complaint or information filed in court), the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages [General v. Claravall (1991)].
Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case.
E.3. WHERE TO FILE PETITION FOR SUSPENSION
Exceptions: In criminal actions for violation of BP 22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved (AM 04-2-04).
(1) Office of the prosecutor (in the PI stage); (2) Court conducting the PI; or (3) Court where criminal action has been filed for trial, at any time before the prosecution rests [Section 6, Rule 111]. Note: The Rules preclude a motu proprio suspension of the civil action [Riano (2011)].
311
IV. PRELIMINARY INVESTIGATION
forthwith file the corresponding information with the proper court [People v. Perez (1960)]. An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that he raises the challenge before entering his plea [Sec. 26, Rule 114].
A. NATURE OF RIGHT A.1. DEFINITION It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Section 1, Rule 112].
A.4. WHEN RIGHT DEEMED WAIVED (1) Express waiver or by silence [Herrera, Remedial Law, Vol. IV (2007)]; (2) Failure to invoke it during arraignment [People v. De Asis (1993)]; and (3) Consenting to be arraigned and entering a plea of not guilty without invoking the right to PI [People v. Bulosan (1988)].
Preliminary Investigation is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy.
The waiver, whether express or implied, must be in a clear and unequivocal manner [Herrera (2007)].
It is an executive, not a judicial function [Metropolitan Bank and Trust Company v. Tonda (2000)].
A.2. RIGHT INVESTIGATION
TO
The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan (1993)].
A.5. WHEN RIGHT NOT DEEMED WAIVED
PRELIMINARY
(1) 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 (1998)]; or (2) When the accused filed an application for bail and was arraigned over his objection and the accused demand that preliminary investigation be conducted [Go v. CA (1992)].
The right to preliminary investigation is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process [People v. Oandasa (1968)]. It is not a mere formal or technical right but a substantial right.
A.3. WAIVER OF RIGHT
B. PURPOSES OF INVESTIGATION
The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication.
PRELIMINARY
(1) To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty [Raro v. Sandiganbayan (2000)];
When the accused waives his right to preliminary investigation, the fiscal may 312
(2) To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials [Tandoc v. Resultan (1989)].
Note: RTC judges have no power to conduct PI; and MTC judges cannot conduct PI anymore after AM 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005.
C.3. COMELEC
C. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE
The COMELEC may conduct investigation as regards election offenses [Section 2(6), Article IX-C, Constitution; Sec. 265, Omnibus Election Code].
Probable cause means the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.
C.4. OMBUDSMAN The Ombudsman and his deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof [Sec. 12, Article XI, Constitution].
In general, the following may conduct the determination of existence of probable cause: (1) Provincial/city prosecutors and their assistants; (2) National and regional state prosecutors; (3) Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by AM 05-826-SC].
The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well.
C.1. PROSECUTOR The executive determination of probable cause is one made during the PI. It is a function that properly pertains to the public prosecutor who is given a broad range of discretion to determine whether probable cause exists for purposes of indictment. Such finding will not be disturbed by the court unless there is finding of grave abuse of discretion.
C.5. PROCEDURE FOR PRELIMINARY INVESTIGATION
C.2. COURT
1
The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused.
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Filing of the complaint (1) Stating the respondent’s name and address (2) Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public (3) In such number of copies as there
D. RESOLUTION OF INVESTIGATING PROSECUTOR
are respondents, plus 2 copies for the official file [Section 3(a), Rule 112].
2
3
4
THE
If he finds probable cause to hold respondent for trial, he shall prepare a resolution and certify under oath in the information that: (1) He or an authorized officer has personally examined the complainant and his witnesses; (2) That there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; (3) That the accused was informed of the complaint and evidences against him; (4) That he was given opportunity to submit controverting evidence
Action of the investigating officer (1) Within 10 days after the filing of the complaint, the investigating officer will either: (a) Dismiss, if he finds no ground to continue; or (b) Issue a subpoena to the respondent, attaching the complaint and other documents. If subpoena is not possible, the investigating officer shall decide based on what complainant presented; (2) Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense [Section 3(b), Rule 112].
If he finds no probable cause, he shall recommend the dismissal of the complaint [Section 4, Rule 112].
Defendant’s counter-affidavit It must be made within 10 days from receipt of complaint, and must comply with the same requirements as a complaint [Section 3(c), Rule 112]. If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Section 3(d), Rule 112].
E. REVIEW
Clarificatory hearing Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness. The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days. Parties may be present evidence, but they have no right to examine or crossexamine. Questions of parties shall be submitted to the investigating officer. Within 10 day after the investigation, the officer shall determine whether or not there is sufficient ground to hold respondent for trial [Section 3(e), Rule 112].
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1
Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or to the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.
2
Within 10 days from receipt of the resolution, the Prosecutor/Ombudsman will act on the case.
3
No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or ombudsman. In case the investigation officer recommends the dismissal of the complaint but the prosecutor/Ombudsman disagrees, the latter may file the in-formation himself or any deputy or order any prosecutor to do so without conducting a new PI.
4
The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor. The DOJ Secretary may
If filed directly with the prosecutor, Section 3(a), Rule 112 applies. Thus, the complaint must be filed (1) Stating the respondent’s name and address; (2) Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public; and (3) In such number of copies as there are respondents, plus 2 copies for the official file.
review resolutions, via petition for review to the Secretary of Justice, of his subordinates in criminal cases despite the information being filed in court [Section 4, Rule 112; Community Rural Bank of Guimba v. Talavera (2005)]; see also DOJ Circ. No. 70]. The resolution of the Secretary of Justice may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction [Ching v. Sec. of Justice (2006)]. The DOJ resolution is appealable administratively before the 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 (2006)].
The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing.
F. WHEN WARRANT OF ARREST MAY ISSUE If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial. The PI conducted by the prosecutor is executive in nature. It is for the purpose of determining whether or not there exists sufficient ground for the filing of information. The PI conducted by the judge which is properly called preliminary examination is for the determination of probable cause for the issuance of warrant of arrest [P/Supt. Cruz v. Judge Areola (2002)].
G. CASES NOT REQUIRING PRELIMINARY INVESTIGATION NOR COVERED BY THE RULE ON SUMMARY PROCEDURE These are cases punishable by imprisonment of less than 4 years, 2 months and 1 day, and filed with the prosecutor or MTC/MCTC. 315
1
A complaint, which complies with Section 3(a), Rule 112, is filed.
2
Within 10 days after the filing of the complaint/information, if the judge finds no PC 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.
3
The judge may require submission of additional evidence within 10 days from notice, to determine the existence of PC.
4
If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period.
If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if already arrested) and hold him for trial.
5
H.2. RESTRAINING INVESTIGATION
If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.
PRELIMINARY
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: (1) For the orderly administration of justice; (2) To prevent the use of the strong arm of the law in an oppressive and vindictive manner; (3) To avoid multiplicity of actions; (4) To afford adequate protection to constitutional rights; and (5) In proper cases, because the statute relied upon is unconstitutional, or was “held invalid” [Ladlad v. Velasco (2007)].
H. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION H.1. EFFECT OF DENIAL OF RIGHT The absence of PI: (1) Does not impair the validity of the information or otherwise render it defective; (2) Does not affect the jurisdiction of the court; (3) Does not constitute a ground for quashing the information.
REMEDIES OF THE ACCUSED IF THERE WAS NO PI:
I. INQUEST
(1) Refuse to enter a plea upon arraignment and object to further proceedings upon such ground; (2) Insist on a preliminary investigation; (3) File a certiorari, if refused; (4) Raise lack of PI as error on appeal [United States v. Banzuela (1915)]
An inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court [DOJ-NPS Manual].
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 (2001)].
General rule: PI is required to be conducted before a complaint/ information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine [Sec. 1, Rule 112]
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 [Section 6, 3rd par., Rule 112].
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.
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V. ARREST
However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Article 125, RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception (Section 6, Rule 112).
Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense [Section 1, Rule 113].
A. IMMUNITY A.1. PARLIAMENTARY IMMUNITY Senators and Members of the House of Representatives, while Congress is in session and for offenses punishable by not more than 6 years imprisonment are immune to arrest [Section 11, Article VI, Constitution].
PROCEDURE An inquest is considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include: (1) Affidavit of arrest, investigation report, statement of the complainant and witnesses, all of which must be subscribed and sworn to before him; (2) Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person.
A.2. DIPLOMATIC IMMUNITY Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity are immune to arrest (RA 75). Note: Diplomatic immunity is not limited to immunity from arrest only.
B. HOW MADE
It must be terminated within the period prescribed under the provisions of Article 125, RPC. Thus, if after the inquest proceedings: (1) There is no probable cause, the case is dismissed; (2) The accused wants a PI and is willing to waive Article 125, a preliminary investigation conducted; (3) The arrest was without warrant, but there possibly is PC, the accused is released for regular PI; (4) There is PC and the arrest was valid, an information is filed.
By an actual restraint of a person to be arrested; By his submission to the custody of the person making the arrest [Section 2, 1st par., Rule 113]. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary [Sanchez v. Demetrio (1993)]. No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113]. Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. An arrest may be made on any day and at any time of the day or night [Section 6, Rule 113].
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C. ARREST WITHOUT WARRANT, WHEN LAWFUL
(2) Such overt act is done in the presence or within the view of the arresting officer [Zalameda v. People (2009); People v. Laguio (2007)].
General rule: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law [Umil v. Ramos (1991)].
“In his presence” means: (1) He sees the offense, even though at a distance; (2) He hears the disturbances created by the offense and proceeds at once to the scene; or (3) Offense is continuing or has been consummated at the time arrest is made [People v. Evaristo (1992)].
Exceptions: (1) In flagrante delicto [Section 5(a), Rule 113]; (2) Hot pursuit arrest [Section 5(b), Rule 113]; (3) Arrest of escaped prisoner [Section 5(c),, Rule 113]; (4) Other lawful warrantless arrests: (a) Where a person who has been lawfully arrested escapes or is rescued [Section 13, Rule 113]; any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines; (b) By the bondsman, for the purpose of surrendering the accused [Section 23, Rule 114]; (c) Where the accused who is released on bail attempts to leave the country without permission of the court where the case is pending [Section 23, Rule 114].
The following are instances of this type of arrest without warrant: (1) An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Section 5(a), Rule 113 [Teodicio v. CA (2004)]. This is different from instigation, which means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him, and leads to acquittal [People v. Dansico (2011)]. (2) When a person is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest [People v. de Lara (1994)].
C.1. IN FLAGRANTE DELICTO A peace officer or a private person may, without warrant, arrest a person when the person to be arrested: (1) Has committed; (2) Is actually committing; or (3) Is attempting to commit an offense in the presence of the peace officer or private person who arrested him [Section 5(a), Rule 113].
C.2. HOT PURSUIT ARREST A peace officer or a private person may, without warrant, arrest a person when an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it [Section 5(b), Rule 113].
Requisites: (1) The person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and
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Requisites: (1) An offense has just been committed. There must be a large measure of immediacy between the time the offense was committed and the time of the arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured [People v. del Rosario (1999); People v. Agojo (2009)]; and (2) The person making the arrest has probable cause to believe, based on personal knowledge of facts, that the person to be arrested has committed it.
Ratio: At the time of arrest, the escapee is in continuous commission of a crime (i.e., evasion of service of sentence).
C.4. RULES ON ILLEGALITY OF ARREST C.4.A. EFFECT The legality of the arrest affects only the jurisdiction of the court over the person of the accused [People v. Nuevas (2007)].
C.4.B. 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 [Zalameda v. People (2009)].
Probable cause must be based on personal knowledge which means an actual belief or reasonable grounds of suspicion [Abelita III v. Doria (2009)]
There is waiver if the accused voluntarily enters his plea and participates during trial, without previously invoking his objections thereto [Leviste v. Hon Alameda (2010); Borlongan v. Peña (2010)].
Note: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail [Section 5, 2nd par., Rule 113].
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 he raises the objection before he enters his plea [Section 26, Rule 114].
C.3. ARREST OF ESCAPED PRISONER 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 [Section 5(c), Rule 113]: (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.
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, (2007)].
C.4.C. WHEN CURED (1) When the accused voluntarily submits to the jurisdiction of the trial court [Dolera v. People (2009); People v. Alunday (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 (1993)].
Escapee may be immediately pursued or rearrested without a warrant at any time and in any place within the Philippines [Section 13, Rule 113].
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(4) No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113].
D. METHOD OF ARREST D.1. BY OFFICER WITH WARRANT D.1.A. DUTIES OF ARRESTING OFFICER
D.1.B. RIGHTS OF THE ARRESTING OFFICER
(1) Execution of warrant [Section 4, Rule 113]: (a) The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt; (b) The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. (c) In case of the officer’s failure to execute, he shall state the reasons therefor. (2) The officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest [Sec. 7, Rule 113]. (a) This duty does not apply: (i) When the person to be arrested flees; (ii) When he forcibly resists before the officer has opportunity to so inform him; (iii) When the giving of such information will imperil the arrest. (b) 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 [Section 7, Rule 113]. (c) This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment [Mallari v. CA (1996)]. (3) The officer executing the warrant shall arrest the accused and deliver him to the nearest police station or jail without unnecessary delay [Sec. 3, Rule 113];
(1) To summon assistance [Sec. 10, Rule 113]. He may orally summon as many persons as he deems necessary to assist him in effecting the arrest. (2) To break into building or enclosure [Sec. 11, Rule 113], when the following concur: (a) The person to be arrested is or is reasonably believed to be in said building; (b) He has announced his authority and purpose of entering therein; and (c) He has requested and been denied admittance. (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]. Note: Nos. 2 and 3 are also applicable where there is a valid warrantless arrest.
D.2. BY OFFICER WITHOUT WARRANT General rule: The officer shall inform the person to be arrested of: (1) His authority; and (2) The cause of the arrest (Sec. 8, Rule 113). Exceptions: (1) When the person to be arrested is engaged in the commission of the offense; (2) When he is pursued immediately after its commission; (3) When he has escaped, flees or forcibly resists before the officer has the opportunity to so inform him; or 320
(4) When the giving of such information will imperil the arrest.
(2) If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses [People v. Gray (2010); AAA v. Carbonell (2007)].
D.3. BY PRIVATE PERSON (CITIZEN’S ARREST) (1) The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest [Sec. 9, Rule 113], except in the same cases as those for arrest by an officer without a warrant. (2) The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Sec. 7, Rule 112. Otherwise, the private person may be held liable for illegal detention.
E. REQUISITES OF WARRANT OF ARREST
A
F. 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 (2009)].
VALID
Probable cause demands more than suspicion but it requires less than evidence that would justify conviction [People v. Gabo (2010)].
E.1. ESSENTIAL REQUISITES The warrant must: (1) 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 (2) Particularly describe the person to be arrested [Section 2, Article III, Constitution]
G. PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED Fiscal
E.2. 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 [Section 5(a), Rule 112]. The judge does not have to personally examine the complainant and his witnesses. Established doctrine provides, he shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause: (1) If he finds probable cause, he shall issue a warrant of arrest; or
Judge
Executive determination of PC
Judicial determination of PC
Determination of PC to hold a person for trial
Determination of PC to issue a warrant of arrest
Whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial
Whether or not a warrant of arrest should be issued
The determination of probable cause for issuing a warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is a reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor [AAA v. Carbonell (2007)].
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VI. BAIL
(2) Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua or life imprisonment [Section 4, Rule 114].
A. NATURE A.1. DEFINITION
General rule: Bail is not available in capital offenses or those punishable by death, reclusion perpetua or life imprisonment when evidence of guilt is strong.
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 conditions hereinafter specified [Section 1, Rule 114].
Exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong.
A.2. PURPOSE (1) To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial [People v. Hon. Donato (2011)]; (2) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Section 14, Article III, Constitution]; and (3) To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral (1997)].
B.1. CAPITAL OFFENSE A capital offense is an offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Section 6, Rule 114]. The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed. Note: RA 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines) enacted on June 24, 2006 (which repealed RA 8177 and RA 7659) prohibited the imposition of death penalty. Under Section 7, RA 9346, it stated that “[c]apital offense or an offense punishable by reclusion perpetua or life imprisonment.”
A.3. REQUIREMENT OF CUSTODY General rule: Custody of the law is required before the court can act on an application for bail [Miranda v. Tuliao (2006)]. Exceptions: Custody is not required in cases of witnesses posting bail: (1) When bail is required to guarantee the appearance of a material witness [Sec. 14, Rule 119]; (2) When bail is required to guarantee the appearance of a prosecution witness in cases where there is substitution of the information [Riano (2011), citing Sec. 14, Rule 110].
B.2. 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 (2002)].
B. WHEN A MATTER OF RIGHT; EXCEPTIONS
Exception: Only upon a clear and convincing evidence:
Bail is a matter of right: (1) Before or after conviction pending appeal by the MTC; 322
(1) That once granted, the applicant will not be flight risk or will not pose danger to the community; and (2) That there exists special humanitarian and compelling circumstances.
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].
Note: Bail is a matter of discretion in extradition proceedings [Govt. of HK Special Administrative Region v. Olalia (2007)].
Note: In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong [Sec. 8, Rule 114].
B.3. WHEN NOT AVAILABLE Right to bail is also not available: (1) To military personnel accused under general courts martial [Comendador v. de Villa (1991)]; (2) After a judgment of conviction has become final; (3) If he applied for probation before finality, he may be allowed temporary liberty under his bail; (4) After the accused has commenced to serve his sentence [Sec. 24, Rule 114].
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: (1) Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration of the accused; (2) The accused previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification; (3) Commission of offense while under probation, parole or conditional pardon by the accused; (4) Probability of flight; (5) Undue risk that the accused may commit another crime during pendency of appeal.
C. WHEN A MATTER OF DISCRETION (1) Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment and evidence of guilt is not strong; (2) Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. No. 2 refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal.
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.
It 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.
In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation [Harvey v. Defensor-Santiago (1990)].
If the RTC decision changed nature of the offense from non-bailable to bailable, the application for bail can be resolved only by the appellate court [Section 5, Rule 114]. 323
(3) Decide whether the evidence of guilt of the accused is strong based on the summary of the evidence of the prosecution; (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied [Riano (2011), citing Narciso v. Santa Romana-Cruz (2000)].
D. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES D.1. IN GENERAL At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong [Section 8, Rule 114].
Note: Evidence presented during the bail hearing are automatically reproduced at the trial [Sec. 8, Rule 114].
Evidence of guilt in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances.
D.4. WHERE APPLICATION FOR BAIL IS FILED General rule: The application may be filed with the court where the case is pending.
D.2. MINORS CHARGED WITH CAPITAL OFFENSE
Exceptions: (1) If the judge of the court where the case is pending is absent or unavailable, the application may be filed with any RTC/MTC/MeTC/ MCTC judge in the province, city or municipality; (2) Where the accused is arrested in a province, city/municipality other than where the case is pending, the application may be filed with any RTC of the said place. If no judge is available, then with any MeTC/MTC/MCTC judge in the said place. Judge who accepted the application shall forward it, together with the order of release and other supporting papers where the case is pending; (3) When a person is in custody but not yet charged, he may apply with any court in the province or city/municipality where he is held [Sec. 17, Rule 114].
If the person charged with a capital offense is admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. Reason: One who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.
D.3. DUTIES OF JUDGE HEARING THE PETITION FOR BAIL (1) Notify the prosecutor of the hearing and require him to submit his recommendation; (2) Conduct a hearing of the application regardless of whether or not prosecution refuses to present evidence to show that the guilt of the accused is strong;
Note: Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, on trial, or appeal.
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(2) When accused confesses to the commission of the offense unless he later repudiates the same in a sworn statement or in open court as having been extracted through force or intimidation; (3) When accused is found to have previously escaped legal confinement, evaded sentence, or jumped bail; (4) When accused is found to have violated Section 2, RA 6036, which provides that the violation of the accused of the sworn statement (required instead of bail) shall justify the court to order his immediate arrest, if the failure of the accused to report is not justified; (5) 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 (6) Accused committed the offense while on parole or under conditional pardon; (7) Accused has previously been pardoned for violation of municipal/city ordinance for at least two times [Riano (2011), citing Sec. 1, RA 6036].
E. GUIDELINES IN FIXING AMOUNT OF BAIL The considerations are primarily, but not limited, to the following: (1) Financial ability of the accused; (2) Nature and circumstances of the offense; (3) Penalty for the offense charged; (4) Character and reputation of the accused; (5) Age and health of the accused; (6) Probability of the accused appearing at the trial; (7) Forfeiture of other bail; (8) Fact that accused was a fugitive from justice when arrested; (9) Pendency of other cases where the accused is on bail.
F. WHEN BAIL NOT REQUIRED Bail is not required: (1) When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced; (2) If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment [Sec. 16, Rule 114]; (3) In cases filed with the MTC/MCTC for an offense punishable by an imprisonment of less than 4 yrs, 2 mos. and 1 day, and the judge is satisfied that there is no necessity for placing the accused under custody [Riano (2011), citing Sec. 8, Rule 112]; (4) 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 2000 or both where it is established that he is unable to post the required cash or bail bond [Sec. 1, RA 6036].
G. INCREASE OR REDUCTION OF BAIL After the accused is admitted to bail and for good cause, the court may increase or decrease the amount.
G.1. INCREASED BAIL The accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time [Sec. 20, Rule 114].
G.2. REDUCED BAIL Bail is nonetheless required when: (1) When accused was caught committing the offense in flagrante;
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may
325
be released on a reduced bond [Sec. 16, Rule 114].
to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so. An order of forfeiture is interlocutory and is different form the judgment on the bond which is issued if the accused was not produced within the 30-day period [Mendoza v. Alarma (2008)].
H. FORFEITURE AND CANCELLATION OF BAIL H.1. FORFEITURE OF BAIL When the appearance of the accused out on bail is required by court and he failed to appear, the court shall issued an order of forfeiture wherein: (1) The provisional liberty of the accused due to the bail bond shall be revoked and; (2) It shall require the bondsman to produce the principal
H.2. CANCELLATION OF BAIL H.2.A. APPLICATION BY BONDSMEN Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: (1) Surrender of the accused; or (2) Proof of his death.
If the accused failed to appear in person as required, the bondsmen are given 30 days within which to: (1) Produce the body of the principal or give reason for the non-production. The bondsmen may: (a) Arrest the accused; (b) Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking. (2) Explain why the accused failed to appear: (a) If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail. (b) Bondsmen’s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted [Sec. 21, Rule 114].
H.2.B. AUTOMATIC CANCELLATION (1) Upon acquittal of the accused (2) Upon dismissal of the case (3) Upon execution of judgment conviction [Sec. 22, Rule 114].
of
I. APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION Bail is no longer a waiver of these objections [Sec. 26, Rule 114; Leviste v. Alameda (2011)]. Thus, provided that the proper objections are timely raised (i.e., before accused enters a plea), an application or an admission to bail shall not bar the accused from challenging or questioning the: (1) Validity of his arrest; (2) Legality of the arrest warrant; (3) Regularity of preliminary investigation; (4) Absence of preliminary investigation.
Bondsmen can prevent the accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority [Sec. 23, Rule 114].
The court shall resolve the objections as early as practicable but not later than the start of the trial of the case.
Judgment against the bondsmen cannot be entered unless such judgment is preceded by an order of forfeiture and an opportunity given 326
J. HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST
A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circ. No. 39-97].
The accused may be prohibited from leaving the country during the pendency of his case [People v. Uy Tuising (1935); Manotoc v. CA (1986)]. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be re-arrested without warrant [Sec. 23, Rule 114].
SC Circular 39-97 deals only with criminal cases pending in the RTC. As to those cases pending in the MTC as well as those under preliminary investigation, the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO, Watchlist Orders, and Allow Departure Orders.
Hold Departure Order
Watchlist Order
When it may issue
(1) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of first-level courts (MeTC, MTC, MCTC); (2) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government; (3) Against any person, either motu proprio, or upon the request by the Head of a Department of the Government, the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.
(1) Against the accused, irrespective of nationality, in criminal cases pending before the RTC; (2) Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, PFR, or MR before the DOJ or any of its prosecution offices; (3) Against any person pursuant to the Anti-Trafficking in Persons Act of 2003 (RA 9208) or in the interest of national security, public safety or public health.
Validity
An HDO is valid for 5 years reckoned from the date of its issuance, unless sooner terminated.
A watchlist order is valid 60 days reckoned from the date of its issuance, unless sooner terminated or extended for a nonextendible period of not more than 60 days.
Grounds for lifting or cancellatio n
(1) When the validity period has already expired; (2) When the accused has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled.
(1) When the validity period has already expired; (2) When the accused has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; (3) When the PI is terminated, or when the PFR or MR has been denied and/or dismissed.
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ADOs may issue for exceptional reasons to allow the person to leave upon submission of the following: (1) An affidavit of purpose, including an undertaking to report to the DOJ immediately upon return; (2) Authority to travel or travel clearance from the court or appropriate government office or from the investigating prosecutor.
The legislature may enact that when certain facts have been proven they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be rational connection between that facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience [People v. Mingoa (1953)].
EQUIPOSE RULE
VII. RIGHTS OF THE ACCUSED
Where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused [People v. Erguioza (2008)].
A. RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT
B. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM
The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt [People v. Sanchez (2008)].
General rule: An accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information [People v. Ortega (1997)].
The Rules or the law may, however, provide for a presumption of guilt [Hizon v. CA (2009)].
Exception: An information which lacks certain essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein [People v. Palarca (2002)]
In such case, Hizon v. CA (2009) stressed that the statutory presumption is merely prima facie. At no instance can the accused be denied the right to rebut the presumption.
The charge must be set forth with sufficient particularity to enable the accused to intelligently prepare his defense [Balitaan v. CFI of Batangas (1982)].
Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind [Rule 133, Sec.2].
The purpose is served by arraignment [Borja v. Mendoza (1977)]. The title of the complaint, or the designation of the offense charged or the particular law violated is not controlling. No information for a crime will be sufficient if it does not accurately and clearly allege the
elements of the crime charged [People v. Dimaano (2005)].
C.2. TRIAL IN ABSENTIA
C. RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS
Requisites: (1) Prior arraignment; (2) Proper notice of the trial; (3) Failure to appear is unjustifiable [Parada v. Veneracion (1997)].
C.1. RIGHT TO BE PRESENT
An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and crossexamine witnesses who testified against him [Gimenze v. Nazareno (1988)].
General rule: Presence of the accused during the criminal action is not required and shall be based on his sole discretion. Exceptions: Presence of the accused is mandatory: (1) For purposes of identification; (2) At arraignment; [Sec. 1(b), Rule 116]; (3) At the promulgation of judgment except when the conviction is for a light offense. [Sec. 6, Rule 120]
C.3. RIGHT TO COUNSEL (1) It means reasonably effective legal assistance [Gideon v. Wainright (1963)]; (2) It is absolute and may be invoked at all times, even on appeal [Telan v. CA (1991)]; (3) Duty to appoint counsel de oficio is mandatory only at the time of arraignment [Sayson v. People (1988)]; (4) Violation of this right entitles the accused to new trial [People v. Serzo (1997)]. The right to counsel may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused [People v. Del Castillo (2004)]. It must also not be contrary to law, public order, public policy, morals or good customs; (5) Even a person under investigation for an offense shall the right to have a “competent and independent counsel preferably of his own choice.” Included in this right is the right to be informed of his right to counsel [Section 12(1), Article III, Constitution; Section 2(b) RA 7438].
The right to be present at trial is deemed waived when: (1) The accused is absent without just cause at the trial of which he had notice; or (2) The accused under custody escapes, until custody over him is regained.
REQUIREMENTS OF WAIVER: (1) Existence of the right; (2) Knowledge of the existence thereof; (3) Intention to relinquish which much be shown clearly and convincingly; and (4) Where the Constitution or law provides, it must be with the assistance of counsel to be valid. Effects of waiver of right to appear by the accused: (1) Waiver of the right to present evidence and cross-examine witnesses; (2) Prosecution can present evidence if accused fails to appear; and (3) The court can decide without accused’s evidence.
During arraignment, the court has the affirmative duty to inform the accused of his right to counsel and to provide him with one in case he cannot afford it. The court must act on its own volition, unless the right is waived by 329
the accused. During trial, it is the accused who must assert his right to counsel.
The right is applicable to one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself [People v. Nicandro (1986)].
C.4. RIGHT TO DEFEND IN PERSON The accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel [Section 1(c), Rule 115].
An accused “occupies a different tier of protection from an ordinary witness.” He is entitled: (1) To be exempt from being a witness against himself; and (2) To testify as witness in his own behalf.
D. RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF This is subject to cross-examination on any matter covered by his direct examination [Section 1(d), Rule 115].
But if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him [People v. Judge Ayson (1989)].
General rule: Silence will not, in any manner, prejudice him. Exception: Unfavorable inference is drawn when: (1) The prosecution has already established a prima facie case, the accused must present proof to overturn the evidence (2) The defense of the accused is an alibi and he does not testify, the inference is that the alibi is not believeable.
E. RIGHT AGAINST INCRIMINATION
Thus, the right may be waived by the failure to timely assert the right, that is, by answering an incriminating question [Beltran v. Samson (1929)] when the accused testifies in his own behalf and is cross-examined on matters covered by the direct examination [Sec. 1(f), Rule 115]. The questions on cross examination should be on matters related to his direct examination [People v. Judge Ayson (1989)].
SELF-
F. RIGHT TO CONFRONTATION This applies to any witness against the accused at the trial.
The right against self-incrimination has no application to juridical persons [BASECO v. PCGG (1987)].
Where the adverse party is deprived of the right to cross-examine the persons who executed the affidavits, said affidavits are generally rejected for being hearsay [Estrella v. Robles (2007)].
The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible [Villafor vs. Summers (1920)].
However, either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another 330
case or proceeding, judicial or administrative, provided they involve the same parties and subject matter and the adverse party had the opportunity to cross-examine him [Sec. 1(f), Rule 115].
When the accused is denied of this right, he may pursue the following remedies: (1) Motion to dismiss [Corpuz v. Sandiganbayan (2004)]; (2) Mandamus [Lumanlao v. Peralta (2006)].
This right is waived by non-appearance. [Carredo v. People (1990)].
The accused is not entitled to a dismissal where delay was caused by proceedings or motions instituted by him. A dismissal based on a violation of the right to speedy trial is equivalent to an acquittal and double jeopardy may attach even if the dismissal is with the consent of the accused [Condrada v. People (2003)].
The right does not apply in a preliminary investigation. They parties may, however, submit to the investigating officers questions which may be asked to the party or witness concerned [Section 3(e), Rule 112]. Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness [People v. Lavarias (1968)].
G. RIGHT PROCESS
TO
I. RIGHT TO APPEAL In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law [Hilario v. People (2008)].
COMPULSORY
An appeal in criminal case opens the entire case for review and the appellate court may correct even unassigned errors [People v. Tambis (2008)].
This right may be invoked by the accused to secure the attendance of witnesses and the production of evidence in his behalf. If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary [People v. Montejo (1967)].
The right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost [People v. Sabellano (1991)].
H. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
If the accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal [People v. Omar (1991)].
In determining whether or not the right to speedy disposition of cases has been violated, this Court has laid down the following guidelines [Tan v. People (2009); Olbes v. Buemio (2009)]: (1) Length of the delay; (2) Reasons for such delay; (3) Assertion or failure to assert such right by the accused; and (4) Prejudice caused by the delay.
The right to appeal is lost by the unjustified failure to appear at the promulgation of judgment of conviction [Villena v. People (2011)].
J. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS Custodial Investigation involves any questioning initiated by law enforcement 331
officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way [Aquino v. Paiste (2008)].
(2) It must be signed in the presence of his counsel or, in the latter’s absence, upon a valid waiver. In the event of a valid waiver, it must be signed in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him.
It shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.
If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer.
A persons under custodial investigation has the following rights: (1) To be assisted by counsel at all times; (2) To remain silent; (3) To be informed, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation; (4) To be allowed visits by and conferences with specified persons.
The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer [Lumanog v. People (2010)]. The assisting counsel may be any lawyer, except those: (1) Directly affected by the case; (2) Charged with conducting preliminary investigation; (3) Charged with the prosecution of crimes. [Sec. 3, RA 7438].
J.1. RIGHT TO BE ASSISTED BY COUNSEL AT ALL TIMES Waiver of the right to counsel must be made with the assistance of counsel [Sec. 1(1), Article III, Constitution].
J.2. RIGHT TO BE ALLOWED VISITS
This applies specifically in the following instances: (1) Signing of the written custodial report; (2) Signing of the written extra-judicial confession. (3) Signing of the waiver to the provisions of Art. 125, RPC.
A person under custodial investigation has a right to be allowed visits by and conferences with: (1) Any member of his immediate family, which includes his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward; (2) Any medical doctor; or (3) Priest or religious minister, chosen by him or by any member of his immediate family or by his counsel, or by any national NGO
For a valid extrajudicial confession made by a person arrested, detained or under custodial investigation, the following must concur: (1) It shall be in writing and signed by such person; and 332
duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President.
It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [Borja v. Mendoza (1977)].
J.3. CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS
PLEA Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him.
J.3.A. FAILURE TO INFORM The arresting public officer or employee, or any investigating officer, shall suffer a fine of P6,000 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both.
A.1. DUTY OF THE COURT BEFORE ARRAIGNMENT The court shall: (1) Inform the accused of his right to counsel; (2) Ask him if he desires to have one; and (3) Must assign a counsel de oficio to defend him, unless the accused: (a) Is allowed to defend himself in person; or (b) Has employed a counsel of his choice [Section 6, Rule 116].
The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification [Sec. 4, 1st par., R.A. 7438].
J.3.B. OBSTRUCTION, PREVENTION OR PROHIBITION OF RIGHT TO VISITS AND CONFERENCES
Before arraignment and plea, the accused may avail of any of the following: (1) Bill of particulars to enable him to properly plead and prepare for trial; (2) Suspension of arraignment; upon motion, he may ask for suspension of arraignment to pursue a petition for review before the DOJ Secretary under Sec. 11, Rule 116, for a period of suspension shall not exceed 60 days from filing of petition with the reviewing office; (3) Motion to quash the complaint or information on any of the grounds under Section 3, Rule 117 in relation to Sec. 1, Rule 117; (4) Challenge the validity of the arrest or legality of the warrant or assail the regularity or question the absence of preliminary investigation of the charge.
Any person guilty thereof shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years and a fine of P4,000.00 [Sec. 4, 2nd par., R.A. 7438].
VIII. ARRAIGNMENT AND PLEA A. ARRAIGNMENT AND PLEA; HOW MADE This is the stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty [Section 1(a), Rule 116].
If the accused does not question the legality of the arrest or search, this objection is deemed waived. 333
(2) By the judge or clerk of court; (3) By furnishing the accused with a copy of the complaint or information; (4) Reading it in a language or dialect known to the accused; (5) Asking the accused whether he pleads guilty or not guilty. (6) Both arraignment and plea shall be made on record but failure to enter of record shall not affect the validity of the proceedings.
A.2. PROCEDURE OF ARRAIGNMENT
1
The Court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC for the latter to attach the same to the record of the case.
2
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.
3
(1) If the accused plead not guilty, either: (a) He raises an affirmative defense, that is, he admits the charge but raises exempting or justifying circumstances, in which case the order of trial is reversed; (b) He raises a negative defense, that is, he denies the charge, in which case regular trial proceeds; (2) If the accused pleads guilty: (a) For a non-capital offense, the court will promulgate a judgment of conviction; (b) For a capital offense, the prosecution is still required to prove guilt beyond reasonable doubt; (3) If the accused does not enter any plea, a plea of not guilty is entered by the court.
A.2.B. WHEN HELD General rule: The accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person. Exceptions: When the law provides for another period, arraignment should be held within said period, as in the following cases: (1) 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)]; (2) Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay [RA 4908]. Presence of the offended party: The private offended party shall be required to appear in the arraignment for the purpose of: (1) Plea bargaining; (2) Determination of civil liability; and (3) Other matters requiring his presence
The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period [Sec. 1(g), Rule 116].
A.2.A. HOW MADE
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
(1) In open court where the complaint or information has been filed or assigned for trial;
334
offense charged with the conformity of the trial prosecutor alone [Sec. 1(f), Rule 116; AM No. 031-09-SC Part B(2)].
(4) When the plea is indefinite or ambiguous; (5) When he pleads guilty but presents exculpatory evidence [Section 1(d), Rule 116].
In case of failure of accused to appear despite due notice, there is no arraignment in absentia [Nolasco v. Enrile (1985)]. The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court.
Plea of guilty is mitigating if it is made before prosecution starts to present evidence. Except: (1) Where the plea of guilty was compelled by violence or intimidation (2) When the accused did not fully understand the meaning and consequences of his plea (3) Where the information is insufficient to sustain conviction of the offense charged (4) Where the information does not charge an offense, any conviction thereunder being void (5) Where the court has no jurisdiction
There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void.
A.2.C. SPECIFIC RULES (1) Trial in absentia may be conducted only after valid arraignment. (2) Accused must personally appear during arraignment and enter his plea; counsel cannot enter plea for the accused. (3) Accused is presumed to have been validly arraigned in the absence of proof to the contrary. (4) Generally, judgment is void if accused has not been validly arraigned. (5) 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.
C. WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE Requisites: (1) The lesser offense is necessarily included in the offense charged; (2) The plea must be consistent with the consent of both the offended party and the prosecutor, except when the offended party fails to appear despite due notice; (3) The penalty for the lesser offense is not more than two degrees lower than the imposable penalty for the crime charged.
If an information is amended in substance which changes the nature of the offense (not merely as to form), arraignment on the amended information is mandatory [Teehankee v. Madayag (1992)].
C.1. DURING ARRAIGNMENT At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged.
B. WHEN A PLEA OF NOT GUILTY SHOULD BE ENTERED
C.2. AFTER ARRAIGNMENT BUT BEFORE TRIAL
(1) When the accused so pleaded; (2) When he refuses to plead; (3) When he makes a conditional or qualified plea of guilt [Section 1(c), Rule 116];
After arraignment but before trial, the accused may still be allowed to plead guilty to said
335
lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary [Section 2, Rule 116].
The judge must ask whether the accused was assisted by counsel during custodial investigation and PI; ask questions on age, educational attainment and socio-economic status; and ask the defense counsel whether or not he conferred with the accused [People v. Nadera (2000)].
C.3. 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.
Ratio: 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 (2000)].
Guidelines for conducting a search inquiry: (1) Ascertain from the accused himself: (a) How he was brought into the custody of the law; (b) Whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) Under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his 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. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will
D. ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT Conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: (1) Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the pleas; (2) Require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused; (3) Ask the accused if he desires to present evidence in behalf and allow him to do so if he desires [Section 3, Rule 116]. Note: A plea of guilty to a capital offense does not result to an immediate rendering of judgment.
E. SEARCHING INQUIRY The procedure in Section 3, Rule 116, when the accused pleads guilty to a capital offense, is mandatory. The plea must be clear, definite and unconditional. It must be based on a free and informed judgment.
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serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. (5) 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. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. (6) All questions posed to the accused should be in a language known and understood by the latter. (7) 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 (2002)].
should be remanded to the lower court for further proceedings. Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense.
F.1. 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. 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 (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
G. GROUNDS FOR SUSPENSION OF ARRAIGNMENT G.1. UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE TIME OF THE ARRAIGNMENT
F. IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE
When the accused can neither comprehend the full import of the charge nor can he give an intelligent plea, the court shall order his mental examination and, if necessary, his confinement.
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).
The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and
General rule: An improvident plea should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction [People v. De Ocampo Gonzaga (1984)]. The case
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defense counsel had called attention to [People v. Alcalde (2002)].
60 days from the filing of the petition (DOJ Circ. No. 70).
In People v. Dungo (1991), there are three major criteria to determine insanity: (1) Delusion test, where insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances; (2) Irresistible impulse test, where the accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed. (3) Right and wrong test, where a perverted condition of mental and mortal faculties afflicts the accused as to render him incapable of distinguishing between right and wrong.
Rationale: This is to observe judicial courtesy and avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense. If petition for review is not resolved within 60 days, court may insist on the arraignment. With the arraignment of the accused, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same. [Gandarosa v. Flores (2007)].
G.4 OTHER PENDING INCIDENTS In People v. Pascual (1993), there are two tests to determine insanity: (1) Test of cognition, which requires complete deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction. (2) Test of volition, which requires a total deprivation of free will.
G.2. EXISTENCE QUESTION
OF
Such as: (1) Motion to quash (2) Motion for inhibition; and (3) Motion for Bill of particulars
IX. MOTION TO QUASH Form and content The motion must: (1) Be in writing; (2) Be signed by the accused/his counsel; and (3) Distinctly specify the factual and legal grounds [Section 2, Rule 117].
PREJUDICIAL
Rationale: A prejudicial question would be determinative of guilt or innocence. It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment.
G.3. PENDENCY OF PETITION REVIEW
A. WHEN FILED General Rule: At any time before entering his plea, the accused may move to quash the complaint or information [Section 1, Rule 117].
FOR
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
When the accused filed a petition for review of the resolution of the prosecutor with the DOJ or the Office of the President, the accused may file a motion to suspend the arraignment and secure a ruling on his petition for review within
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(4) Double jeopardy
Facts charged do not constitute an offense
In cases covered by the Rules on Summary Procedure, MTQ is allowed only if made on the grounds of lack of jurisdiction or failure to comply with barangay conciliation proceedings [Section 19, Rules on Summary Procedure].
An information which does not charge an offense or does not allege essential elements of a crime is void. The test is whether or not the facts alleged, if hypothetically admitted, would establish the essential elements of the offense, as defined by law without considering matters aliunde [People v. Romualdez (2008)].
B. GROUNDS In general The following grounds for MTQ are exclusive: (1) Facts charged do not constitute an offense; (2) Court trying the case has no jurisdiction over the offense charged; (3) Court trying the case has no jurisdiction over the person of the accused; (4) Officer who filed the information had no authority to do so; (5) The information does not conform substantially to the prescribed form; (6) More than one offense is charged, except when a single punishment for various offenses is prescribed by law; (7) Criminal action or liability has been extinguished; (8) Averments which, if true, would constitute a legal excuse or justification; (9) 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 (Section 3, Rule 117).
That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion (1988)]. The defect is not cured by a failure to move to quash or by a plea of guilty [Suy Sui v. People (1953)]. Instead of dismissing, however, the court should give the prosecution an opportunity to amend the information. Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, the MTQ shall be granted (Section 4, Rule 117). Court has no jurisdiction over the offense charged This refers to jurisdiction over the subject matter, which is the power to adjudge concerning the general question involved.
Note: Although the rule is that grounds not asserted in the motion to quash are waived, the following objections are not subject to waiver: (1) Facts charged do not constitute an offense (2) Court trying the case has no jurisdiction over the offense charged (3) Criminal action or liability has been extinguished (4) Double jeopardy
In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Rule 110, Sec. 15; Lopez v. City Judge (1966)].
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In private crimes, the complaint of the offended party is necessary to confer authority to the court.
Complaint or information does not conform substantially to the prescribed form
Court has no jurisdiction over the person of the accused
The formal and substantial requirements are provided for in Sections 6 to 12, Rule 110.
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 (1993)].
General rule: Lack of substantial compliance renders the accusatory pleading nugatory.
When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead v. Argel (1982)].
Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia (1997)].
Officer who filed the information had no authority to do so
Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars (Section 9, Rule 116).
Exception: Mere defects in matter of form may be cured by amendment.
Authority to file and prosecute criminal cases is vested in: (1) Provincial fiscals and their assistants. (2) City fiscals and their assistants. (3) Chief State Prosecutor and his deputies (4) Other officers authorized by law (e.g., Ombudsman, COMELEC).
More than one offense is charged General rule: The complaint or information must charge only one offense (Section 13, Rule 110). Exceptions: (1) Those cases in which existing laws prescribe a single punishment for various offenses; (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.
The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense [Cudia v. CA (1998)]. An information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. For election offenses, it must be signed by the duly deputized prosecutors and legal officers of the COMELEC.
However, this ground is waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of two or more separate
Lack of authority of the officer is not cured by silence, acquiescence, express consent or even by amendment. 340
offenses in the same information [People v. Villamor (1998)]. Criminal action extinguished
or
liability
has
Does not require a prior leave of court
May be filed either with leave or without leave of court
Grant does not necessarily follow a dismissal (Court may order the filing of a new complaint or information)
Grant is deemed an acquittal and would preclude the filing of another information or appeal by the prosecution
If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies
The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari before judgment” If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer is filed without leave, the accused waives the right to present evidence and submits the case for judgment [Section 23, Rule 119]
been
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; (7) Pardon in private offenses. Protection from prosecution under a statute of limitation is a substantive right. (People v. Sandiganbayan (1992)) That it contains averments if true would constitute a legal excuse or justification Examples: (1) Justifying circumstances (2) Exempting circumstsnces (3) Absolutory causes Motion to quash and demurrer distinguished Motion to quash Demurrer to evidence Filed before entering plea
Filed after prosecution rested its case
the has
Does not go into the merits of the case
Based upon the inadequacy of the evidence adduced by the prosecution
Grounds are stated in Rule 117
Ground is “insufficiency of evidence” to convict
Effects of sustaining the motion to quash Filing another complaint/information General rule: Court may order that another complaint or information be filed (Section 5, Rule 117). Exception: The court may not do so if MTQ was based on the following: 341
(1) Criminal action or liability has been extinguished; (2) Double jeopardy.
dismissal is made prior to arraignment and on MTQ [People v. Purisima (1978)]. Order denying MTQ
Discharge of the accused General rule: If in custody, the accused shall not be discharged unless admitted to bail [Section 5, Rule 117]. The order granting the MTQ must state either release of the accused or cancellation of his bond. Exception: When there is no order to file another complaint/information or, if there is one, when no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused shall be discharged. Exception to the exception: The accused will not be discharged if he is in custody for another charge.
Order granting MTQ
Interlocutory
Final Order
Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari
Immediately appealable but subject to rules on double jeopardy
Does not dispose of the case upon its merits
Disposes of the case upon its merits
Proper remedy: appeal after the trial
Proper remedy: appeal the order
Consequence: Arraignment
Consequence: Amend information if possible
Note: The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating the special defenses invoked in their MTQ [Serana v. Sandiganbayan (2008)]. However, if the court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies [Lazarte v. Sandiganbayan (2009); Javier v. Sandiganbayan (2009)].
Remedies of the prosecution General rule: The prosecution may amend the information to correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information [Section 4, Rule 117].
Exception to the rule that sustaining the motion is not a bar to another prosecution
Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense.
General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense (Section 6, Rule 117).
The prosecution may appeal from the order of quashal to the appellate court.
Exception: It will bar another prosecution when the ground for the quashal is either: (1) The criminal action or liability has been extinguished; or (2) The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged.
If the information was quashed because it did not allege the elements of the offense, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where 342
act or omission constituting the former charge; (2) The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; (3) 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.
Double jeopardy The right against double jeopardy prohibits the prosecution for a crime of which he has been previously convicted or acquitted [Caes v. IAC (1989)]. Rule of double jeopardy When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense (Section 3(i), Rule 117).
Same act An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy. However, the second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People v. Relova (1987)].
Kinds of double jeopardy No person shall be put twice in jeopardy for the same offense; When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act (Section 21, Article III, Constitution). Same offense The offenses are penalized either by different sections of the same law or by different statutes. The essential elements of each must be examined. The test is whether or not evidence that proves one likewise proves the other [People v. Ramos (1961)]. It is not necessary to have absolute identity [People v. Relova (1987)].
Requisites to successfully invoke double jeopardy (1) A first jeopardy must have attached; (2) The first jeopardy must have been validly terminated; and (3) 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 (2003)].
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.
Requisites for first jeopardy to attach (1) The accused has been convicted/acquitted, or the case against him was dismissed/terminated without his express consent;
Exceptions: (1) The graver offense developed due to supervening facts arising from the same 343
(2) The conviction, acquittal or dismissal was made by the court with competent jurisdiction; (3) There is a valid complaint or information or other formal charge is sufficient in form and substance to sustain conviction; (4) The accused pleaded to the charge (Riano (2011), citing several cases; People v. Honrales (2010)).
Section 8 does not state the grounds for provisional dismissal. However, according to the case of Los Baños v. Pedro (2007), the delimitation of the grounds available in MTQ suggests that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, and not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain. When dismissal becomes permanent (time bar rule) One year after issuance of the order without the case having been revived for offenses punishable: (1) By imprisonment not exceeding 6 years; (2) By fine of any amount; (3) By both (Section 8, Rule 117); (4) Two years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 years.
When dismissal constitutes acquittal Dismissal constitutes acquittal when it is granted: (1) Upon demurrer to evidence; (2) Due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent).
Always based on the merits. Defendant’s guilt was not proven
Double jeopardy always attaches
Grounds
Even with the consent of the accused, however, dismissal has the effect of acquittal when predicated on: (1) Insufficiency of the prosecution’s evidence or (2) Denial of the right to a speedy trial [Alamario v. CA (2001)].
Does not decide the case on the merits. Does not determine
Double jeopardy will not always attach
Provisional dismissal is dismissal without prejudice to its being refiled or revived. Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal.
Without express consent This refers only to dismissal or termination of the case. It does not refer to the conviction or acquittal [People v. Labatete (1960)]. If consent is not express, dismissal will be regarded as final (i.e., with prejudice to refilling) [Caes v. IAC (1989)].
Acquittal
beyond reasonable doubt
Provisional dismissal
However, a dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan (1986)].
Dismissal
innocence or guilt
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X. PRE-TRIAL
The State may revive beyond the periods provided there is a justifiable necessity for the delay. The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People v. Lacson (2003)].
Application of judicial affidavit rule Under Section 9, AM 12-8-8-SC: (1) This Judicial Affidavit Rule shall apply to all criminal actions: (a) Where the maximum of the imposable penalty does not exceed six years; (b) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (c) With respect to the civil aspect of the actions, whatever the penalties involved are. (2) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if 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. (3) 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.
The following are conditions sine qua non for the application of the time-bar rule: (1) The prosecution with the express conformity of the accused or the accused 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 (Section 8, Rule 117); (2) The offended party is notified of the motion for the provisional dismissal of the case (3) The court issues an order granting the motion and dismissing the case provisionally; (4) The public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Lacson (2003)). A case may be revived by: (1) Refiling of the information; (2) Filing of a new information for the same offense or one necessarily included in the original offense charged. General rule: Upon revival of the case, there is no need for a new PI. Exceptions: (1) If the original witnesses have recanted their testimonials or have died; (2) If the accused is charged under a new criminal complaint for the same offense; (3) If the original charge is upgraded; (4) If the criminal liability is upgraded from accessory to principal. 345
Matters to be considered during pre-trial Pre-trial is mandatory in all criminal cases. Its main objective is to achieve an expeditious resolution of the case.
death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. Circumstances that qualify a crime and increases its penalty to death cannot be the subject of stipulation [People v. Sitao (2002)].
Coverage The court shall order pre-trial in all criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC.
Marking for identification of evidence Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence.
Period General rule: The court shall order a pre-trial conference after arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused.
What the court should do when prosecution and offended party agree to the plea offered by the accused
Exception: A shorter period may be provided by special laws or SC circulars.
Plea bargaining It is the process in criminal procedure whereby the accused, offended party, and the prosecution work out a mutually satisfactory disposition of the case subject to court approval (See DOJ Circ. No. 35, as amended by Circ. No. 55 for the guidelines on plea bargaining as well as note on Rule 116). 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 (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 lesser offense is without the consent of the offended party and the prosecutor (People v. De Luna (1989); Section 7(c), Rule 117; see Section 2, Rule 116).
Things considered (1) Plea bargaining; (2) Stipulation of facts; (3) Marking for identification of evidence; (4) Waiver of objections to admissibility of evidence; (5) Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial); (6) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case (Section 1, Rule 118). Role of the judge 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 (AM 03-1-09SC). Stipulation of facts This is no longer prohibited in criminal cases (People v. Hernandez (1996)). However, in a case of rape with the allegation that the victim is below 12 years of age which qualifies said crime and increases its penalty to
Effect when the prosecution and the offended party agree to the plea offered by the accused The Court shall: (1) Issue an order which contains the plea bargaining arrived at;
346
(2) Proceed to receive evidence on the civil aspect of the case; and (3) Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence (AM 03-1-09-SC).
Ratio: This is to enforce the mandatory requirement of pre-trial in criminal cases (Section 1, Rule 118). Note: The accused is not included because his constitutional right to remain silent may be violated. 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.
Pre-trial agreement Form (1) Must be in writing; (2) Signed by the accused; (3) Signed by his counsel, If this is not followed, the admissions cannot be used against the accused (i.e., inadmissible in evidence). The constitutional right to present evidence is waived expressly.
Pre-trial order Issuance The pre-trial order is: (1) Issued by the court; (2) Within 10 days after the pre-trial (AM 03-109-SC).
General rule: Court approval is required. Exception: Agreements not covering matters referred to in Section 1, Rule 118, need not be so approved (AM 03-1-09-SC).
Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People v. Santiago (1989)].
Effect The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated. Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; he must assume the consequences of the disadvantage (Bayas v. Sandiganbayan (2002)).
Content (1) Actions taken; (2) Facts stipulated; (3) Evidence marked; (4) Admissions made; (5) The number of witnesses to be presented; and (6) The schedule of trial [Section 4, Rule 118].
Non-appearance during pre-trial The court may impose proper sanctions or penalties (reprimand, fine or imprisonment), if counsel for the accused or the prosecutor: (1) Does not appear at the pre-trial conference; and (2) Does not offer an acceptable excuse (Section 3, Rule 118).
Note: Nos. 4 to 6 are added by AM 03-1-09-SC to the requirements under Section 4, Rule 118. Effect (1) Binds the parties. 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. 347
XI. TRIAL
No such limitation is provided for in criminal cases; (2) Limits the trial to those matters not disposed of; (3) Controls the course of the action during trial, except if modified by the court to prevent manifest injustice;
Instances when presence of accused is required by law General rule: The presence of the accused during the trial may be waived.
Referral of some cases for court annexed mediation and judicial dispute resolution Under AM No. 03-1-09 (Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct or Pre-Trial and use of Deposition-Discovery Measures), after the arraignment, the court shall forthwith set the pre-trial conference within 30 days from the date of arraignment, and issue an order: (1) Requiring the private offended party to appear thereat for purposes of pleabargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence; (2) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pretrial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and (3) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available.
Exception: The presence of the accused during the trial is required by law for purposes of identification. 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 (Lavides v. CA (2000)). Note: The presence of the accused is also required in the following cases: (1) At arraignment; (Rule 116, Sec. 1(b)) (2) At the promulgation of judgment, unless the conviction is for a light offense (Rule 120, Sec. 6). Requisites before trial can be suspended on account of absence of witness (1) The witness must be either absent or unavailable; (2) The absent or unavailable witness must be essential [Riano (2011)]. “Absent” means that his whereabouts are unknown or cannot be determined by due diligence. “Unavailable” means that his whereabouts are known but presence for trial cannot be obtained by due diligence. “Essential” means indispensable, necessary, or important in the highest degree (Black’s Law Dictionary). The period of delay resulting from the absence or unavailability of an essential witness shall 348
be excluded in computing the time within which trial must commence (Section 3, Rule 119).
Remedy when accused is not brought to trial within the prescribed period Effect of delay On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial (Section 9, Rule 119).
Responsibility of the counsel However, the court may, without prejudice to any appropriate criminal and administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish the counsel for the accused, the public prosecution or public attorney who; Knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; or Otherwise willfully fails to proceed to trial without justification consistent with the provisions of the Speedy Trial Act.
Factors to consider: (1) Duration of the delay; (2) Reason therefor; (3) Assertion of the right or failure to assert it; and (4) Prejudice caused by such delay [Mari and People v. Hon. Gonzales (2011)]. Must be raised prior to trial; otherwise, the right to dismiss is considered waived under Section 9, Rule 119.
Conditional examination When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused (Section 15, Rule 119).
Burden of proof The accused has the burden of proving the ground of denial of right to speedy trial for the motion. The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Section 3, Rule 119. This is subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore. Requisites for discharge of accused to become a state witness Discharge of a co-accused It is the duty of the prosecutor to include all the accused in the complaint/information. He may ask the court to discharge one of them after complying with the conditions prescribed by law (Rule 119, Sec. 17). This applies only when the information has already been filed in court. Thus, even the state witness is include as accused prior to discharge.
Trial in absentia Requisites: (1) Accused has been arraigned; (2) He was duly notified of trial; (3) His failure to appear is unjustified. Ratio: This is to speed up disposition of cases.
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Requisites (1) Two or more persons are jointly charged with the commission of any offense. (2) Upon motion of the prosecution before resting its case (3) Petition for discharge is filed before the defense has offered its evidence. [People v. Anion (1988)] (4) Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. (5) The court is satisfied of the following: (a) Absolute necessity for the testimony of the accused whose discharge is requested; This means 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 (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 [Section 17, Rule 119].
Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge, these effects do not set in. Any error in asking for and in granting the discharge cannot deprive the discharge of the acquittal and the constitutional guaranty against double jeopardy [People v. Verceles (2002)]. Conviction of the accused against whom discharged state witness testified is not required. Subsequent amendment of the information does not affect discharge [People v. Taruc (1962)]. Note: If the discharge is not granted, the affidavit of the accused cannot be used by the prosecution. Demurrer to evidence A demurrer to evidence is defined as “an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue” [Pasag v. Parocha (2007), citing Black’s Law Dictionary]. General rule: An order granting the accused’s demurrer to evidence amounts to an acquittal.
Note: The evidence adduced in support of the discharge shall automatically form part of the trial.
Exception: When there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence [Hon. Mupas v. People (2011)].
Effects of discharge of accused as state witness General rule: The order of discharge shall: (1) Amount to an acquittal of the discharged accused; (2) Bar future prosecutions for the same offense [Section 18, Rule 119].
The order granting the demurrer is not appealable but may be reviewed via certiorari under Rule 65 [(People v. Sandiganbayan, Marcos (2012)].
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Ratio: This is to prevent the filing of demurrer based on frivolous and flimsy grounds.
(3) It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People (1999)].
How initiated By the court motu proprio, after giving the prosecution the opportunity to be heard; Upon demurrer to evidence filed by the accused: (1) With leave of court; (2) Without leave of court [Section 23, Rule 119].
Right of the accused to present evidence after demurrer is denied Filed with leave Filed without leave of court of court May evidence defense
Motion for leave to file demurrer (1) It must specifically state its grounds. (2) It must be filed within a non-extendible period of 5 days after the prosecution rests (i.e. after the court shall have ruled on the prosecution’s formal offer). Prosecution may then oppose within a non-extendible period of 5 days from receipt. (3) If leave of court is granted, the demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period [Section 23, Rule 119]. Effect granting demurrer (1) The court dismisses the action on the ground of insufficiency of evidence [Section 23, Rule 119]. This amounts to acquittal of the accused. (2) Sufficient evidence for frustrating a demurrer is evidence that proves: (3) Commission; and (4) Precise degree of participation [Gutib v. CA (1999)]. Effect of denial of motion for leave to file demurrer (1) Accused should choose to insist on filing demurrer even without leave or to present evidence for his defense; (2) Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment [Section 23, Rule 119]; 351
adduce in his
Waives the right to present evidence (Section 23, Rule 119)
Purpose is to determine whether or not the demurrer was filed merely to stall the proceedings
Submits the case for judgment on the basis of the evidence for the prosecution
Implied leave of court is no longer sufficient and prevents accused from presenting evidence (e.g. accused files motion with reservation to present evidence in case motion is denied)
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 If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his coaccused, then the demurrer is deemed resolved
XII. JUDGMENT
Contents of judgment In case of conviction (1) The judgment of conviction shall state: (2) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission; (3) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact; (4) The penalty imposed upon the accused; (5) The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it; (6) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived [Section 2, Rule 120].
Requisites of a judgment A 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] Form (1) Written in official language. If given verbally, it is incomplete [People v. Catolico (1972)]; (2) Personally and directly prepared by the judge; (3) Signed by the judge. The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. But the judge who only took over can render a valid decision by relying on the transcript. It does not violate due process [People v. Badon (1999)]; (4) Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based [Section 1, Rule 120].
Proof beyond reasonable doubt It is that degree of proof which produces conviction in an unprejudiced mind [People v. Bacalzo (1991)].
There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed.
Judgment for two or more offenses Where the accused fails to object to two or more offenses charged in a single information/complaint before trial, the court may: (1) Convict him of as many offenses as are charged and proved, except when one of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act; and (2) Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense [Section 3, Rule 120], subject to the three-fold rule on the service of penalty.
Failure on the part of the TC to make a finding of fact is a revocable error. A.2. Judge who renders decision The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular, especially when the evidence on record is sufficient to support its conclusion [People v. Alfredo (2010)].
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(2) An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter [Section 5, Rule 120]. (3) The effect is that the accused may be convicted of: (4) The offense proved which is included in the offense charged; or (5) The offense charged which is included in the offense proved [Section 4, Rule 120].
B.1.c. Judgment in case of variance between allegation and proof General rule: The defendant can be convicted only of the crime with which he is charged. Ratio: He has the right to be informed of the nature of the offense with which he is charged before he is put on trial [People v. Guevarra (1989)]. However, minor variance between the information and the evidence: (1) Does not alter the nature of the offense; (2) Does not determine or qualify the crime or penalty; (3) Cannot be ground for acquittal.
The right to be informed of the charges has not been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein [People v. Villamar (1998)]. Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven.
Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved [Section 4, Rule 120]. (1) The accused can be convicted of an offense only when it is both charged and proven. (2) The mere fact that the evidence presented would indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information.
State liability for unjust conviction The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes (RA 7309). The following may file claims for compensation before the Board: (1) Any person who was unjustly accused, convicted and imprisoned but subsequently released by virtue of a judgment of acquittal; (2) Any person who was unjustly detained and released without being charged; (3) Any victim of arbitrary or illegal detention by the authorities as defined in the RPC under a final judgment of the court; and (4) Any person who is a victim of violent crimes, including rape and shall likewise refer to offenses committed with malice which resulted in death or serious physical and/or psychological injuries, permanent
Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense. When an offense includes or is included in another (1) The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. 353
incapacity or disability, insanity, abortion, serious trauma, or committed with torture, cruelly or barbarity [Section 3, RA 7309].
(2) Upon motion of the accused, after the prosecution rested its case, on the ground that the evidence fails to show beyond doubt that accused is guilty.
For victims of unjust imprisonment or detention, the compensation shall be based on the number of months of imprisonment or detention and every fraction thereof shall be considered one month; Provided, however, That in no case shall such compensation exceed P1,000 per month. In all other cases, the maximum amount for which the Board may approve a claim shall not exceed P10,000 or the amount necessary to reimburse the claimant the expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other expenses directly related to injury, whichever is lower. This is without prejudice to the right of the claimant to seek other remedies under existing laws [Section 4, RA 7309].
Reasonable doubt is doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt. Acquittal based on failure to prove guilt beyond reasonable doubt does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence. Thus, it does not bar a separate civil action based on quasi-delict [Lontoc v. MD Transit (1988)]. The court may hold the accused civilly liable even when it acquits him. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. 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 appeal, in his name and not in the name of the People.
In case of acquittal The judgment of conviction shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. 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
The judge acquitting an accused cannot punish him at the same time.
Terminates the case Decision on the merits based on a finding that the accused is not guilty
Not on the merits but no finding that accused is not guilty
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.
Acquittal means a finding of not guilty based on the merits, either: (1) Because the evidence does not show that his guilt is beyond reasonable doubt; or 354
Promulgation of judgment; instances promulgation of judgment in absentia
served in last known address (Section 6, Rule 120).
of
Sin perjuicio judgment It is a judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment [Dizon v. Lopez (1997)].
Promulgation Promulgation is the official proclamation or announcement of a judgment or order. Requisites: (1) There must be a judge or judges legally appointed or elected and actually acting either de jure or de facto, and (2) The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it [Miguel v Municipal Trial Court (1986)].
Promulgation in certain circumstances Promulgation where the judge is absent The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city [Section 6, Rule 120]. Where presence of accused is required; exceptions General rule: Presence of the accused is mandatory in the promulgation of judgment.
(3) The judgment or sentence does not become a judgment or sentence in law until it is: (4) Read and announced to the defendant; or (5) Has become a part of the record of the court [US v. CFI of Manila (1913)].
Exception: Convictions for light [Section 6, Rule 120].
Where there is no promulgation of judgment, no right to appeal accrues. Merely reading the dispositive portion of the decision is not sufficient. Judgment must state the facts and the law on which it is based. While SC has expressed approval of the practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage, such refers to the preparation of the decision and not to promulgation. There is no more reason to keep it a secret at the stage of promulgation.
offenses
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, shall be allowed to avail of the remedies within 15 days from notice [Section 6, Rule 120; People v. De Grano (2009)]. C.4.c. Promulgation when accused is confined or detained in another city Promulgation will be done in the RTC which has jurisdiction over the place of confinement. In this case, the court promulgating the judgment shall have authority to accept notice
Notice for promulgation The Clerk of Court gives notice to the accused personally or through the bondsman or warden and counsel. If the accused jumps bail or escapes from prison and was tried in absentia, notice will be 355
XIII. NEW TRIAL OR RECONSIDERATION
of appeal and to approve the bail bond pending appeal [Section 6, Rule 120] 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 copy at the accused’s last known address or through counsel (Section 6, Rule 120).
Grounds for new trial Errors of law or irregularities The court shall grant a new trial when errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial.
Promulgation when a judge is no longer a judge If at the time of the promulgation, the judge penning the decision has ceased being a judge of the court, the decision would not be an act of the court. (People v. Dimalanta) Promulgation by a succeeding judge produces no legal effect since it cannot restore validity to a document already void.
General rule: Errors of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity. 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 of the accused.
When does judgment become final (1) After the lapse of the period for perfecting an appeal; (2) When the sentence has been partially/totally satisfied or served; (3) The accused has expressly waived in writing his right to appeal; (4) When the accused applies for probation, and thereby waives right to appeal.
Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. New and material evidence The court shall grant a new trial when 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 [Estino v. People (2007)]. 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 (2009)].
Judgment also becomes final when judgment is an acquittal (People v. Sandiganbayan (2010)). Note: Before the judgment becomes final, the TC has plenary power to make, either on motion or motu proprio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice [Section 7, Rule 120]. After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors.
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 [Section 3, Rule 121]. 356
justice. In that case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel’s gross mistake and negligence.
Requisites before a new trial may be granted on ground of newly discovered evidence Requisites: The evidence: (1) Was discovered after the trial; (2) Could not have been discovered and produced at the trial even with the exercise of reasonable diligence [US v. Pico (1982)]; (3) Burden of proving this is on the accused. [US v. Torrente (1922)]; (4) Is material, not merely cumulative/corroborative/impeaching; and (5) Is of such weight that it would probably change the judgment if admitted [Jose v. CA (1997)].
When there is variance between two reports In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police report, not new, and which could have been discovered with due diligence, because the evidence contained in such was at such variance with the health officer’s report at trial, that its contents raised doubts to the guilt of the accused. Effects of granting new trial or reconsideration
It must be of weighty influence and will affect the result of the trial [People v. Alfaro (2003)].
In all cases The original judgment set aside or vacated; A new judgment is rendered accordingly;
Interest of justice as gauge for introduction of new evidence In People v. Almendras (2003), the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of
Other effects Other specific effects (see table) also result when granted upon different grounds (Section 6, Rule 121).
Ground
Effect
Action of the court
Errors of law or irregularities committed during the trial
All proceedings and evidence affected shall be set aside and taken anew. If error or irregularity goes into the jurisdiction, the entire proceeding is void and must be set aside.
The court will allow introduction of additional evidence in the interest of justice.
Newly-discovered evidence
Evidence already adduced shall stand and the newly-discovered and such other evidence shall be taken and considered together with the evidence already in the record.
The court will allow introduction of other such evidence in the interest of justice.
The remedy of the prosecution in case of grave abuse of discretion in the grant of the MNT/MR is certiorari or prohibition. Otherwise, it may no
In case of grave abuse of discretion
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longer have opportunity to question the order if accused is acquitted after a new trial is conducted, because of the rule on double jeopardy (Luciano v. Estrella (1970)).
law)
E. Application of the Neypes doctrine in criminal cases The Neypes doctrine allows 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 or MR. Neypes v. CA (2005) declared that: “Henceforth, this ‘fresh period rule’ shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.
XIV. Appeal 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 (1999)]. Where to appeal For cases decided by
REMEDIAL LAW
RTC If it involves questions of law only If it involves constitutionality or validity of any treaty/law/ordinance/EO / regulation or the jurisdiction of the inferior court In criminal cases involving offenses for which the penalty imposed is death or life imprisonment Other offenses, which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense
SC
CA or Sandiganbayan
SC
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 (2009)].
Appeal to
MTC/MeTC/MCTC
RTC
RTC or MTC/MeTC/ MCTC (if it is government duty-related, i.e., filed under EO 1, 2, 4 and 14A)
Sandiganbaya n
RTC (if it involves questions of fact and of
CA
Who may appeal General rule: Any party may appeal from a judgment or final order [Section 1, Rule 122]. Exceptions: A party may not appeal if the accused will be placed in double jeopardy by such action [Section 1, Rule 122];
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If the judgment is for conviction and the accused fails to appear without justifiable cause, he would lose the remedy to appeal [Section 6, Rule 120].
REMEDIAL LAW
Exceptions: Where a particular provision applies only to either of said courts; Criminal cases governed by the Revised Rules on Summary Procedure [Section 1, Rule 123].
Procedure in the lower courts
1
When appeal to be taken. Within 15 days from promulgation of the judgment or from notice of the final order appealed from. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel.
2
Transmission of record to RTC. Within 5 days from perfection of the appeal, the COC shall transmit the original record to the appropriate RTC.
3
Notification of parties. Upon receipt of the complete record, TSN and evidence of the case, the RTC COC shall notify the parties of such fact.
4
Submission of memoranda/briefs. Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so.
5
Decision. After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed.
Offenses falling under the jurisdiction of the MTC/MCTC Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s Office [Salcedo v. Nobles-Bans (1985)]. Offenses falling under the jurisdiction of the MeTC In Metro Manila and other chartered cities, criminal cases shall be commenced only by information; thus, the complaint may be filed only with the Office of the City Prosecutor If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information [Salcedo v. Nobles-Bans (1985)]. Procedure in the Court of Appeals Parties and title In all criminal cases appealed to the CA, the party appealing shall be called the “appellant” and the adverse party the “appellee.” The title of the case shall remain as it was in the court of origin (i.e., People v. John Doe) (Section 1, Rule 124). Brief for the appellant The appellant shall file seven copies of his brief with the clerk of court, accompanied by proof of service of two copies on the appellee. It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of
General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC.
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REMEDIAL LAW
court’s notice that the evidence is already attached to the record [Section 3, Rule 124].
Dismissal of appeal for abandonment or failure to prosecute (grounds)
Brief for appellee Appellee shall file seven copies of his brief with the clerk of court, accompanied by proof of service of two copies on the appellant. It shall be filed within 30 days from receipt of the appellant’s brief [Section 4, Rule 124].
Appellant fails to file his brief within the prescribed time The CA may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief with the time prescribed, except where the appellant is represented by a counsel de oficio. 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. However, dismissal is proper despite lack of notice: 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 (1948)]; If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment [Salvador v. Reyes (1949)].
Reply to appellee’s brief Filing a reply is optional. Thus, the appellant may file a reply brief covering matters raised in the appellee’s brief but not in the brief of the appellant. It must be filed within 20 days from receipt of the appellee’s brief (Section 4, Rule 124). Extension of time for filing briefs General rule: Extension of time for the filing of briefs is not allowed. Exception: Extension may be granted for good and sufficient cause. It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended [Section 5, Rule 124]. The court may grant as many extensions as may be asked [Gregorio v. CA (1976)].
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 [Section 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 (1941)]. However, the appeal will not be dismissed despite escape: 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
Form of briefs Briefs shall be printed/encoded/ typewritten, in double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width. Mimeographed copies are not allowed [Section 6, Rule 124]. Content of briefs The briefs in criminal cases shall have the same contents as provided in Sections 13 to 14, Rule 44 [Section 7, Rule 124] .
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after, the SC said circumstances were not sufficient to justify dismissal of the appeal [People v. Valencia (1949)]; If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities [People v. Buenaventura (1994)]; In case of automatic review [People v. Cornelio (1971)].
REMEDIAL LAW
When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors [Ko Bu Lin v. CA (1982)]. CA’s power to receive evidence The CA has power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: (1) Falling within its original jurisdiction; (2) Involving claims for damages arising from provisional remedies; (3) Where the court grants a new trial based only on the ground of newly-discovered evidence.
Prompt disposition of appeal Appeals of accused who are under detention are given precedence in their disposition over other appeals. The accused need not be present in court during the hearing of the appeal [Section 9, Rule 124]. Reversal/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 [Section 10, Rule 124].
CA’s trials and hearings must be continuous and completed within three months, unless extended by the Chief Justice [Section 12, Rule 124]. Quorum in the CA (1) Three CA Justices constitute a quorum for the sessions of a division; (2) The unanimous vote of the three Justices of a division is necessary for the pronouncement of a judgment or final resolution; (3) Decision is reached through a consultation before the writing of the opinion by a member of the division; (4) If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to designate two additional Justices to sit temporarily with them. They shall then form a special division of five members; (5) The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution;
When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings. Ratio: The TC is in a better position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling (1976)] Scope of 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 [Section 11, Rule 124].
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(6) Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices [Section 11, BP 129].
REMEDIAL LAW
(a) After the appeal from the lower court has been perfected; but (b) Before the CA judgment convicting him becomes final; (2) The motion shall conform to Section 4, Rule 121 [Section 14, Rule 124]; (3) If the CA grants a MNT, it may either: (a) Conduct the hearing and receive evidence; (b) Refer the trial to the court of origin [Section 15, Rule 124].
Certification or appeal of cases to the SC (1) If the CA finds that death penalty should be imposed, it shall render judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything. (2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals, the appeal shall be automatically included in the case certified for review in the SC (3) If the CA imposes reclusion perpetua, life imprisonment or a lesser penalty: (4) It shall render and enter judgment imposing such penalty. (5) Appeal here is not automatic. The accused has to file a notice of appeal with the CA [Section 113, Rule 124].
C.3.q. Reconsideration of CA judgment MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party. The mittimus shall be stayed during the MFR’s pendency. General rule: No party shall be allowed a second MFR of a judgment or final order [Section 16, Rule 124; Section 11, BP 129]. Exception: Where the first MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature.
Judgment transmitted and filed in the TC When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken [Section 17, Rule 124]. This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file.
Applicable civil procedure rules Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule (Section 18, Rule 124).
MNT during the pendency of appeal (1) Appellant may file MNT on the ground of newly discovered evidence material to his defense any time:
Procedure in the Supreme Court Uniform procedure
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General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA [Section 1, Rule 125].
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or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC (Section 3, Rule 122); (c) The penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC (People v. Carino (2002)).
Exception: The procedure changes when the Constitution or law so provides. What the SC may do on review In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, whether or not they were assigned as errors [People v. Olfindo (1924)]. It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed [Macali v. Revilla (1926)]. It may also assess and award civil indemnity [Quemel v. CA (1946)].
In these cases, the SC reviews not only errors of law but also the findings of fact by the TC.
Modes by which a case may reach the SC (1) Automatic review Automatic review is not a matter of right on the part of the accused, but a matter of law. It is available when: (a) The RTC judgment upon the accused imposes death penalty [Section 10, Rule 122]; (b) The RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review [Section 13, Rule 124].
(3) Petition for review on certiorari It is available when: (a) The constitutionality or validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question; (b) When validity of law is questioned by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law (Trinidad v. Sweeney (1904)); (c) When the jurisdiction of any inferior court is in issue; (d) When only an error or question of law is involved.
(2) Ordinary appeal It is available when: (a) The penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC (Section 3, Rule 122); (b) An accused was charged with two or more offenses committed on the same occasion
On decisions of the CA and the Sandiganbayan, as a rule, review here is limited to errors of law. General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available.
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Exception: In the following cases, certiorari is granted despite existence of the remedy of appeal: Where public welfare and advancement of public policy so dictate; Where the broader interests of justice so require; Where the orders complained of were found to be completely null and void; Where appeal was not considered as the appropriate remedy.
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and should dismiss appeal [Guico v. Mayuga (1963)]. Exceptions: (1) When the conclusion is a finding founded entirely on speculations/surmises/conjectures; (2) When the inference made is manifestly mistaken/absurd/impossible; (3) When there is GAD; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of facts are conflicting; (6) When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee [Napolis v. CA (1972)].
Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal (RA 296).
Erroneous mode of appeal In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant shall 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 SC en banc is equally divided in opinion or the necessary majority cannot be had on whether or not to acquit the appellant, the case shall again be deliberated upon. If no decision is reached after re-deliberation, the lower court’s judgment of conviction shall be reversed and the accused is acquitted. If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc [Section 3, Rule 125]. C.4.h. Composition of the SC (1) SC is composed of one Chief Justice and 14 Associate Justices. (2) SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members. (3) No doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may be modified/reversed except by the court sitting en banc [Section 4, Article VIII, Constitution].
Review of CA decisions The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases (Section 2, Rule 125). General rule: The appellate jurisdiction of the SC in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. The CA’s findings of fact are final. If an appeal in the SC involves questions of facts, the SC has no jurisdiction
Effect of appeal by any of several accused
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General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it [Salvatierra v. CA (1996)].
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an appeal therefrom by the prosecution would constitute double jeopardy [US v. Kilayko (1916)]. 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 (1960)]. An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted [People v. Paet (1956)]. The preclusion against appeal by the State from judgments or final orders having the effect of acquittal, applies even though accused did not raise question of jeopardy [People v. Ferrer (1956)].
Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal [People v. Gandia (2008)].
XV. SEARCH SEIZURE
The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from [Section 11, Rule 122].
AND
Nature of search warrant
Grounds for dismissal of appeal
Definition 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 (Section 1, Rule 126). If it is without the judge’s signature, it is fatally defective.
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 (1982)]. The prosecution cannot appeal from a judgment of acquittal
Nature A search warrant is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime [Malaloan v. CA (1994)]. It is not available to individuals in the course of civil proceedings. It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused.
Ratio: 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 (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,
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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 [Section 2, Article III, 1987 Constitution]. Under the exclusionary rule, any evidence obtained in violation of this is inadmissible for any purpose in any proceeding [Section 3, 2nd par., Article III, Constitution].
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General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. Exceptions: There are valid warrantless searches. Arrest and search warrants distinguished Search warrant Warrant of arrest Nature Order in writing in the name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court [Section 1, Rule 126]
The constitutional guarantee is not a blanket prohibition against all searches and seizures. It operates only against “unreasonable” searches and seizures. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question (Rodriguez v. Villamiel (1937)).
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
Determination of probable cause
Doctrine of Attenuation Under the doctrine of attenuation, despite the illegality in obtaining evidence, such evidence may be admissible if the connection between the evidence and the illegal method is sufficiently remote or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)]. Directed upon acts of the government, not private persons The constitutional protection is directed against the acts of the government and its agents, not private persons (People v. Marti (1991); People v. Bongcarawan (2002)). However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures.
The judge must personally examine the complainant and witnesses in the form of searching questions and answers [Section 5, Rule 126]
The judge does not have to personally examine the complainant and his witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor [AAA v. Carbonell (2007)]
The examination must be under oath or affirmation of the complainant and his witnesses.
Examination must be under oath.
Form It must particularly describe the place to be searched and
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(6) Violations of the Anti-Money Laundering Act of 2001; (7) Violations of the Tariff and Customs Code; and (8) Other relevant laws that may hereafter be enacted by Congress and included herein by the Supreme Court.
the things to be seized. When executed Generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night [Section 9, Rule 126]
May be made at any time of the day or night (Section 2, Rule 113)
Substance of application A search warrant shall not issue except: (1) Upon probable cause in connection with one specific offense; (2) To be determined personally by the judge; (3) After examination under oath or affirmation of the complainant and the witness he may produce; (4) Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines [Section 4, Rule 126]. 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 [Section 6, Rule 126]. Thus, the search warrant must be in writing and contain: (1) Name of person against whom it is directed; (2) Offense for which it was issued; (3) The place to be searched and (4) The description of the specific things to be seized; (5) A directive to law enforcement officers to search and seize; (6) And for them to bring in court the things seized; (7) Signature of the judge issuing it.
Period of validity Valid for 10 days [Section 9, Rule 126]
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Does not expire (no terminal life)
Application for search warrant; where filed It may be filed in any court within whose territorial jurisdiction the crime was committed. For compelling reasons, which must be stated in the application, it may also be filed: (1) If the place of the commission of the crime is known, any court within the judicial region where the crime was committed; (2) 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 [Section 2, Rule 126]. Under AM 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: (1) Heinous crimes; (2) Illegal gambling; (3) Illegal possession of firearms and ammunitions (4) Violations of the Comprehensive Dangerous Drugs Act of 2000; (5) Violations of the Intellectual Property Code;
Validity of the search warrant The search warrant is valid for 10 days from its date. Thereafter, it shall be void [Section 10, Rule 126]. 367
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The lifetime of the search warrant also ends when a return has already been made [Mustang Lumber v. CA (1996)].
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Search in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality [Section 8, Rule 126]. Time of making search The search shall be made at day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night [Section 9, Rule 126]. A search warrant violates Section 9, Rule 126 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the search warrant [Asian Surety v. Herrera (1973)].
Service of the search warrant Right to break door or window to effect search The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein [Section 7, Rule 126]. Knock and announce principle Generally, officers executing a search must do the following acts: (1) Announce their presence; (2) Identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched; (3) Show to them the search warrant; and (4) Explain the warrant in a language or dialect known and understood by them.
Post service Receipt of property seized Receipt is given differently depending on the presence of the lawful occupant. Thus: (1) If the lawful occupant is present, the officer seizing the property under the search warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made. (2) If the lawful occupant is not present, the officer seizing the property under the search warrant must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property [Section 11, Rule 126].
When unannounced intrusion permissible (1) Person in the premises refuses to open it upon demand; (2) Person in the premises already knew of the identity and authority of the officers; (3) When the officers have an honest belief that there is an imminent danger to life and limb; (4) When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent.
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Note: Probable cause to arrest does not necessarily involve a probable cause to search and vice-versa.
Delivery and inventory of property The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. Ten days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether Section 11, Rule 126, on giving or receipts, has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that delivery has been complied with. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge [Section 12, Rule 126]. Goods seized remain under the court’s custody and control until the institution of the appropriate criminal action with the proper court [Tenorio v. CA (2003)].
Probable cause justifying warrantless arrest and warrantless search This implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction. It is not determined by a fixed formula but is resolved according to the facts of each case. Personal examination by judge of the applicant and witnesses Aside from the requirements mandated by Section 4, Rule 126, 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 [Section 5, Rule 126]: (1) The examination must be personally conducted by the judge; (2) The examination must be in the form of searching questions and answers; (3) The complainant and the witnesses shall be examined on those facts personally known to them; (4) The statements must be in writing and under oath; and (5) The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record.
Probable cause Warrants issued upon probable cause Probable cause means 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 [Santos v. Pryce Gases Inc. (2007)]. 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 (1986)].
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 (1968)]. In search cases, the application must be supported by substantial evidence: (1) That the items sought are in fact seizable by virtue of being connected with criminal activity; and
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(2) That the items will be found in the place to be searched [People v. Tuan (2010)].
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reasonable efforts, ascertain and identify the place intended [People v. Veloso (1925)]. An apparent typographical error will not necessarily invalidate the search warrant, as long as the application contains the correct address [Burgos v. Chief of Staff (1984)].
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 (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 (2007)) A warrant not based on personal knowledge is void.
Particularity of things to be seized The scope of the search warrant is limited to personal property only. It does not issue for seizure of immovable properties. General rule: Things to be seized must be described particularly. General search warrants are not allowed. Otherwise, the search and seizure of the items in the implementation of such search warrant is illegal and the items seized are inadmissible in evidence [Section 2, Article III, Constitution]. SWs authorizing the seizure of books of accounts and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law [Stonehill v. Diokno (1967)]. Likewise, a description of things to be seized as “subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a definite guideline to the executing officers (Dizon v. Castro (1985)). 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 (1993)).
Examination under oath The judge must examine under oath or affirmation the complainant and the witness he may produce. Oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. The oath required must refer to the truth of facts within the personal knowledge of the petitioner or his witnesses [Alvarez v. CFI (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 (1989)]. 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.
Particularity of place to be searched Description of place to be searched is sufficient if the officer with the search warrant can, with
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not required that a technical description be given, for this would mean that no search warrant could issue (People v. Rubio (1932)). The general description of the documents listed in the search warrant does not render the it void if it is severable, and those items not particularly described may be cut off without destroying the whole (Uy v. BIR (2001)).
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have probable cause to make the arrest at the outset of the search [Riano (2011)]. 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 (1998)]. The search is confined to his person, but as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. The extent and reasonableness of the search must be decided on its own facts and circumstances [Nolasco v. Paño (1985)]. 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 (2004)].
Personal property to be seized What may be seized (1) Personal property subject of the offense; (2) Personal property stolen/embezzled and other proceeds/fruits of the offense; (3) Personal property used or intended to be used as the means of committing an offense (Section 3, Rule 126).
(2) Consented search Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that: (a) The right exists; (b) The person involved had knowledge, either actual or constructive, of the existence of such right; and (c) The said person had an actual intention to relinquish the right [People v. Nuevas (2007)].
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 (1984)). Exceptions to search warrant requirement (1) Search incidental to lawful arrest In a search incidental to an arrest, even without a warrant, the person arrested may be searched for: (a) Dangerous weapons; (b) Anything which may have been used in the commission of an offense; or (c) Anything which may constitute proof in the commission of the offense (Section 13, Rule 126).
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 (2007)]. A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law (People v. Nuevas (2007)). Consented search is reasonable only if kept within the bounds of the actual consent.
The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest as if the police
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A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto.
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(c) Officer flashes a light therein without opening car’s doors; (d) Occupants not subjected to a physical search; (e) Inspection is limited to usual search or inspection; or (f) Routine check is conducted in a fixed area [People v. CA (2002)].
(3) Search of moving vehicle Ratio: 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 (2007)].
(5) Plain view situation Requisites: (a) A 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; (b) Evidence was inadvertently discovered by the police who have a right to be where they are; (c) Evidence must be immediately apparently illegal (i.e., drug paraphernalia); (d) Plain view justified mere seizure of evidence without further search [People v. Valdez (1999); People v. Salanguit (2001)].
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. The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of search warrant [Roldan v. Arca (1975)]. Nonetheless, in all cases falling under this category, there must be a showing of a probable cause of a violation of the law [Caroll v. US (1924)].
Limitations: (a) It may not be used to launch unbridled searches and indiscriminate seizures. (b) It does not extend to a general exploratory search made solely to find evidence of defendant’s guilt (People v. Musa (1993)).
(4) Checkpoints; body checks in airport Searches conducted in checkpoints are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists [People v. Vinecario (2004)]. Routine inspections are not regarded as violative of an individual’s right against unreasonable search: (a) Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (b) Officer simply looks into a vehicle;
The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Even if an object is in plain view, before it can be seized without a search warrant, its incriminating nature must first be apparent. Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be
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seized even if the item is not connected with their purpose in entering.
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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.
(6) Stop and frisk situation Stop and frisk is a limited protective search of outer clothing for weapon [Malacat v. CA (1997)]. Where a police officer observes unusual conduct, which leads him reasonably to 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. Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him [Terry v. Ohio (1968)]. Under this theory, probable cause is not required to conduct a “stop and frisk” but mere suspicion or hunch will not validate a “stop and frisk.” The test is whether or not there is a reasonable belief based on genuine reason and in the light of the officer’s experience and the surrounding circumstances, that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous.
General rule: The Tariff and Customs Code does not require a warrant for such searches. Exception: In the search of a dwelling house, a search warrant is required. (8) Other exceptions (a) 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. Also, the surveillance team before the raid was fired upon by the people inside. The raiding team had no opportunity to apply for warrant as the court then was closed [People v. de Gracia (1994)].
(b) Buy-bust operation This is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense. There is no need for a search warrant (or warrant of arrest) because the accused is caught in flagrante delicto.
(7) Enforcement of customs law For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure [General Travel Services v. David (1966)]. The Tariff Code authorizes customs officers to: (a) Enter, pass through or search any land, enclosure, warehouse; (b) Inspect/search/examine any vessel or aircraft and any trunk/package/box/envelope or any person
(c) Private searches In one case, the evidence was obtained by a private person acting in a private capacity, while performing company standard operating procedures and without state participation and intervention. It was held that the constitutional rights cannot be invoked when there is no government interference (People v. Marti (1999)). Remedies from unlawful search and seizure 373
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another court, the motion may be filed in either court [People v. CA (1999)].
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 (1967); Santos v. Pryce Gases, Inc. (2007)].
Grounds The following may be raised in the MTQ: (1) Absence of probable cause at the time of the issuance of the search warrant; (2) Non-compliance with substantive and procedural requisites, such as: (a) No personal examination by the judge; (b) More than one specific offense; (c) No particular description (Bache & Co. v. Ruiz (1971)).
Remedies 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 (1921)].
These may also be raised in the criminal action as matters of defense (DOH v. Sy Chi Siong (1989)). 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 of the personal property seized if the same is offered therein as evidence [Regalado, Remedial Law Compendium (2010)]. The MTQ and Motion to Suppress Evidence are alternative, not cumulative remedies.
File criminal action against officer A public officer/employee who procures a search warrant without just cause is criminally liable under Article 129, RPC, on search warrants maliciously obtained and abuse in the service of those legally obtained. File a motion to quash the illegal warrant This remedy is employed if search is not yet conducted. Who may file (1) Person injured; (2) Person searched; (3) Owner of the property.
File a motion to return things seized This is the remedy used if the search was already conducted and goods were seized as a consequence thereof. 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.
Where to file General rule: The motion must be filed before the sala of the judge who issued it. Only the court that issued the SW may order revocation of search warrant or release of things seized (Pagkalinawan v. Gomez (1967)).
General rule: Goods seized by virtue of an illegal warrant must be returned [Castro v. Pabalan (1976)].
Exception: Where the search is issued by one court and the criminal action based on the results of the search is afterwards filed in
Exception: If possession of the things seized is prohibited by law, they should not be returned. 374
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Where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a search warrant although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case [Yu v. Honrado (1980)].
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It may also result in civil liability for: (1) Violation of rights and liberties [Article 32 (9), Civil Code]; (2) Malicious prosecution and acts referred to Article 32 [Article 2218, Civil Code].
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 (1994)].
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.
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 (1938)].
Civil and criminal liability The following offenses may result from unreasonable search and seizure: (1) Violation of domicile [Article 128, RPC]; (2) SW maliciously obtained [Article 129, RPC]; (3) Searching domicile without witnesses [Article 130, RPC]; (4) Unjust interlocutory order [Article 206, RPC].
Requisites: (1) It must appear that the right exists; (2) That the person involved had knowledge, (actual or constructive) of the existence of such right; (3) That the person had an actual intention to relinquish the right.
The public officer or employee may be held liable for: (1) Entering without authority; against the will; refuses to leave; (2) A search warrant procured without just cause or if with just cause, exceeds his authority or uses unnecessary severity of force; (3) Conducting the search without the required witnesses.
XIV. PROVISIONAL REMEDIES 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 [Section 1, Rule 127]. Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but
The judge may be held liable for: (1) Knowingly rendering an unjust interlocutory order; (2) Inexcusable negligence or ignorance. 375
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may be applied for in the separate civil action. [Regalado (2010)]
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recovered from the accused in the following cases: (e) When the accused is about to abscond from the Philippines (f) 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 (g) When the accused has concealed, removed or disposed of his property, or is about to do so (h) When the accused resides outside the Philippines [Section 2, 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 go into the merits of the case [Ramcar, Inc v. de Leon (1947)]. Provisional remedies are not available when: (1) Offended party has waived the civil claim; (2) Offended party has reserved the civil claim; (3) Offended party has already instituted a separate civil action; (4) Criminal action carries with it no civil liability. Kinds of provisional remedies In general Reference to provisional remedies in Section 1, Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendent lite may be availed of [Riano, Criminal Procedure (2011)]. However, only preliminary attachment is provided for under the same rule. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case [Section 11(b), Rule 119].
Issuance and implementation The writ may be issued ex parte before acquisition of jurisdiction over the accused. However, it may be enforced only after acquisition of jurisdiction over the person of the accused [Gonzalez v. State Properties (2001)]. 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 (1989)].
Preliminary attachment When proper When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be
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I. General Principles
to the technical rules of procedure and evidence applicable to judicial proceedings [Dela Cruz v. Malunao (A.M. No. P-11-3019, March 20, 2012)]
A. Concept of Evidence B. Scope of the Rules of Evidence C. Evidence in Civil Cases vs. Evidence in Criminal Cases D. Proof Versus Evidence E. Factum Probans Versus Factum Probandum F. Admissibility of Evidence G. Burden of Proof and Burden of Evidence H. Presumptions I. Liberal Construction of the Rules of Evidence J. Quantum of Evidence (Weight And Sufficiency of Evidence)
Note: There is a different rule for Rules on Electronic Evidence since it covers quasi-judicial and administrative bodies [Sec. 2, Rule 1, Rules on Electronic Evidence]
C. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES In Civil Cases
In Criminal Cases
Preponderance of Proof beyond reasonable evidence doubt [Sec. 2, Rule 133] [Sec. 1, Rule 133]
A. CONCEPT OF EVIDENCE
Offer of compromise NOT an admission of any liability [Sec. 27, Rule 130]
The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [Sec. 1, Rule 128]
B. SCOPE OF THE RULES EVIDENCE [SEC. 2, RULE 128]
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OF
General rule: Principle of uniformity The rules of evidence shall be the same in all courts and in all trials and hearings. Exceptions: If otherwise provided by: (1) Law [e.g. 1987 Constitution, statutes]; (2) Rules of Court. Applicability The rules of evidence are specifically applicable only in judicial proceedings. [Sec. 1, Rule 128] In quasi-judicial proceedings, the same apply by analogy or suppletorily AND whenever practicable and convenient [Sec. 4, Rule 1], except in cases where the governing law in the particular proceeding specifically adopts the rules of evidence in the Rules of Court. [Regalado]
EXCEPT for quasi-offenses or those allowed by law to be compromised, offer of compromise by the accused may be received in evidence as an implied admission of guilt. Exceptions: (1) Sec 204, RA 8424 Tax Reform Act of 1997 which provides that payment of any internal revenue tax and all criminal violations may be compromised, except those already filed in Court and those involving fraud. (2) Rape cases, through marriage (Art. 344, RPC) A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer [Sec. 27, Rule 130]
Administrative investigations shall be conducted without necessarily adhering strictly 378
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Presumption of Presumption of innocence a innocence does constitutional guarantee on NOT apply the accused [Sec. 14, Art. III]
Other Classifications Cumulative and Corroborative Evidence Cumulative Corroborative Evidence Evidence
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is NOT admissible as proof of criminal or civil liability for the injury. [Sec. 27, Rule 130]
Evidence of the same Additional evidence of a kind and to the same different character to the state of facts same point Prima Facie and Conclusive Evidence
D. PROOF VERSUS EVIDENCE Proof
Evidence
Result or effect Mode and manner of proving of evidence competent facts in judicial [Regalado] proceedings [Bustos v. Lucero, G.R. No. L-2068, October 20, 1948]
Prima Facie
Conclusive
Standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed
Class of evidence which the law does not allow to be contradicted
Primary and Secondary Evidence Primary
E. FACTUM PROBANS FACTUM PROBANDUM Facrum Probans Facts or evidencing proposition
VERSUS
Facrum Probandum
material The proposition to be the established
The evidentiary fact The ultimate tending to prove the fact sought to in issue established
Secondary
Best evidence
Substitutionary evidence
That which the law regards as affording the greatest certainty of the fact in question
Inferior to primary; permitted only when the best evidence is not available
F. ADMISSIBILITY OF EVIDENCE Requisites for admissibility of evidence Evidence is admissible when it is: (1) Relevant to the issue; and (2) Competent i.e. not excluded by law or the ROC. [Sec. 3, Rule 128]
fact be
3 classes of evidence according to form (1) Object- those addressed to the senses of the court. [Sec. 1, Rule 130] (2) Documentary - consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Sec. 2, Rule 130] (3) Testimonial - evidence elicited from the mouth of a witness [Riano, citing Black’s Law Dictionary]
When determined Admissibility is determined at the time the evidence is offered to the court [Sec 35, Rule 132] Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility have become apparent, otherwise the objection shall be considered waived. [Abrenica v. Gonda, 94 Phil. 739] 379
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In case of: Testimonial evidence - objection to the qualification of the witness must be made at the time he is called to the stand and if the witness is qualified, objections should be raised when the objectionable question is asked or after the answer was given if the objectionable feature became apparent by reason of such answer. Object or real evidence - objection must be made either at the time it is presented in an ocular inspection or demonstration or when it is formally offered. Documentary evidence – objection must be made at the time it is formally offered. [Sec. 35 to 37, Rule 132]
REMEDIAL LAW probability or improbability of the fact in dispute. They are evidence of relevant collateral facts. [Regalado]
Competence Evidence is competent when it is not be excluded by (i) law or (ii) the ROC [Sec. 3, Rule 128] Determined by the prevailing exclusionary rules of evidence [Regalado] Exclusionary rules of evidence by law are either constitutional or statutory. o Constitutional exclusionary rules Unreasonable searches and seizures [Sec. 2, Art. III]; privacy of communication and correspondence [Sec. 3, Art. III]; right to counsel, prohibition on torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition on secret detention places, solitary, incommunicado. [Sec. 12, Art. III]; right against self-incrimination [Sec. 17, Art. III] o Statutory exclusionary rules 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]; 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 judicial / quasi-judicial / legislative/ administrative hearing or investigation. [Secs. 1 and 4, R.A. 4200 (Wire-Tapping Act)] Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence.
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] Determinable by the rules of logic and human experience. Collateral matters Matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue [Regalado] General Rule: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128] Exception: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. [Sec. 4, Rule 128] NOTE: What is prohibited by the Rules is not evidence of all collateral matters, but evidence of irrelevant collateral facts. [Regalado] Circumstantial evidence is the evidence of collateral facts or circumstances from which an inference may be drawn as to the 380
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Doctrines of admissibility Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence shall 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. [Regalado]
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Direct v. Circumstantial
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.
Direct Evidence
Circumstantial
Proves the fact in dispute without the aid of any inference or presumption
Proof of a fact/s from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence
Positive Evidence v. Negative Evidence Positive Evidence
Negative Evidence
Witness affirms Witness states he/she did that a fact did or not see or know of the did not occur occurrence of a fact Competence v. Credibility
This was applied in the case of People v. Yatco [G.R. No. L-9181, November 28, 1955] subject to the qualification that there should be no bad faith on the part of the proponent. The qualification appears to avoid unfair surprises. [Regalado]
Competence
Credibility
Eligibility of evidence to Worthiness of belief; be received as such “believability”
G. BURDEN OF PROOF AND BURDEN OF EVIDENCE
Curative admissibility Where the court has admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf. [Regalado]
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law. [Sec. 1, Rule 131]
What determines the rule of curative admissibility: (1) Whether the incompetent evidence was seasonably objected to - Lack of objection to incompetent evidence constitutes waiver on the part of the party against whom it was introduced but the opposing party is not deprived of his right to similar rebutting evidence; and (2) Whether the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted [Regalado]
In civil cases, the quantum of evidence required to sustain the proponent of an issue is preponderance of evidence. The burden of proof is on the party who would be defeated if no evidence were given in either side, the plaintiff with respect to his complaint, the defendant with respect to his counterclaim, and the crossclaimant, with respect to his cross-claim. In criminal cases: For the issuance of warrant of arrest evidence of probable cause that there exist 381
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a reasonable ground that the accused has committed an offense [Algas v. Garrido, A.M. No. 289-MJ, November 15, 1974] To warrant the filing of an information prima facie evidence To sustain a conviction - evidence of guilt beyond reasonable doubt.
Equipoise Rule or Equiponderance 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 proof. [Rivera v. CA, GR No. 115625, Jan. 23, 1998; Marubeni v. Lirag, GR No. 130998, Aug. 10, 2001]
The burden of proof rests on the prosecution.
In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. [Malana v. People, G.R. No. 173612, August 27, 2008]
A party will have the burden of evidence only (i.e., will have to be a proponent) if there is any factum probandum (whether evidentiary or otherwise) that the adverse party has already established (whether by law, rule, or by virtue of evidence that he has presented) that he (the potential proponent) has to overcome. That factum probandum may, but does not have to be, nor is limited to a "prima facie presumption." Likewise, a party will not have any burden of evidence at all if the adverse party has not established any factum probandum in the first place (Prof. Avena).
H. PRESUMPTIONS
In both civil and criminal cases, the burden of evidence lies with the party who asserts an affirmative allegation. [Regalado] Burden of Proof v. Burden of Evidence Burden of Burden of Evidence Proof
Conclusive
Disputable
Inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong [Datalift Movers v. Belgravia Realty, G.R. No. 144268, August 30, 2006]
Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. [Sec. 3, Rule 131]
Conclusive Presumptions under the Rules [Sec. 2, Rule 131]: (1) A party is not permitted falsify a thing if: (a) By his own declaration, act or omission; (b) He intentionally and deliberately led another to believe a particular thing is true; (c) To act upon such belief; and (d) The litigation arises out of such declaration act or omission.
Does not shift Shifts from party to party throughout depending upon the exigencies the trial of the case in the course of the trial” Generally determined by the pleadings filed by the party
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Generally determined by the developments at the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the fact alleged (presumptions, judicial notice and admissions)
(2) A 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. 382
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These conclusive presumptions are based upon the doctrine of estoppel in pais under the Civil Code. [Regalado]
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(16) Private transactions have been fair and regular; (17) Ordinary course of business has been followed; (18) There was a sufficient consideration for a contract; (19) Negotiable instrument was given or indorsed for a sufficient consideration; (20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (21) A writing is truly dated; (22) Letter duly directed and mailed was received in the regular course of the mail;
Disputable Presumptions under the Rules [Sec. 3, Rule 131] (1) Person is innocent of a crime or wrong; (2) Unlawful act is done with an unlawful intent; (3) Person intends the ordinary consequences of his voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse if produced; (6) Money paid by one to another was due to the latter; (7) Thing delivered by one to another belonged to the latter; (8) Obligation delivered up to the debtor has been paid; (9) Prior rents or installments had been paid when a receipt for the later ones is produced; (10) 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; (11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; (12) Person acting in public office was regularly appointed or elected to it; (13) Official duty has been regularly performed; (14) A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them;
(23)Presumptions concerning absence: (a) Ordinary but continued absence of: i. 7 years, it being unknown WON the absentee still lives, he is considered dead for all purposes, except for those of succession ii. 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 succession iii. 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 (b) Qualified absence i. 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 ii. A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years 383
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iii. A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years
After 180 days following the celebration of the subsequent marriage
(24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact; (25) Things have happened according to the ordinary course of nature and ordinary nature habits of life; (26) Persons acting as co-partners have entered into a contract of co-partnership; (27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (28) 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; (29) 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; (30) 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 Presumption Born Before 180 days after the solemnization of the subsequent marriage
REMEDIAL LAW Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.
(31) A thing once proved to exist continues as long as is usual with things of the nature; (32)The law has been obeyed; (33)A printed/published book, purporting to be printed/published by public authority, was so printed/published; (34) 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; (35) 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; (36) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same calamity, (b) and it is not shown who died first, (c) and there are no particular circumstances from which it can be inferred, (d) the survivorship is determined from the probabilities resulting from the strength and the age of the sexes: Person presumed Situation to have survived
Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage
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Both < 15 y/o
The older
Both < 60 y/o
The younger
One < 15 y/o,
The one < 15
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It does not mean such a degree of proof excluding possibility of error and producing absolute certainty. Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. [Sec. 2, Rule 133]
the other > 60 y/o Both > 15 and < 60 y/o, of The male different sexes Both > 15 and <60 y/o, of The older the same sex One < 15 or > 60 y/o, and The one between the other between those those ages ages
The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the accused to prove his/her innocence. [Boac v People, G.R. No. 180597, November 7, 2008]
(37) 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. In the absence of proof, they shall be considered to have died at the same time.
The prosecution must not rely on the weakness of the evidence of the defense. [Ubales v People, G.R. No. 175692, October 29, 2008; People v. Hu, G.R. No. 182232, October 6, 2008] Preponderance of evidence Applicable quantum of evidence in civil cases [Sec. 1, Rule 133]
No presumption of legitimacy or illegitimacy There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of marriage or the separation of spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. [Sec. 4, Rule 131]
Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMCUrban Property Developer, Inc., G.R. No. 155110, March 31, 2005; Bank of the Philippine Islands v. Reyes, G.R. No. 157177, February 11, 2008]
I. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE
In determining preponderance of evidence, the court may consider: (1) All the facts and circumstances of the case; (2) The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; (3) Number of witnesses (although preponderance is not necessarily with the number of witnesses). [Sec. 1, Rule 133]
Like all other provisions under the ROC, rules of evidence must be liberally construed. [Sec. 6, Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. [Sec. 2, Rule 2, Rules on Electronic Evidence]
J. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) Proof beyond reasonable doubt Applicable quantum of evidence in criminal cases. The accused is entitled to an acquittal if his guilt is not shown beyond reasonable doubt. [Sec. 2, Rule 133]
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Substantial evidence Degree of evidence required in cases filed before administrative or quasi-judicial bodies. [Sec. 5, Rule 133]
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further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed. [Republic v. Sandiganbayan, G.R. No. 166859, April 12, 2011]
Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. [Sec. 5, Rule 133]
B. MATTERS OF JUDICIAL NOTICE 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 Philippines; (7) LaWs of nature; (8) Measure of time; and (9) Geographical divisions. [Sec. 1, Rule 129]
Clear and convincing evidence The standard of proof required in granting or denying bail in extradition cases is “clear and convining evidence” that the potential extradee is not a flight risk and will abide with all the orders and process of the extradition court. [Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19, 2007] Intermediate in character – lower than proof beyond reasonable doubt, but higher than preponderance of evidence
II. Judicial Notice and Judicial Admissions
Note: It would be error for the court not to take judicial notice of an amendment to the Rules of Court [Riano citing Siena Realty v. Gal-lang (428 SCRA 422)]
A. What Need Not be Proved B. Matters of Judicial Notice C. Judicial Admissions D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance
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]
A. WHAT NEED NOT BE PROVED (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions
Requisites: For the court to take judicial notice, three material requisites should be present: (a) The matter must be one of common and general knowledge; (b) It must be well and authoritatively settled and not doubtful or uncertain;
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 386
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(c) It must be known to be within the limits of the jurisdiction of the court. [State Prosecutors v, Muro, A.M. No. RTJ-92-876, September 19, 1994]
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General Rule: Courts are not authorized to take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo (G.R. No. L-17885 June 30, 1965)]
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. Judicial cognizance is taken only of those matters which are "commonly" known. [State Prosecutors v, Muro (supra)]
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. [Tabuena v. CA, G.R. No. 85423, May 6, 1991]
When Hearing Necessary During the trial The court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial Before judgment or on appeal The proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. [Sec. 3, Rule 129]
With Respect to Ordinances Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit.
With Respect to Court’s Own Acts and Records A court MAY 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 Court of Appeals, G.R. No. 119288, August 18, 1997]
Regional Trial Courts must take judicial notice of such ordinances only: (a) When required to do so by statute e.g. in Manila as required by the city charter [City of Manila v. Garcia, et al., L-26053, February 21, 1967]; and (b) In a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case. [U.S. v. Blanco, 37 Phil. 126; U.S. v. Hernandez, 31 Phil. 342]
With Respect to Records of Other Cases
Note: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It is either 387
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(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. [Riano]
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like immaterial allegations (Sec. 11, Rule 8), conclusions, non-ultimate facts in the pleading (Sec. 1, Rule 8) as well as the amount of liquidated damages (Sec. 11, Rule 8). [Riano] Although an admission made during the pretrial is deemed to have been made in the course of the judicial proceeding and is necessarily a judicial admission, an admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him. To be admissible, it must comply with the conditions set forth under Sec. 2, Rule 118: (1) Reduced in writing, and (2) Signed by the accused and counsel. [Riano]
C. JUDICIAL ADMISSIONS To be a judicial admission, the same: (1) Must be made by a party to the case; (2) Must be made in the course of the proceedings in the same case; and Note: As regards judicial admissions made in the trial of another case, the same would be considered an extrajudicial admission for the purpose of the other proceeding where such admission is offered. [Riano] (3) May be verbal or written. [Sec. 4, Rule 129]
Effect of judicial admissions It does NOT require proof. [Sec. 4, Rule 129] General rule: Judicial admissions CANNOT be contradicted. [Sec. 4, Rule 129] An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extra-judicial admission requiring a formal offer to be admissible. [Torres v CA, G.R. No. L-37420, July 31, 1984].
Judicial admissions may be— (1) Made in: (a) Pleadings filed by the parties (including admissions made in pleadings which are withdrawn/superseded by an amended pleading [Regalado]) (b) Stipulations of facts by the parties in a pre-trial conference [People v. Hernandez, G.R. No. 108028, July 30, 1996] (c) The course of the trial either by verbal or written manifestations/stipulations (d) Other stages of judicial proceedings
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 March 31, 2006] 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) No such admission was made. [Sec. 4, Rule 129]
(2) Obtained through: (a) Depositions (b) Written interrogatories (c) Request for admissions [Regalado; See also Civil Procedure Rules] 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
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 388
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to appear by the other party. [Phil. Health Care Providers v. Estrada, G.R. No. 171052, January 28, 2008 citing Atillo, III v. CA, 1997]
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admissible as tending to prove the truth of a matter stated therein if: (1) the court takes judicial notice, 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 profession or calling as expert in the subject.
D. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Foreign Laws General Rule: Courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact. [Yao-Kee v. SyGonzales, G.R. No. L-55960, Nov. 24, 1988]
Doctrine of Processual Presumption In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. [Northwest Orient Airlines v Court of Appeals (G.R. No. 112573 February 9, 1995)]
Written foreign law may be proved by: (1) An official publication; or (2) A duly attested and authenticated copy.
The court may take judicial notice of the foreign law— (1) Where the foreign law is within the actual knowledge of the court such as when the law is well and generally known such as when they are well and generally known or they had been ruled upon in other cases before it and none of the parties claim otherwise [PCIB v Escolin (G.R. L-27860 and L-27896 March 29,1974)] (2) When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [Sec. 46, Rule 130]
Attested copy (1) Attestation must be made by the officer having legal custody of the record or by his deputy. (Sec. 24, Rule 132) (2) It must state, in substance, that the copy is a correct copy of the original, or a specific part thereof (Sec. 25, Rule 132) (3) It must be under the official seal of the attesting officer, if there be any, or if he be a clerk of court having a seal, under the seal of such court. (Sec. 25, Rule 132) (4) It must be accompanied by a certificate that attesting officer has custody (Sec. 24, Rule 132) (a) The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.
Law of Nations The Philippines adopts the generally accepted principles of international law as part of the law of the land. [Sec. 2, Art. II, 1987 Constitution] Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under Sec. 1 of Rule 129. Municipal Ordinances Municipal trial courts are required to take judicial notice of the ordinances of the
Unwritten foreign law may be proved through Sec. 46, Rule 130— Published treatise, periodical or pamphlet on a subject of history, law, science or art is 389
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municipality or city wherein they sit. [US v. Blanco (37 Phil 126 November 9, 1917)]
(4) Object must be formally offered [Sec. 34, Rule 132]
However, in the case of the RTC, they must take such judicial notice only (a) when required to do so by statute (City of Manila v. Garcia (1967)); All courts sitting in the City of Manila shall take judicial notice of the ordinances by the Municipal Board. [Sec. 50, RA 409 – Revised Charter of the City of Manila] (b) in a case of appeal before them wherein the inferior court took judicial notice of an ordinance involved in said case [US v. Blanco (supra)] [Regalado]
Requisites for the admissibility of tape recording: (1) A showing that the recording was capable of taking testimony (2) A showing that the operator of the recording device is competent (3) Establishment of the authenticity and correctness of recording (4) A showing that no changes, deletions, or additions have been made on the recordings (5) A showing of the manner of preservation of the recording (6) Identification of speakers (7) A showing that the testimony elicited was voluntarily made without any kind of inducement. [Torralba v. People (G.R. No. 153699, August 22, 2005)]
III. Object (Real) Evidence A. Nature of Object Evidence B. Requisites for Admissibility C. Categories of Object Evidence D. Demonstrative Evidence E. View of an Object or Scene F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 G. Rule on DNA Evidence (A.M. No. 06-115-SC)
A.
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] Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if— (1) Exhibition is contrary to public policy, morals or decency; (2) It would result in delays, inconvenience, unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera (47 Phil. 645 March 17, 1925)] (3) Evidence would be confusing or misleading. (4) The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary
NATURE OF OBJECT EVIDENCE
Those addressed to the senses of the court [Sec. 1, Rule 130] The right against self-incrimination CANNOT be invoked against object evidence. [People v. Malimit, G.R. No. 109775 November 14, 1996]
B. REQUISITES ADMISSIBILITY
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FOR
Basic Requisites for Admissibility (Riano) (1) Evidence must be relevant; (2) Evidence must be authenticated; (3) Authentication must be made by a competent witness; and
Competent Evidence be Authenticated
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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.
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Authentication be Made by Competent Witness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation.
Ephemeral electronic communications Refers to 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]
A witness can testify to those facts which he/she knows of his/her personal knowledge; that is, which are derived from his/her own perception. [Sec. 36, Rule 130]
The “Thing Itself” Unique Objects Objects that have readily identifiable marks, e.g., a caliber 45 pistol by virtue of its serial number
How Proven (1) by the testimony of a person who was a party to the same; (2) by the testimony of a person who has personal knowledge thereof; or (3) in the absence or unavailability of such witnesses, by other competent evidence [Sec. 2, Rule 11, Rules on Electronic Evidence]
Objects Made Unique Objects with no unique characteristic but are made readily identifiable, e.g., a typical kitchen knife with identifying marks placed on it by the witness
When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [Sec. 2, Rule 11, Rules on Electronic Evidence].
C. CATEGORIES EVIDENCE
OF
OBJECT
E. VIEW OF AN OBJECT OR SCENE
Non-Unique Objects Objects with no identifying marks and cannot be marked, e.g., narcotic substances
D.
When an object is relevant to the fact in issue, it may be viewed by the court. [Sec. 1, Rule 130] Court has an inherent power to order view when there is a need to do so. [Riano citing Sec. 1, Rule 130]
DEMONSTRATIVE EVIDENCE
Not the actual thing, rather it represents or “demonstrates” the real thing, E.g., photographs, motion pictures and recordings [Riano] Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: (1) shown, presented or displayed to the court, and (2) identified, explained or authenticated
Inspection may be made inside or outside the courtroom. An inspection outside should be made in the presence of the parties or at least with the previous notice to them. [Riano citing Moran]
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F. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
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Note: A unique characteristic of narcotic substances is that they are not readily identifiable. Hence, in authenticating the same, a more stringent standard than that applied to readily identifiable objects is necessary. This exacting standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with [Lopez v. People (G.R. No. 172953 April 30, 2008)]
Meaning of chain of custody A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence [Lopez v People (G.R. No. 172953 April 30, 2008)]
G. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)
In Relation to Drug Cases The apprehending team having initial custody and control of the drugs shall: (1) physically inventory, and (2) photograph the same, (3) in the presence of (a) accused or the person/s from whom the drugs were seized, or his/her representative or counsel (b) representative from the media and the Department of Justice (c) any elected public official (4) who shall be required to sign the copies of the inventory and be given a copy thereof. [Sec. 21, Art. II, R.A. 9165 or the Comprehensive Dangerous Drugs Act of 2002]
DNA evidence The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3(c)] Application for DNA testing order With prior court order (1) The appropriate court may, at any time, either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing. (2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) 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; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and
Non-compliance with sec. 21 of R.A. 9165, particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. The issue if there is non-compliance with the law is not admissibility, but of weight – evidentiary merit or probative value. [People v Del Monte (G.R. No. 179940 April 23, 2008)] Purpose of Establishing Chain of Custody: To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic. [Riano] 392
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(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. 4]
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(2) DNA testing methodology (a) Procedure followed in analyzing the samples (b) Advantages and disadvantages of the procedure (c) Compliance with scientifically valid standards in conducting the tests
Without prior court order (1) This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4] (2) Post-conviction DNA testing [Sec. 6]
(3) Forensic DNA laboratory (a) Accreditation by any reputable standards-setting institution (b) Qualification of the analyst who conducted the tests (c) If not accredited, relevant experience of the laboratory in forensic work and its credibility
Post-conviction DNA testing How Obtained (1) Without need of prior court order (2) Available to the prosecution or any person convicted by final and executory judgment Requisites (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal or modification of the judgment of conviction. [Sec. 6]
(4) Reliability of the testing result [Sec. 7] Vallejo Standard In assessing the probative value of DNA evidence, courts should consider the following: (a) How the samples were collected (b) How they were handled (c) The possibility of contamination of the samples (d) The procedure followed in analyzing the samples, whether the proper standards and procedures were followed (e) Qualification of the analyst who conducted the tests [People v. Vallejo (May 9, 2002)]
Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10] General Rule: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10]
Factors that Determine the Reliability of the DNA Testing Methodology (1) Falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested (2) Subject to peer review and publication of the principles or methods (3) General acceptance of the principles or methods by the scientific community (4) Existence and maintenance of standards and controls to ensure the correctness of data generated
Exception: If continued detention is justified for a lawful cause. [Sec. 10] Factors in Assessing the Probative Value of DNA Evidence (1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination
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(5) Existence of an appropriate reference population database (6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles; and (7) Significance and limitation of statistical calculations used in comparing DNA profiles (Sec. 5)
When applicable (General Rule) Only when the subject of inquiry is the contents of a document [Rule 130, Sec. 3] The best evidence rule does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. [People v Tandoy (G.R. No. 80505 December 4, 1990)]
IV. Documentary Evidence A. Meaning of Documentary Evidence B. Requisites for Admissibility C. Best Evidence Rule D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC) E. Parol Evidence Rule F. Authentication and Proof of Documents
A. MEANING EVIDENCE
OF
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Affidavits and depositions are considered as not being the best evidence, hence not admissible if the affiants or deponents are available as witnesses. [Regalado citing 4 Martin, op cit., p. 82] Original document (1) A document, the contents of which is the subject of inquiry (2) All such copies executed at or about the same time, and with identical contents
DOCUMENTARY
Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, sec. 2]
NOTE: Carbon copies are deemed duplicate originals. [People v Tan (105 Phil. 1242 July 31, 1959)] (3) All such entries made and repeated in the regular course of business, at/near the time of the transaction [Rule 130, Sec. 4]
To be deemed documentary evidence, such writings or materials must be offered as proof of their contents. If offered for some other purpose, they constitute OBJECT EVIDENCE.
Secondary Evidence [In Order] (1) Copy (2) Recital of contents in some authentic document (3) Testimony of witnesses (Rule 130, Sec. 5)
B. REQUISITES FOR ADMISSIBILITY (1) Relevant (2) Competent (a) Document be Authenticated (b) Authenticated by Competent Witness (3) Formally Offered in Evidence [Riano]
Requisites for introduction of secondary evidence (Exceptions to BER) [Rule 130, Sec. 3] (1) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the offeror’s part Proponent must prove due execution, loss, destruction or unavailability of the original (Section 5, Rule 130) and
C. BEST EVIDENCE RULE Meaning of the rule When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. [Rule 130, Sec. 3] 394
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reasonable diligence and good faith in the search for/attempt to produce the original [Tan v. CA (G.R. No. L-56866 June 27, 1985)] ALL duplicates or counterparts must be accounted for before using copies [De Vera v. Aguilar, GR. No. 83377 Feb 9, 1993)] 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. CA (G.R. No. L-29575 April 30, 1971)] (2) When the original is in the custody or under the control of the party against whom it is offered, and the latter fails to produce it after reasonable notice (3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole (4) When the original is a public record in the custody of a public officer or is recorded in a public office (5) When the original is outside the jurisdiction of the court, secondary evidence is admissible [PNB v. Olila (98 Phil 1002, unreported, March 23, 1956)]
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D. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01- SC) Applicability These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. (REE, Rule 1, Sec. 2) Application in Criminal Actions While the case of Ang v. CA (G.R. No. 182835 April 20, 2010) held that the Rules on Electronic Evidence applies only to civil actions, quasijudicial proceedings and administrative proceeding, not to criminal action, People vs. Enojas (G.R. No. 204894, March 10, 2014), the SC upheld the RTC’s admission of text messages as evidence in a murder case as conforming with the Court’s earlier Resolution [A.M. NO. 01-7-01] applying the Rules on Electronic Evidence to criminal actions. Electronic document (1) Information or the representation of information, data, figures, symbols or other modes of written expression, (2) Described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, (3) Which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. (4) It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. [Sec. 1(h), REE] Electronic data message Information generated, sent, received or stored by electronic, optical or similar means. 395
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[Sec. 1(g), REE]
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(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.
Factors in assessing evidentiary weight of electronic evidence (Rule 7, Sec. 1) In assessing the evidentiary weight of an electronic document, the following factors may be considered: (1) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to (a) input and output procedures, (b) controls, tests and checks for accuracy and reliability of the electronic data message or document, (c) 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; (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Rule 7, Sec. 2]
Text messages have been classified as “ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” [Vidallon-Magtolis v. Salud (A.M. No. CA-05-20-P Sept. 9, 2005)] Method of Proof (1) Affidavit of Evidence [Rule 9, sec. 1] (a) Must state facts i. of direct personal knowledge, or ii. based on authentic records (b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit (2) Cross-Examination of Deponent [Rule 9, Sec. 2] (a) Affiant shall affirm the contents of the affidavit in open court. (b) Affiant may be cross-examined as a matter of right by the adverse party.
Authentication of electronic documents and electronic signatures (Rule 5, Secs. 1-3; Rule 11, Secs. 1-2, REE) Of Electronic Documents Burden of Proving Authenticity: The person seeking to introduce the electronic document in any legal proceeding has the burden of proving its authenticity. [Rule 5, Sec. 1] 396
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What Constitute Business Records: Records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes [Rule 2, Sec. 1 (b)]
Before any private electronic document can be offered as authentic is received in evidence, its authenticity must be proved by any of the following manner: (1) By evidence that it had been digitally signed by the person purported to have signed the same; (2) 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 (3) By other evidence showing its integrity and reliability to the satisfaction of the judge. [Rule 5, Sec. 2]
Requisites to an exception to the rule on hearsay evidence A memorandum, report, record, or data compilation of acts, events, conditions, opinions or diagnosis: (1) Made by electronic, optical or other similar means (2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity, (5) Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Rule 8, Sec. 1]
Of Electronic Signatures [Rule 6, Sec. 2] (1) By evidence that a method or process was utilized to establish a digital signature and verify the same; (2) By any other means provided by law; or (3) By any other means satisfactory to the judge Electronic documents and the Best Evidence Rule The following are originals/equivalent of originals (Rule 4, Secs. 1 and 2) (1) A printout or output readable by sight or other means, shown to reflect data accurately (2) Copies executed at or about the same time with identical contents (3) Counterpart produced by the same impression as the original (4) Copies or duplicates produced from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which reproduces the original
The presumption provided above may be overcome by evidence of— (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation, transmission or storage thereof [Rule 8, Sec. 2] Audio, photographic, video and ephemeral evidence Audio, video and similar evidence, to be admissible shall be— (1) shown, presented or displayed to the court and (2) identified, explained or authenticated by the person who made the recording or by
Electronic documents and the Hearsay Rule Business Records as Exception to the Hearsay Rule 397
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some other person competent to testify on the accuracy thereof (Rule 11, Sec.1)
(2) Ground/s for presenting parol evidence is put in issue in the pleading
Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. (Rule 11, Sec. 2)
Grounds for presenting parol evidence: (1) An intrinsic ambiguity, mistake or imperfection in the written agreement Intrinsic ambiguity – writing admits of two constructions both of which are in harmony with the language used
If ephemeral electronic communication and recording of telephone conversation under Rule 11, Sec 2 of the REE are recorded or embodied in an electronic document, then the provisions of Rule 5 (“Authentication of Electronic Documents”) shall apply.
Note: If ambiguity is intermediate (both latent and patent), parol evidence is admissible [Regalado citing 20 Am. Jur 1011] Mistake refers to mistake of fact which is mutual to the parties [BPI v. Fidelity and Surety, Co (G.R. No. L-26743 October 19, 1927)] Imperfection includes inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions [Regalado]
E. PAROL EVIDENCE RULE Meaning of 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. [Regalado]
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, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. [Rule 130, Sec. 9] 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. CA (G.R. No. L-39972 & L-40300 August 6, 1986)] When parol evidence can be introduced (1) When a party presents parol evidence to modify, explain or add to the terms of a written agreement AND
(2)
Failure of the written agreement to express the true intent and agreement of the parties thereto Purpose: To enable court to ascertain the true intention of the parties [Tolentino v. Gonzales Sy Chiam (G.R. No. 26085 August 12, 1927]
(3)
Validity of the written agreement Parol Evidence may be admitted to show: o True consideration of a contract o Want/Illegality of consideration o Incapacity of parties o Fictitious/simulated contract o Fraud in inducement [Regalado]
(4)
Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. Regarding Collateral Agreements:
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General Rule: Parol Evidence Rules applies Exceptions: (1) Collateral agreement is not inconsistent with the terms of the written contract (2) Collateral agreement has not been integrated in and is independent of the written contract (3) Collateral agreement is subsequent to and novatory of the written contract (4) Collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective (does not apply to conditions subsequent not stated in the agreement) [Regalado]
directly thereby
Meaning of authentication The preliminary step in showing the admissibility of evidence Proving that the objects and documents presented in evidence are not counterfeit Public and private documents
Parol Evidence Rule
Contemplates the Presupposes that the situation wherein the original document is original writing is not available in court available and/or there is a dispute as to whether said writing is the original
Private Documents
Public Documents
When offered as authentic, due execution and authenticity must be proved
Admissible without further proof of its due execution and authenticity
When a private writing requires authentication; proof of a private writing PRIVATE DOCUMENTS When offered as authentic General Rule: Authentication necessary
Prohibits the Prohibits the varying introduction of of the terms of a substitutionary evidence written agreement in lieu of the original document regardless of WON it varies the contents of the original
How to Prove Due Execution and Authenticity (1) By anyone who saw the document executed or written; OR (2) By evidence of the genuineness of the signature or handwriting of the maker [Rule 132, sec. 20]
Applies to all kinds of Applies only to documents documents contractual in nature (Exception: wills) Can be invoked by any party to an action regardless of WON such party participated in the writing involved
affected
F. AUTHENTICATION AND PROOF OF DOCUMENTS
Distinctions between the best evidence rule and parol evidence rule [Regalado] Best Evidence Rule
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Additional Modes of Authentication under American Jurisprudence [Regalado] (1) Doctrine of Self-Authentication – Where the facts in writing could only have been known by the writer (2) Rule of Authentication by adverse part – Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence
Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party 399
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PUBLIC DOCUMENTS Kinds of public documents 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 Public records, kept in the Philippines, of private documents required by law to be entered therein Notarial documents (except last wills and testaments) [Rule 132, Sec. 19]
When evidence of authenticity of a private writing is not required Ancient Documents – authentication NOT necessary provided that private document be: (1) More than 30 years old; (2) Produced from a custody in which it would naturally be found if genuine; and (3) Unblemished by any alterations or circumstances of suspicion. [Rule 132, Sec. 21]
Proof of public documents Records of Official Acts [Rule 132, sec. 24] By an official publication thereof; or By an attested copy of the document
Other instances when authentication is not required: (1) Writing is a public document/record [Rule 132, Sec. 19] (2) Notarial document acknowledged, proved/certified [Rule 132, Sec. 30] (3) When authenticity and due execution has been admitted as in the case of actionable documents under Rule 8, Sec. 8 (4) That which it is claimed to be: Authentication not necessary [Rule 132, sec. 20]
Note: Documents without documentary stamp affixed thereto, unless specifically exempted by law, may not be admitted or used in evidence in any court until the requisite stamp shall have been affixed. [Sec. 201, NIRC] Also, there is a presumption that the requisite stamps have been affixed in the original copy when only the carbon copies of the same is available. [Mahilum v CA (G.R. No. L-17666 June 30, 1966)]
How to prove genuineness of handwriting (1) By any witness who believes it to be the handwriting of such person because: (a) he has seen the person write; (b) he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Rule 132, sec. 22] (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 [Rule 132, sec. 22] (3) Expert evidence [Rule 130, sec. 49]
Attestation of a copy of a document or record [Rule 132, Sec. 25] (1) Must be made by the officer having the legal custody of the record, or by his deputy (2) Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be (3) Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which (1) May be made by a secretary of the embassy/legation, consul-general, consul, vice-consul, consular agent or any officer in 400
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the foreign service of the Philippines stationed in the foreign country in which the record is kept; (2) Must state that such officer has the custody; and (3) Must be authenticated by the seal of his office. [Rule 132, Sec. 24]
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acknowledgment being prima facie evidence of the execution of the instrument or document involved. [Rule 132, sec. 30] Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, sec. 23]
Public Records of Private Documents [Rule 132, sec. 27] (1) By the original record; or (2) By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. [Rule 132, sec. 27]
How to explain alterations in a document [Rule 132, sec. 31] (1) Document is being presented as genuine; (2) Document has been altered and appears to have been altered; (3) Alteration was made after execution of the document; and (4) Alteration is in a part material to the question in dispute
Note: Please refer to “Attestation of Copy” under Rule 132, Sec. 25. Proof of lack of record [Rule 132, Sec. 28] (1) Written statement (a) Signed by an officer having the custody of an official record or by his 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 office (2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the custody What to Establish to Impeach Judicial Record [Rule 132, sec. 29] (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
What to Show about the Alteration (1) Was made by another, without his 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.
Proof of notarial documents Notarial Documents (except last wills and testaments): every instrument duly acknowledged or proved and certified as provided by law which may be presented in evidence without further proof, the certificate of
Parties or their attorneys are directed to have the translation prepared before trial.
Whose Burden of Proof Party producing the document must account for the alteration. Failure to do so would result in the inadmissibility of evidence. Documentary evidence in an unofficial language [Rule 132, Sec. 33] NOT admissible unless accompanied by a translation into English or Filipino.
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V. Testimonial Evidence
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In case person is convicted of a crime General Rule: Not disqualified 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
A. QUALIFICATIONS OF A WITNESS Witness Defined 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]
B. COMPETENCY CREDIBILITY
Qualifications of a Witness [Rule 130, Sec. 20] All persons who can perceive, and, in perceiving, can make their known perception to others, may be witnesses.
VERSUS
Competency of a witness [Herrera] (1) One is qualified to take the witness stand if: (2) He is capable of perceiving at the time of the occurrence of the fact; and (3) He came make his perception known
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.
Competence
Credibility
A matter of law and of Has nothing to do rules with the law or rules
Qualifications of a witness (Herrera) (1) To observe, the testimonial quality of perception; (Rule 130, sec. 20) (2) To remember, the testimonial quality of memory; (3) To relate, the testimonial quality of narration; (Rule 130, sec. 20) (4) To recognize a duty to tell the truth, the testimonial quality of sincerity; (Rule 132, sec. 1) (5) He must not possess any of the disqualifications imposed by the law or rules. (Rule 132, sec. 1)
Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others
Refers to the weight and trustworthiness or reliability of the testimony
Remedy for errors or questions on competence of witness is by appeal 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, June 8, 1948; G.R. No. L-1709)
When determined Qualification of a witness is determined at the time the said witness are produced for examination or at the taking of their depositions.
Credibility not reviewable by the Supreme Court Credibility of a witness is a question of fact, which is not reviewable by the Supreme Court (Addenbrook v. People, June 29, 1967; G.R. No. L22995)
With respect to children of tender years, competence at the time of the occurrence is also taken into account.
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Two kinds of incompetency to testify: [Herrera, pg. 278] (1) Absolute – forbidden to testify on any matter. (2) Partial – forbidden to testify only on certain matters specified under Rule 130, Secs. 22 and 23 due to interest or relationship, or to privileges of the parties.
(2) His incapability must exist at the time of his production for examination [Riano] By reason of immaturity [Rule 130, Sec. 21(b)] Requisites (1) Mental maturity of the witness (child) must render him incapable of perceiving the facts respecting which he is examined. (2) He is incapable of relating his perception truthfully. [Riano]
Competency presumed A person who takes the witness stand is presumed to possess the qualifications of a witness. His competence may be questioned by the other party by interposing an objection. [Herrera, pg. 280]
When incapacity is determined Incapacity must occur at the time the witness perceives the event.
Incompetence vs. privilege Incompetency disqualifies a witness. Privilege excuses him from testifying. [Herrera, pg. 281]
C. DISQUALIFICATIONS WITNESSES
REMEDIAL LAW
Presumption of sanity [Herrera, p. 285] General rule: the law presumes that every person is of sound mind, in the absence of proof to the contrary. (Civil Code, Art. 800) Exception: if the witness is a lawful inmate of an asylum for the insane. [Herrera citing Torres v. Lopez (1926)]
OF
Effect if witness has interest in the subject matter [Regalado] A person is not disqualified (except if covered by the Dead Man’s statute)
A mental retardate is not therefore, per se, disqualified from being a witness. As long as his senses can perceive facts and if he can convey his perceptions in court, he can be a witness. [People v. Española, (G.R. No. 119308. April 18, 1997) citing People v. Salomon (G.R. No. 96848 January 21, 1994)]
Interest only affects credibility, not competency.
Effect of Relationship Mere relationship does not impair credibility. To warrant rejection, it must be clearly shown: (1) Testimony was inherently improbable or defective (2) Improper/evil motives had moved the witness to incriminate falsely
Unsound mind (1) Includes any mental aberration (organic/functional), induced by drugs/hypnosis (2) Not disqualified as long as the witness can convey ideas by words/signs
C.1. BY REASON OF MENTAL CAPACITY OR IMMATURITY
Deaf-Mutes Deaf-mutes are competent witnesses where they have sufficient knowledge to understand and appreciate the sanctity of an oath and comprehend the facts as to which they wish to speak, and are capable of communicating their
By reason of mental incapacity [Rule 130, Sec. 21(a)] Requisites (1) Person must be incapable of intelligently making known his perception to others 403
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Ideas with respect thereto. [People v. Hayag (G.R. No. L-38635 November 17, 1980)]
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prevent domestic disunion and unhappiness; and (4) Where there is want of domestic tranquillity, there is danger of punishing one spouse through the hostile testimony of the other.
They may give evidence by signs, or through an interpreter or in writing, and such testimony, through an interpreter, is not hearsay. But sign language must be capable of verification. [People v. Hayag (GR No. L-38635 Nov. 17, 1980)]
Waiver of marital disqualification If a spouse imputed the conviction to the other.
Child Witness The competency of a child witness is determined by his capacity for observation, recollection and communication. [People v. Mendoza (G.R. No. 113791. February 22, 1996)]
Spouses as co-accused The other cannot be called as an adverse party witness under this Rule. 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]
C.2. BY REASON OF MARRIAGE (ALSO KNOWN AS “MARITAL DISQUALIFICATION RULE” OR “SPOUSAL IMMUNITY”) Requisites (Rule 130, sec. 22) (1) Marriage is valid and existing as of the time of the offer of testimony. (2) That the spouse for or against whom the testimony is offered is a party to the case; (3) That the case is not one against the other. [Herrera]
Duration The privilege lasts only during the marriage and terminates upon divorce or annulment or death. [Herrera]
Exceptions [Rule 130, sec. 22]: Spouse may testify for or 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.
C.3. BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY (ALSO KNOWN AS “DEAD MAN’S STATUTE” OR “SURVIVORSHIP RULE”) Requisites [Rule 130, Sec. 23] (1) Defendant is the executor or administrator or a representative of the deceased or of the person of unsound mind; (2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind; (3) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and (4) Subject of the testimony is as to any matter of fact occurring before the death of such
Rationale [Alvarez v. Ramirez (G.R. No. 143439, October 14, 2005)] (1) There is identity of interests between husband and wife; (2) If one were to testify for or 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
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deceased person or before such person became of unsound mind.
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(5) No application to nominal parties, officers and stockholders against corporations (6) Cannot be used in a negative testimony (7) If the testimony is offered to prove a claim less than what is written (8) If the defendant did not object (9) When there is an existence of fraud (10) When the party cross-examines the witness
Applicability This rule is applied only to civil cases. It is still applicable even if the property has already been judicially adjudicated to the heirs regardless whether the deceased died before or after the suit.
C.4. BY REASON COMMUNICATIONS
Rationale To close lips of the plaintiff when death has closed the lips of the defendant in order to discourage perjury and protect the estate from fictitious claims.
OF
PRIVILEGED
Privilege (defined) 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, p. 315]
Facts favorable to the deceased are not prohibited The rule does not operate to exclude testimony favorable to the deceased because the rule seeks to protect his interests. [Herrera citing Go Chi Gun v. Co Cho (L-13342 November 28, 1962) which cited Jones on Evidence, pg. 313]
1. HUSBAND AND WIFE (MARITAL PRIVILEGE) [SEC. 24(A), RULE 130] Rationale Confidential nature of the privilege; to preserve marital and domestic relations.
When the Dead Man’s statute is not applicable (1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor. [Ong Chua v. Carr (G.R. No. L29512 January 17, 1929)] (2) He may also testify where he was the one sued by the decedent’s estate since the action then is not against the estate. [Tongco v. Vianzon (G.R. No. 27498 September 20, 1927)] (3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA (G.R. No. L-27434 September 23, 1986)] (4) No application to a mere witness
Requisites (1) There must be a valid marriage between the husband and wife; (2) There is a communication received in confidence by one from the other; and (3) The confidential communication was received during the marriage. (4) The spouse against whom such is being offered has not given his consent to such testimony. A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo (37 Phil. 726, March 6, 1918)]
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Scope: “Any communication” Includes utterances, either oral or written, or acts. [Herrera, pg. 318]
ii. Attorney and client [Sec. 24(b), Rule 130] Requisites (1) There must be a communication made by the client to the attorney or an advice given by the attorney to his client; (2) The communication must have been given in confidence; and (3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. (4) The client has not given his consent to the attorney’s testimony thereon.
When not applicable (1) When the communication was not intended to be kept in confidence (2) When the communication was made prior to the marriage (3) When the communication was overheard/comes into the hands of a third party whether legally or not (4) Waiver of the privilege (5) In a civil case by one against the other (6) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants.
Attorney’s secretary, stenographer, or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer.
Waiver [Herrera, pg. 322] (1) Failure of the spouse to object; or (2) Calling spouse as witness on cross examination (3) Any conduct constructed as implied consent.
Subject-matter of the privilege [Herrera pg. 329337] (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
In Contrast to Marital Disqualification Marital Disqualification [Sec. 22] One spouse should be a party to the case; Applies only if the marriage is existing at the time the testimony is offered; and Constitutes a total prohibition on any testimony for or against the spouse of the witness.
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Marital Privilege [Sec. 24 (a)] Neither of the spouses needs to be a party; Does not cease even after the marriage is dissolved; and
When not applicable (1) When the communication made was not for the purpose of creating relationship (even if afterwards he become counsel) (2) When the communication was intended to be made public (3) When the communication was intended to be communicated to others. When the communication was intended for an unlawful purpose (4) When the communication was received from third persons not acting in behalf/as agents of clients
Prohibition is limited to testimony on confidential communications between spouses.
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(5) When the communication was made in the presence of third parties stranger to the attorney-client relationship (6) When the communication has something to do with a client’s contemplated criminal act [People v. Sandiganbayan (G.R. Nos. 115439-41 July 16, 1997)] (7) When there is a controversy between the client and attorney [Herrera, pg. 335]
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(3) The information was necessary to enable him to act in that capacity; (4) Information, advice or treatment, if revealed, would blacken the reputation of the patient; and (5) Privilege is invoked in a civil case, whether or not the patient is a party thereto. Physician-patient relationship need not be entered into voluntarily.
Identity of Client General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client.
Where applicable (1) All forms of communication, advice or treatment (2) Information acquired by the physician from his personal observations and examination of the patient
Exceptions [Regala v. Sandiganbayan (G.R. No. 105938 and G.R. No. 108113 September 20, 1996)]: (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.
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. CA (supra)]
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, pp. 39-40] iii. Physician and patient [Sec. 24(c), Rule 130]
Waiver Express waiver – may only be done by the patient.
Requisites [Krohn v. CA (G.R. No. 108854 June 14,1994) citing Lim v. CA (G.R. No. 91114 September 25, 1992)] (1) Physician is authorized to practice medicine, surgery or obstetrics; (2) Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient;
Implied waiver [Herrera, pg. 355] (1) By failing to object (2) When the patient testifies (3) A testator procures an attending doctor to subscribe his will as an attesting witness
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(4) Disclosure of the privileged information either made or acquiesced by the privilege holder before trial (5) Where the patient examines the physician as to matters disclosed in a consultation (6) Also check Rule 28 on Mental or Physical Examination (Rules on Civil Procedure)
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iv. Priest and penitent [Sec. 24(d), Rule 130] Requisites (1) Confession was made to, or advice given by him pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest. (2) Confession or advice was confidential and penitential in character.
Professional capacity (defined) When the doctor attends to a patient for curative treatment, or for palliative or preventive treatment. [Herrera, pg. 343]
The priest or minister must be duly ordained in the sect in which he belongs. v. Public officers [Sec. 24(e), Rule 130]
Extent of rule The privilege extends to communications which have been addressed to physician’s assistants or agents. [Herrera, pg. 345]
Requisites (1) Communication was made to the public officer in official confidence; and (2) Public interest would suffer by the disclosure of such communication.
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. CA, supra]
Elements of “presidential communications privilege” (1) Must relate to a “quintessential and nondelegable presidential power;” (2) Must be authored or “solicited and received” by a close advisor of the President or the President himself; and (3) Privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere. [Neri v. Senate (G.R. No. 180643 September 4, 2008)]
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)]
Purpose of privilege: protection of public interest The privilege is not intended for the protection of public officers but for the protection of the public interest. When no public interest would be prejudiced, this privilege cannot be invoked. [Banco Filipino v. Monetary Board (G.R. No. 70054 July 8, 1986)]
Duration of privilege The privilege continues until the death of the patient. It may be waived by the personal representative of the decedent. [Herrera, pg. 356]
vi. Other Privileged Communication not in the ROC 408
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persons within the circles that normally deal with the kind of info in question, 2) Has commercial value because it is a secret; 3) Has been subject to reasonable steps, under the circumstances by the person lawfully in control of the information, to keep it a secret. [Art. 39]
Newsman’s Privilege [RA 53, as amended by RA 1477] General Rule: Publisher, editor or duly accredited reporter cannot be compelled to reveal the source of any news report or information related in confidence Exception: Court/House/Committee in Congress finds that such revelation is demanded by security of the State
Note: Electronic Document as Privileged Communication The confidential character of a privileged communication is not solely on the ground that it is in the form of an electronic document. [Rules on Electronic Evidence Rule 3, sec. 3]
Information in Conciliation Proceedings All information and statements made at conciliation proceedings shall be treated as privileged communications [Article 233, Labor Code]
vii. Parental and filial privilege rule [Sec. 25, Rule 130]
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]
General Rule: A person cannot be compelled to testify against his parents (parental privilege), other direct ascendants, children or other direct descendants (filial privilege). Exception [Art. 215, Family Code]: Descendant may be compelled to give his testimony in a criminal case when— (1) [against parent or grandparent] The testimony is indispensable in a crime committed against said descendant; or (2) [against parent] In a crime committed by one parent against the other.
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]
Applicability The rule is applied to both civil and criminal cases. [Herrera, pg. 364]
D. EXAMINATION OF A WITNESS D.1. RIGHTS AND OBLIGATIONS OF A WITNESS [SEC. 3, RULE 132]
TRIPS Agreement Undisclosed information or trade secrets are considered privileged communication.
i. Obligation of a witness To answer questions, although his answer may tend to establish a claim against him. ii. Rights of a witness
It is protected information if it complies with 3 requisites: 1) A secret in a sense that it is not generally known among or readily accessible to 409
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(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) Not to be examined except only as to matters pertinent to the issue (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, e.g., Sec. 8, RA 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 reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.
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Examination of the witness by the adverse party after said witness has given testimony on direct examination. The purpose is to test the witness’s accuracy and truthfulness, and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Matters covered Any matters stated in the direct examination, or connected therewith 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, pg. 175 citing Alford v. US (1931)]
One-Day Examination of Witness Rule [AM 03-1-09-SC] [2009 BAR]
The right to cross-examine under the constitution is superior to technical rules on evidence. [Herrera, pg. 176 citing People v. Valero (1982)]
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.
Partial cross-examination is sufficient where the witness was cross-examined on material points, and full cross-examination was not due to prosecutors’ fault but that of the defense who repeatedly moved for postponement, direct examination cannot be thrown off the case. [Herrera, pg. 178 citing People v. Caparas, 102 SCRA 782]
D.2. ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS i. Direct Examination [Rule 132, Sec. 5] Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue.
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, pg. 175]
The purpose is to elicit facts about the client’s cause of action or defense.
Cross-examination must be completed or finished. When cross-examination is not and cannot be done or completed due to causes
ii. Cross Examination [Rule 132, Sec. 6] 410
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attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. [Herrera, pg. 176 citing Ortigas, Jr. v. Lufthansa German Airlines (1975)]
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Leading and Misleading Questions [Sec. 10, Rule 132] Questions not allowed (1) Misleading Questions – These are questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. These are never allowed. (2) Leading Questions – These are questions that suggest to the witness the answer, which the examining party desires.
iii. Re-direct Examination [Rule 132, Sec. 7] Examination of a witness by the counsel who conducted the direct examination after the cross examination. The purpose is for the witness to explain or supplement his answers given during the crossexamination.
Leading questions General Rule: Leading questions are not allowed.
Matters covered Those stated in the cross-examination, and matters not dealt with, if allowed by the Court
Test of leading questions—by putting the words or though in the witness’ mind to be echoed back, the examiner is in effect the one testifying, not the witness. [Herrera, pg. 200 citing Escato v Pineda, CA 53 OG 7742]
iv. Re-cross Examination [Rule 132, Sec. 8] Examination conducted by adverse party upon conclusion of the re-direct examination.
Exceptions to leading questions: (1) On cross examination; (2) On preliminary matters; (3) When there is a difficulty is 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; (4) On an unwilling or hostile witness; (a) Adverse interest; (b) Unjustified reluctance to testify; (c) His having misled the party into calling him to the witness stand. (5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party.
Matters covered Those stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. v. Recalling the Witness [Rule 132, Sec. 9] After both sides have concluded the examination of a witness, either party with leave of court may recall a witness. 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 August 16, 1991)]
Misleading questions Questions containing facts not in evidence. [Herrera, pg. 207]
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Methods of Impeachment of Adverse Party’s Witness [Sec. 11, Rule 132]
authorized by the SC to receive evidence, including the IBP (Sec. 1)
(1) By contradictory evidence; (2) By evidence that his general reputation for truth, honesty or integrity is bad; (3) By evidence that he has made at other times statements inconsistent with his present testimony.
Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies (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
How the witness is impeached by evidence of inconsistent statements (laying the predicate) (1) The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him. (2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements. Purpose: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Evidence of the good character of a witness Evidence of the witness’ good character is not admissible until such character has been impeached. [Sec. 14, Rule 132] Because a witness is presumed to be truthful and of good character, the party presenting him does not have to prove he is good because he is presumed to be good. vi. Judicial Affidavit Rule [AM 12-8-8-SC]
This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. (Sec. 2)
Scope Applies to all actions and proceedings, and incidents requiring the reception of evidence before the courts, 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, and investigating officers and bodies
Contents (Section 3) A judicial affidavit 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, and shall contain the following: (1) The name, age, residence or business address, and occupation of the witness; 412
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(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; (5) The signature of the witness over his printed name; and (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.
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Offer When made: Upon the termination of the testimony of his last witness How made: Party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. Objection When made: After each piece of exhibit is offered, How made: Party shall state the legal ground for his objection, if any, to its admission. The court shall immediately make its ruling respecting that exhibit. Note: It is sufficient that the exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Effect of Non-compliance [Section 10] Party who fails to submit is deemed to have waived the submission of the same. The court, however, may allow, only once, late submission, provided the delay is for a valid reason and the defaulting party pays a fine.
The judicial affidavit shall also contain a sworn attestation executed by the lawyer who conducted or supervised the examination of the ·witness, to the effect that: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. [Section 4]
Court shall not consider affidavit of witness who fails to appear at the scheduled hearing. Counsel who failed to appear shall be deemed to have waived his client’s right to crossexamine the witnesses there present. Judicial affidavits that do not conform with the requirements cannot be admitted as evidence. Issuance of Subpoena [Section 5] If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness,
A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. [Section 4]
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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.
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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 January 26, 1995)] This rule talks about extra-judicial admission. Admission must— (1) Involve matters of fact, not of law (2) Be categorical and definite (3) Knowingly and voluntarily made Requisites for Admissibility (1) Made by a party; (2) Outside of court; (3) Relates to a relevant fact; and (4) Is against admitter’s interest. [Sec. 26, Rule 130]
E. ADMISSIONS AND CONFESSIONS E.1. RES INTER ALIOS ACTA RULE (2 BRANCHES) (1) First branch: Admission by a third party [Rule 130, sec. 28] (2) Second branch: Similar acts as evidence [Rule 130, sec. 34]
Effect It may be given in evidence against the admitter. [Sec. 26, Rule 130]
i. First branch With Respect to Admissions by a “Third-Party”
Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala (G.R. No. L-12988 January 24, 1918)]
General Rule: Admission by a third party is inadmissible
Admission must be made in context It is a rule that a statement is not competent as an admission where it does not, under reasonable construction, appear to admit or acknowledge the fact which is sought to be proved by it. [CMS Logging, Inc. v. CA (G.R. No. L-41420 July 10, 1992)]
Exceptions: (see detailed explanations below) (1) Partner’s or Agent’s Admission [Rule 130, sec. 29] (2) Admission by conspirator [Rule 130, sec. 30] (3) Admission by privies [Rule 130, sec. 31] Admission by a party [Rule 130, sec. 26] The act, declaration or omission of a party, as to a relevant fact may be given in evidence against him.
Rationale No man would make any declaration against himself unless it is true. [Republic v. Bautista (G.R. No. 169801 September 11, 2007)]
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.
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As Distinguished from Judicial Admissions Judicial Extrajudicial Made in connection Any other admission with a judicial (Rule 130, secs. 26 and proceeding in which it 32) is offered (Rule 129, sec. 4) May be conclusive Rebuttable (Rule 192, sec. 2) May be written, oral express or implied
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Just like in partnership and agency, the interest must be a subsisting one unless for the admission to be admissible. [Herrera, pg. 402] Exception to Res Inter Alios Acta Branch 1—CoConspirator’s Admission [Sec. 30, Rule 130] Requisites for admissibility (1) Act or declaration must relate to the conspiracy; (2) It must have been made during the existence of the conspiracy; and (3) Conspiracy must be shown by evidence other than such act/declaration.
Exception to Res Inter Alios Acta Branch 1— Partner’s or Agent’s Admission [Sec. 29, Rule 130] Requisites for admissibility: [Herrera, pg. 398] (1) The act or declaration of a partner or agent of the party; (2) Within the scope of his authority and (3) During the existence of the partnership or agency; (4) After the partnership or agency is shown by evidence other than such act or declaration (5) May be given in evidence against such party.
Existence of the conspiracy may be inferred from acts of the accused. [People v. Belen (G.R. No. L-13895 September 30, 1963)] Rule 130, sec. 30 applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano (G.R. No. L-7973 April 27, 1959)] As regards extrajudicial admissions after termination of conspiracy, before trial General Rule: Not admissible 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 (3) as a circumstance to determine credibility of witness (4) circumstantial evidence to show the probability of the latter’s participation [Regalado]
This rule also applies to the act or declaration of a joint owner, joint debtor, or other persons jointly interested with the party. [Sec. 29, Rule 130] Joint interests [Herrera, pg. 401] It is essential first that the joint interest be made to appear by evidence other than the admission itself. Second, it must be shown that the admission relates to the subject-matter of joint interest. 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 October 5, 1918)].
Doctrine of interlocking confessions: [People v. Molleda (G.R. No. L-34248 November 21, 1978)] Extrajudicial statements of co-accused may be taken as circumstantial evidence against the
A mere community of interests between several persons is not sufficient to make the admissions of one admissible against all. [Herrera, pg. 402] 415
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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
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holds title to the property in order that such admission may be binding upon the present owner. [Herrera, pg. 421 citing Gevero v. IAC (G.R. No. 77029 August 30, 1990)] Admission by Silence Requisites for Admissibility When silence is deemed an admission: [People v. Paragsa (G.R. No. L-44060 July 20, 1978)] (1) Person heard or understood the statement; (2) That he was at a liberty to make a denial; (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
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 coconspirators. [Herrera, pg. 410, citing People v. Vizcarra (G.R. No. L-38859 July 30, 1982)] Admission by Privies [Sec. 31, Rule 130] Requisites (1) There must be an act, declaration or an omission by a predecessor-in-interest; (2) Act, declaration or omission must have occurred while he was holding (not after) the title to the property; and (3) Act, declaration or omission must be in relation to the property.
When not applicable (1) Statements adverse to the party were made in the course of an official investigation, neither asked to reply nor comment [Sec. 2(b), R.A. 7438] (2) Party had justifiable reason to remain silent, ex. Acting on advice of counsel [Regalado]
Privies Defined Persons who are partakers or have an interest in any action or thing, or any relation to another [Riano citing Black’s Law Dictionary]
Confessions A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [Sec. 33, Rule 130]
It denotes the idea of succession, not only be 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 October 14, 1918)]
An acknowledgment in express words or terms, by a party, in a criminal case, of the crime charged or some essential parts of it. [People v. Lorenzo (G.R. No. 110107 January 26, 1995)] Requisites (1) Express and categorical acknowledgement of guilt (2) Facts admitted constitutes a criminal offense (3) Given voluntarily
Former owner of Real Estate It is necessary that the admission of the former owner of a property has been made while he 416
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(4) Intelligently made, realizing the importance or legal significance of the act (5) No violation of Secs. 12 and 17, Art. III of the Constitution [Regalado]
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ii. Similar Acts as Evidence Similar acts previously done General Rule: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. (2nd Branch of res inter alios acta rule) [Sec. 34, Rule 130]
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. December 4, 2002)]
Exceptions: Said evidence may be received to prove: (1) specific intent or knowledge; (2) identity; (3) plan, system, or scheme; (4) habit; (5) custom, usage and the like. [sec. 34, Rule 130]
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. November 14, 1996)] Effect of Extrajudicial Confession of Guilt General Rule: An extra-judicial confession made by an accused is not a sufficient ground for conviction. [Sec. 3, Rule 133] Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). [Sec. 3, Rule 133]
Reason for General Rule The rule is founded upon reason, justice and judicial convenience. The lone fact that a person committed the same or similar act at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. A man’s mind and even his modes of life may change; and objectively, the conditions which he may find himself at a given time make likewise change and induce him to act a different way. [Herrera, pg. 539 citing Justice Moran]
Corpus Delicti - substance of the crime; the fact that a crime has actually been committed [People v. De Leon (G.R. No. 180762. March 4, 2009)] As Distinguished from Admissions of a Party Admission of a Party Confession Merely a statement of Acknowledgment of fact guilt or liability Maybe express or tacit Must be express Maybe made by 3rd Can be made only by parties, and in certain the party himself, and cases, admissible admissible against his against a party co-accused in some instances Acts, declarations or Declarations omissions May be in any Criminal case proceeding
F. HEARSAY RULE F.1. GENERAL RULE ON HEARSAY A witness can testify only as to those facts which he knows of his personal knowledge, or those derived from his own perception. [Rule 130, Sec. 36] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements. [Consunji v. CA (G.R. No. 137873. April 20, 2001)]
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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 July 3, 1987)]
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The second class includes the following: (1) Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; (2) Statements of a person which show his physical condition, as illness and the like; (3) 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 (supra)]
Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng Manggagawang Pilipino (G.R. No. L-38964 January 31, 1975)]
G.2. MEANING OF HEARSAY It is an out-of-court statement which is offered by the witness in court to prove the truth of the matters asserted by the statement. It is any evidence, whether oral or documentary, if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [Regalado 11th ed.]
G.4. REASON FOR HEARSAY EVIDENCE
EXCLUSION
OF
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 outof-court declarant or actor upon whose reliability on which the worth of the out-ofcourt testimony depends. [Herrera, pg. 565]
G.3. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS 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 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. August 14, 1965)]
G.5. EXCEPTIONS TO THE HEARSAY RULE (1) (2) (3) (4)
Dying declaration Declaration against interest Act or declaration about pedigree Family reputation or tradition regarding pedigree (5) Common reputation (6) Part of the res gestae (7) Entries in the course of business (8) Entries in official records (9) Commercial lists and the like (10) Learned treaties (11) Testimony or deposition at a former trial
These are statements which are relevant independently of whether they are true or not. [Estrada v. Desierto (G.R. Nos. 146710-15. April 3, 2001)] Two classes of independently relevant statements: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. [Estrada v. Desierto (supra)] 418
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i. Dying declaration Also known as “antemortem statement” or “statement in articulo mortis” [Sec. 37, Rule 130]
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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 believe himself in imminent danger of death at the time of such declaration. [Herrera, pg. 600 citing People v. Ericta 77 SCRA 199]
Requisites for Admissibility (1) Declaration is one made by a dying person; (2) Declaration was made under the consciousness of an impending death; (3) Declaration refers to cause and surrounding circumstances of such death; (4) Declaration is offered in any case wherein his death is the subject of inquiry; (5) Declarant is competent as a witness had he survived [Geraldo v People (G.R. No. 173608. November 20, 2008)]; and (6) Declarant should have died. [People v. Macandog (G.R. No. 129534 and 1411691, June 6, 2001)]
Objections to the dying declaration May be premised on any of the requisites for its admissibility embodied in Sec. 37 of Rule 130. Counsel who wants a dying declaration excluded must have to deal with the primary question of whether or not the evidentiary foundations for the introduction where met. [Riano] Dying declarations are admissible in favor of the defendant as well as against him. [US v. Antipolo(37 Phil. 726, March 6, 1918)]
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. April 16, 2001)]
ii. Declaration against interest Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declaration relates to a fact against the interest of the declarant; (3) At the time he made said declaration, declarant was aware that the same was contrary to his interest; and (4) Declarant had no motive to falsify and believed such declaration to be true [sec. 38, Rule 130]
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 November 28, 2007)] If the declarant’s statement is made under consciousness of impending death, a subsequent belief in recovery before his actual death does not bar admissibility of his statement [Riano citing People v. Black (1979), 96 CA3d 846, 158 CR 449]
Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. CA (G.R. No. 111692. February 9, 1996)]
The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada (G.R. No. 146865. February 18, 2004)]
Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s
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successors-in-interest or even against third persons [Sec. 38, Rule 130]
iii. Act or declaration about pedigree Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) The pedigree is in issue or is relevant thereto; [Herrera, pg. 641] (3) Declarant must be related by birth or marriage to the person whose pedigree is in issue; (4) Declaration was made before the controversy; and (5) Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. [Sec. 39, Rule 130]
Actual or real interest It is essential that at the time of the statement, the declarant’s interest affected thereby should be actual, real or apparent, not merely contingent, future or, conditional; otherwise the declaration would not in reality be against interest. (example: declarations regarding a declarant’s inheritance are not admissible because these are future interests) [Herrera, pg. 625] Admissible against third persons If all the requisites for admission of a declaration against interest are present, the admission is admissible not only against the declarant but against third persons. [Herrera, pg. 626 citing Viacrusis v. CA, 44 SCRA 176] As Distinguished from Desierto (April 3, 2001)] Admission by a party (Rule 130.26) Admitter is a party himself, or in privity with such party; Admissible whether or not admitter is available as a witness Can be made any time, even during trial; Admissible only against the admitter; and Admissible not as an exception to any rule
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Pedigree includes (1) Relationship; (2) Family genealogy; (3) Birth; (4) Marriage; (5) Death; (6) Dates when these facts occurred; (7) Places where these facts occurred; (8) Names of relatives; and (9) Facts of family history intimately connected with pedigree. [Sec. 39, Rule 130]
Admissions [Estrada v. Declaration against Interest (Rule 130.38) Declarant is neither a party nor in privity with a party; Admissible only when declarant is unavailable as a witness; Must have been made ante litem motam; Admissible even against 3rd persons; and Admissible as an exception to the hearsay rule Made against one’s pecuniary or moral interest
“Proof other than declaration” General Rule: Proof of relationship must be shown in evidence other than the declaration. Exception: The general rule does not apply where the claim is sought to reach the estate of the declarant himself, and not merely to establish a right through his declarations to the property of some other member of the family. [Tison v. CA (G.R. No. 121027. July 31, 1997)] Not applicable to adoption The rule allowing proof of pedigree is not applicable to adoption. The absence of proof of an order of adoption by the court, as provided by statute, cannot be substituted by parol evidence that the child has lived with a person,
Made against one’s claim or defense, although not moral or pecuniary interest Primary evidence Secondary evidence
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not his parent, and was treated as child during the latter’s lifetime. [Herrera, pg. 468 citing Lazatin v. Campos (G.R. No. L-43955-56 July 30, 1979)]
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Distinguished from Declaration about Pedigree [Herrera, pp. 662-663] Sec. 39 – Declaration Sec. 40 – Family about Pedigree Reputation or Tradition There must be a The witness testifying declarant and a to the family witness reputation and The witness need not tradition must be a be a relative of the member of the family person whose member of the person pedigree is in whose pedigree is in question, it must be controversy. the declarant. Independent evidence The witness may is needed to establish testify on the relationship between relationship between declarant and person such relationship whose pedigree is in himself. The author of issue the reputation need not be established by independent evidence.
Pedigree declaration by conduct This rule may also consist of proof of acts or conduct of relatives and the mode of treatment in the family of one whose parentage is in question. [Herrera, pg. 649] iv. Family reputation or tradition regarding pedigree Requisites for Admissibility (1) Witness must be a member, by consanguinity or affinity, of the same family as the subject; and (2) Such reputation or tradition must have existed in that family ante litem motam. [sec. 40, Rule 130]
v. Common Reputation
Other Admissible Evidence (1) Entries in family bibles or other family books; (2) Charts; (3) Engravings on rings; (4) Family portraits and the like [Sec. 40, Rule 130]
Requisites for Admissibility (1) Reputation pertains to: (a) facts of public or general interest more than 30 years old, (b) marriage, or (c) moral character (2) Common reputation existed ante litem motam. [Sec. 41, Rule 130]
This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. [Jison v. CA (G.R. No. 124853. February 24, 1998)]
Other Admissible Evidence (1) Monuments (2) Inscriptions in public places [sec. 41, Rule 130] Pedigree may be established by reputation in the family, but not in the community. [Rule 130, Secs. 40-41]
A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo (G.R. No. L-24989 July 21, 1967)]
Common reputation is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness. [Riano citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542]
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Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. [In re: Florencio Mallare (A.M. No. 533 September 12, 1974)]
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(2) Verbal acts - Statements, which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to equivocal act [Talidano v. Falcom Maritime (2008)] (e) Must be made at the time, not after, the equivocal act was being performed
Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations. (In re: Florencio Mallare (supra)] vi. Part of the res gestae Res Gestae (meaning) This expression signifies merely “transactions” or “things done” and is used in common law as meaning the circumstances which are automatic and undersigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act. [Herrera, pg. 683]
A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes] A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately after the incident. [People v. Reyes]
Admissible Statements (1) Spontaneous statements - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof: (a) Principal act be a startling occurrence (b) Statement made before declarant had opportunity to contrive [Talidano v. Falcom Maritime (2008)] (c) Statement refer to occurrence in question and attending circumstances (Sec. 42, Rule 130) or that the statements must concern the occurrence in question and its immediate attending circumstances [Talidano v. Falcom Maritime (2008)]
vii. Entries in the course of business Requisites for Admissibility (1) Entries were made at, or near the time of the transactions referred to; (2) Such entries were made in the ordinary or regular course of business or duty; (3) Entrant was in a position to know the facts stated in the entries; (4) Entrant did so in his professional capacity, or in the performance of duty and in the regular course of business; and (5) Entrant is now dead or unable to testify. [Northwest Airlines v. Chiong (2008)] 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 422
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memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner (1916)]
Entries in a police blotter are not conclusive proof of the truth of such entries. [People v. Cabuang (G.R. No. 103292 January 27, 1993)]
“Business records” are exempt from the hearsay rule. [Rule 8, sec. 1, Rules on Electronic Evidence]
Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (G.R. No. L-22378 June 29, 1968)]
Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity [Sapio v. Undaloc Construction (2008)]
ix. Commercial lists and the like
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 (2006)]
Requisites for Admissibility (1) Statements of matters of interest to persons engaged in an occupation; [Herrera, pg. 758] (2) Such statements are contained in a list; (3) Compilation is published for use by persons engaged in that occupation; and (4) It is generally used and relied upon by them.
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. (2010)]
Need of preliminary proof of trustworthiness There should be requirements of preliminary proof of trustworthiness before such lists are rendered admissible. Some proof must be shown how or in what manner it was made up, where the information it contained was obtained, or whether the quotation of prices made were derived from actual sales or otherwise. [Herrera, pg. 760]
viii. Entries in official records Requisites for Admissibility (1) Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [Sec. 44, Rule 130]; (2) 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 (2006)]; and (3) Entries were duly entered in a regular manner in the official records.
x. Learned Treatises Requisites for Admissibility (1) Published treatise, periodical or pamphlet is on a subject of history, law, science, or art; and (2) Court takes either: (a) judicial notice of it, or (b) witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject
Entries in official records, just like entries in the course of business, are merely prima facie evidence of the facts therein stated. [Secs. 4344, Rule 130]
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xi. Testimony or deposition at a former trial
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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 September 13, 1990)]
Requisites for Admissibility [Sec. 47, Rule 130; Manliclic v. Calaunan (G.R. No. 150157 January 25, 2007)] (1) Witness is dead or unable to testify; (2) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (3) Former case involved the same subject as that in the present case although on different causes of action; (4) Issue testified to by the witness in the former trial is the same issue involved in the present case; and (5) Adverse party had the opportunity to crossexamine the witness in the former case.
Expert evidence is the testimony of one possession in regard to a particular subject or department of human activity not usually acquired by other persons. [Herrera, pg. 787] Question in admitting expert testimony Whether the opinion called for will aid the fact finder in resolving an issue, or whether the jury or the judge is as well qualified as the witness to draw its own or his own deductions from the hypothetical facts. [Herrera, pg. 787]
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. CA (G.R. No. L-22793 May 16, 1967)]
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 pg. 787] 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, pg. 790]
H. OPINION RULE General Rule: The opinion of witness is not admissible [Sec. 48, Rule 130] Exceptions [NOTE: Please refer to succeeding subsections for discussion] (1) Expert witness [Rule 130, sec. 49] (2) Ordinary witness [Rue 130, sec. 50]
Mode of examination of expert witness He may base his opinion either on a first-hand knowledge of the facts or 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, pg. 793]
H.1. OPINION OF EXPERT WITNESS [SEC. 49, RULE 130] The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence.
Test of hypothetical questions Fairness is the ultimate test of hypothetical questions. The Court shall reject a question which unfairly selects parts of the facts proved or omits material facts. If it omits facts, it may 424
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be opposed on the ground that it is misleading. [Herrera, pg. 798]
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person. He may only draw on the knowledge which he already has and which enables him to recognize the handwriting.
Admissibility of hypothetical question Admissibility of hypothetical questions depends on whether it furnishes the tribunal with the means of knowing upon what premises of fact the conclusion is based. [Herrera citing Magiore v. Sheed (195 A. 392, 173 Md 33)]
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, pg. 825] 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, pg. 825]
H.2. OPINION OF ORDINARY WITNESS [SEC. 50, RULE 130] (1) If proper basis is given, and (2) Regarding: (a) Identity of a person about whom he has adequate knowledge; (b) Handwriting with which he has sufficient familiarity; (c) Mental sanity of a person with whom he is sufficiently acquainted; and (d) Impressions of the (i) emotion, (ii) behavior, (iii) condition, or (iv) appearance of a person
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]
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, pg. 824]
I. CHARACTER EVIDENCE General Rule [Sec. 51, Rule 130]: Character evidence is not admissible.
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, pp. 824-825 citing US v. Manabat (G.R. No. 3093, 7 Phil. 209)]
Exceptions (1) Criminal cases [Sec. 51(a), Rule 130] (2) Civil case [Sec. 51 (b), Rule 130] (3) In the case provided for in Rule 132, Sec. 14.
Handwriting with which he has sufficient familiarity The ordinary witness must be acquainted with the characteristics of the handwriting of a
Character evidence (definition) The aggregate of the moral qualities which belong to and distinguish an individual person; 425
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the general result of one’s distinguishing attributes. [Herrera citing Black’s Law Dictionary, pg. 834]
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In rape cases, the character of a woman may be relevant and admissible on the question of the presence or absence of her consent. While in homicide and assault cases, it may be used as evidence of the victim’s character for turbulence and violence warranting the response of the accused. [Herrera pg. 837 and 839]
Character distinguished from reputation Character is what a man is and depends on attributes he possesses. It signifies reality.
I.2. CIVIL CASES
Reputation is what he is supposed to be in what people say he is, it depends on attributes which others believe one to possess. It signifies what is accepted to be reality at present. [Herrera citing Black’s Law Dictionary, pg. 834]
Moral character is admissible only when pertinent to the issue of character involved in the case. [Sec. 51(b), Rule 130] Evidence of the witness’ good character is not admissible until such character has been impeached. [Sec. 14, Rule 130]
I.1. CRIMINAL CASES (1) Accused – May prove his 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 – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
J. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, maybe admitted in evidence in any criminal or noncriminal proceeding subject to the following rules:
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, pg. 835]
(1) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse part. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (2) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:
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 May 8, 1992)] Good or bad moral character of offended party This is usually offered in rape cases and where the accused invokes the defense of self-defense.
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J.2.MEANING OF “CHILD WITNESS” [SEC. 4 (A)]
(a) Whether there is a motive to lie; (b) The general character of the declarant child; (c) Whether more than one person heard the statement; (d) Whether the statement was spontaneous; (e) The timing of the statement and the relationship between the declarant child and witness; (f) Cross-examination could not show the lack of knowledge of the declaration child; (g) The possibility of faulty recollection of the declarant of child is remote; and (h) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (3) The child witness shall be considered unavailable under the following situations: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
(1) Any person who at the time of giving testimony is less than 18 years; (2) In child abuse cases a child includes one over 18 years, (a) But is found by the court as: (i) Unable to fully take care of himself, or (ii) Protect himself from abuse, neglect, cruelty, exploitation, or discrimination (b) Because of a physical or mental disability or condition.
J.3. COMPETENCY OF CHILD WITNESS Presumption of competence Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)] Requisites of competency of a child as witness [People v. Mendoza (G.R. No. 113791. February 22, 1996)] (1) Capacity of observation; (2) Capacity of recollection; and (3) Capacity of communication. When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/ communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted.
When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.
J.1. APPLICABILITY OF THE RULE Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. [Sec. 1]
The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)]
The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32] 427
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J.4. EXAMINATION OF A CHILD WITNESS
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The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony.
(1) In open court [Sec. 11] (2) Alternative Modes (a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a Witness [Sec. 25] (i) 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. (ii) Trauma must be of a kind which would impair the completeness or truthfulness of the child’s testimony. (b) Videotaped Deposition of a Child Witness [Sec. 27] (i) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (ii) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.
If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. ii. Videotaped deposition of a child witness [Sec. 27] If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. The rights of the accused during trial, especially the right to counsel and to confront and crossexamine the child, shall not be violated during the deposition. Admissibility of videotaped and audiotaped indepth investigative or disclosure interviews in child abuse cases [Sec. 29] Requisites for admissibility: (1) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c) which are: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (2) The interview of the child was conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or
i. Live-link TV testimony of a child witness [Sec. 25] Live-link television testimony, in criminal cases where the child is a victim or a witness The court may order that the testimony of the child be taken by live-link television 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.
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J.5. HEARSAY EXCEPTION IN CHILD ABUSE CASES [SEC. 28]
child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (3) The party offering the videotape or audiotape must prove that: (a) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (b) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (c) the videotape and audiotape machine or device was capable of recording testimony; (d) the person operating the device was competent to operate it; (e) the videotape or audiotape is authentic and correct; and (f) it has been duly preserved.
Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. If the child is available, court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. If unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence.
J.6. SEXUAL ABUSE SHIELD RULE General Rule [Sec. 30(a)]: The following are inadmissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; (2) Evidence offered to prove the sexual predisposition of the alleged victim. Exception [Sec. 30(b)]: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury or other physical evidence.
The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings.
Protective orders Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)]
The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse.
The court may issue additional orders to protect the child’s privacy. [Sec. 31(c)] Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the 429
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child, shall be liable for contempt of court. [Sec. 31(d)]
the testimony, the court must consider the testimony.
A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. [Sec. 31(e)]
The provisions of the ROC on the inclusion on appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such pleadings or documents not offered at the hearing of the case [Candido v. CA, G.R. No. 107493. February 1, 1996)]
VI. Offer and Objection
When formal offer is not required (1) In a summary proceeding because it is a proceeding where there is no full-blown trial; (2) Documents judicially admitted or taken judicial notice of; (3) Documents, affidavits, and depositions used in rendering a summary judgment; (4) Documents or affidavits used in deciding quasi-judicial or administrative cases [Bantolino v. Coca Cola Bottlers (G.R. No. 153660. June 10, 2003)] (5) Lost objects previously marked, identified, described in the record, and testified to by witness who had been subjects of crossexamination in respect to said objects [Tabuena v. CA, (G.R. No. 85423 May 6, 1991) citing People v. Napat-a, (G.R. No. 84951 November 14, 1989)] [Riano]
A. OFFER OF EVIDENCE Rule: Court shall consider no evidence which has not been formally offered. (Rule 132, Sec. 34) Purpose: The purpose for which the evidence is offered must be specified. As Distinguished from Identification of Documentary Evidence [Interpacific Transit v. Aviles (G.R. No. 86062 June 6, 1990)] Identification of Formal Offer of Exhibit Documentary Evidence Done in the course of Done only when the the trial and party rests his/her accompanied by the case marking of the evidence
Waiver of right to make a formal offer It is deemed waived by a party if it fails to submit within a considerable period of time its formal offer. [Heirs of Pasag v. Parocha (G.R. No. 155483 April 27, 2007)] In this case, the court did not allow the petitioners to present their formal offer 10 years after resting its case. In an earlier case of Constantino v. CA (G.R. No. 116018, November 13, 1996), the Court did not allow a formal offer even only after three months because such would, “condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.”
Why formal offer is needed There is a need for a formal offer of evidence because without such offer, the court cannot determine whether the evidence is admissible or not. [Riano] No evidentiary value can be given to pieces of evidence not formally offered. [Dizon v. CTA (G.R. No. 140944 April 30, 2008)] However, where the absence of an offer of a testimonial evidence was not objected to as when the witness was cross-examined by the adverse party despite failure to make an offer of 430
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Excluding inadmissible evidence (1) One has to object to the evidence; (2) The objection must be timely made; and (3) The grounds for the objection must be specified. [Herrera, pg. 321]
B. WHEN TO MAKE AN OFFER [SEC. 35, RULE 132] Kind of evidence Testimonial Documentary and Object
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When to offer At the time the witness is called to testify After the presentation of a party’s testimonial evidence
Purposes of objection [Riano] (1) Made to keep out inadmissible evidence that would cause harm to client’s cause (rules of evidence are not selfoperating) (2) To protect the record (for future appeal) (3) To protect witness from being embarrassed or harassed (4) To expose adversary’s unfair tactics (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
Offer shall be done orally unless allowed by the court to be done in writing. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA (G.R. No. 105813 September 12, 1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate (G.R. No. L-34754 March 27, 1981)]
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]
The defendant cannot offer his evidence before the plaintiff has rested. [Herrera citing Engersail v. Malabon Sugar Co., 53 Phil. 7450]
General Objections do not clearly indicate to the judge the ground upon which the objections are predicated. In cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient and where the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed. [Riano]
C. OBJECTION [SEC. 36, RULE 132] Concept What to object to Testimonial evidence
When to object Immediately after offer is made Question propounded As soon as the in the course of oral grounds become examination reasonably apparent Offer done in writing Within 3 days after notice of the offer, unless a different period is allowed by the court The grounds for objection must be specified in any case.
Formal v. Substantive Objections [Riano] Formal – one directed against the alleged defect in the formulation of the question Substantive – objections made and directed against the very nature of the evidence
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Waiver of objection When the party should have objected but did not. The failure to point out a defect, irregularity or wrong in the admission or exclusion of evidence. [Riano]
Por lo que puedo valer principle The Supreme Court encourages the admission or borderline evidence for whatever it is worth or por lo que puedo valer. [Prats & Co. v. Phoenix Insurance (52 Phil. 807 February 25, 1930)]
Effect of waiver A waiver of objection should not be construed as an admission that the evidence is credible. The scope of the waiver is only either on the relevance or competence of the evidence. [Riano]
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, pg. 336 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, pg. 336]
D. REPETITION OF AN OBJECTION [SEC. 37, RULE 132]
F. STRIKING OUT AN ANSWER [SEC. 39, RULE 132]
A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship (G.R. No. L-12308 August 28, 1918)]
Motion to strike (1) Court may sustain an objection and order the answer given to be stricken off the record if: (a) witness answers the question before the adverse party had the opportunity to object, and (b) such objection is found to be meritorious. (2) The court may also, upon motion, order the striking out of answers, which are (a) incompetent, (b) irrelevant or (c) otherwise improper.
An objection must be seasonably made at the time it is formally offered. 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 (supra)]
E. RULING ON THE OBJECTION [SEC. 38, RULE 132] The ruling should be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented. 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.
Other cases when motion to strike is proper (1) When the answer of the witness is unresponsive; (2) When the witness becomes unavailable for cross-examination through no fault of the cross-examining party; (3) When the testimony is allowed conditionally and the condition for its admissibility was not fulfilled; [Riano] (4) Where evidence has been properly received, and its effect has been
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 March 17, 1925)] 432
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destroyed by other evidence, or its admissibility has afterward become apparent; [Herrera, pg. 340] 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]
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, pg. 340] 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, pg. 340]
Two Methods of making the Tender: [Riano] (1) Where the counsel tells the court what the proposed testimony would be; (2) By using the question and answer form
G. TENDER OF EXCLUDED EVIDENCE [SEC. 40, RULE 132] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. Workmen’s Compensation Commission (G.R. No. L-43316 July 21, 1977)]
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]
How to Tender Evidence Kind of How to tender the evidence evidence Documentary Offeror may have the same attached or made part of the record Testimonial Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony
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. CA, (G.R. No. L-30351 September 11, 1974)] Harmless error rule [People v. Teehankee (G.R. Nos. 111206-08 October 6, 1995)] 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.
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I. Scope and Applicability of the Rule
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(15) R.A. No. 7942, Philippine Mining Act; (16) R.A. No. 8371, Indigenous Peoples Rights Act; (17) R.A. No. 8550, Philippine Fisheries Code; (18) R.A. No. 8749, Clean Air Act; (19) R.A. No. 9003, Ecological Solid Waste Management Act; (20) R.A. No. 9072, National Caves and Cave Resource Management Act; (21) R.A. No. 9147, Wildlife Conservation and Protection Act; (22) R.A. No. 9175, Chainsaw Act; (23)R.A. No. 9275, Clean Water Act; (24) R.A. No. 9483, Oil Spill Compensation Act of 2007; and (25) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws [Amending the NIRC]; R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development (26) Rules of Procedure for Environmental Cases Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. [Rule 1, Sec. 3]
These Rules shall govern the procedure in (1) civil, (2) criminal and (3) special civil actions Involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: (1) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; (2) P.D. No. 705, Revised Forestry Code; (3) P.D. No. 856, Sanitation Code; (4) P.D. No. 979, Marine Pollution Decree; (5) P.D. No. 1067, Water Code; (6) P.D. No. 1151, Philippine Environmental Policy of 1977; (7) P.D. No. 1433, Plant Quarantine Law of 1978; (8) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (9) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; (10) R.A. No. 4850, Laguna Lake Development Authority Act; (11) R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (12) R.A. No. 7076, People’s Small-Scale Mining Act; (13) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (14) R.A. No. 7611, Strategic Environmental Plan for Palawan Act; 435
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II. Civil Procedure
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environment. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
Who May File Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law. [Rule 2, Sec.4]
Procedure Filing of verified Complaint accompanied by (1) documents, affidavits, and/or objects to prove cause of action and (2) certification against forum shopping 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 Service of Summons Filing of verified Answer within 15 days from receipt of summons Issuance of Notice of Pre-trial within 2 days from filing of Answer Submission of Pre-Trial briefs 3 days before pre-trial Referral to Mediation, Mediation and Mediation Report Preliminary Conference Pre-trial Conference/s Pre-trial Order Continuous Trial Judgment and Execution
Citizen Suit – 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. 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 fifteen days from notice thereof. 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. 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. [Rule 2, Sec. 5]
A. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Except the Supreme Court, 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. [Rule 2, Sec. 10] Where the issuance of a TEPO is premised on the violation of an environmental law or a threatened damage or injury to the environment by any person, even the government and its agencies, the prohibition against the issuance of a TRO or preliminary injunction is premised on the presumption of regularity on the government and its agencies in enforcing environmental laws and protecting the 436
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motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for. [Rule 2, Sec. 15]
B. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) B.1. GROUND FOR ISSUANCE
D. PRE-TRIAL CONSENT DECREE
If it appears from the complaint that— (1) the matter is of extreme urgency and (2) the applicant will suffer grave injustice and irreparable injury [Rule 2, Sec. 8]
CONFERENCE;
The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences.
B.2. PERIOD OF EFFECTIVITY
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.
Seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined [Rule 2, Sec. 8]
B.3. DUTY OF COURT 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. [Rule 2, Sec. 8]
Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. [Rule 3, Sec.5]
The judge shall report any action taken on a TEPO, EPO, TRO or a preliminary injunction, including its modification and dissolution, to the Supreme Court, through the Office of the Court Administrator, within ten days from the action taken. [Rule 2, Sec. 11]
Consent decree – refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment. [Rule 1, Sec. 4(b)]
B.4. GROUND TO DISSOLVE TEPO
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 fifteen days; (4) Motion to declare the defendant in default; (5) Reply and rejoinder; and (6) Third party complaint. [Rule 2, Sec. 2]
E. PROHIBITED MOTIONS
A TEPO may be dissolved if it appears after hearing that its issuance or continuance would 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. [Rule 2, Sec. 9]
C. DECLARATION OF DEFAULT MOTU PROPRIO
PLEADINGS
AND
F. PERIOD TO TRY AND DECIDE The court shall have a period of one year from the filing of the complaint to try and decide the case. Before the expiration of the one-year
Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon 437
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period, the court may petition the Supreme Court for the extension of the period for justifiable cause.
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H. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS
The court shall prioritize the adjudication of environmental cases. [Rule 4, Sec. 5]
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 [Rule 5, Sec. 3]
G. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN SUIT G.1. RELIEFS IN A CITIZEN SUIT 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
Continuing mandamus – is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied [Rule 1, Sec. 4(c)]
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 [Rule 5, Sec. 1]
The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing 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. [Rule 5, Sec.3]
G.2. 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]
I. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) SLAPP – refers to a legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. [Rule 6, Sec. 1]
G.3. 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. [Rule 5, Sec. 2]
The SLAPP provisions apply not only to suits that have been filed in the form of a countersuit, but also to suits that are about to be filed with the intention of discouraging the aggrieved 438
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I.3. RESOLUTION OF THE DEFENSE OF A SLAPP
person from bringing a valid environmental complaint before the court.
(1) If action is dismissed, dismissal is with prejudice (2) If defense is rejected, action will proceed and evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case [Rule 6, Sec. 4]
Illustrations: (1) X files a complaint in an environmental case against A [violator of environmental laws] and the A retaliates by filing a complaint for damages against X; (2) X is a witness in a pending environmental case against A and A retaliates by filing a complaint for damages or libel against X; or (3) X is an environmental advocate who rallies for the protection of environmental rights and a complaint for damages is filed against him by A. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
III. Special Civil Actions A. WRIT OF KALIKASAN A.1. WHO MAY FILE (1) natural or juridical person, (2) entity authorized by law, (3) people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated…involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
I.1. SLAPP AS A DEFENSE If the suit is a SLAPP, such may be raised as an affirmative defense in the Answer along with other defenses. If SLAPP is interposed as a defense, it is mandatory for adverse party to file an Opposition [Rule 6, Sec. 2] The hearing on the defense of a SLAPP shall be summary in nature and shall be resolved within 30 days after the summary hearing [Rule 6, Secs. 3 & 4]
A.2. ACTS COVERED BY THE WRIT Unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. [Rule 7, Sec.1]
I.2. QUANTUM OF EVIDENCE Party asserting that claim is a SLAPP must prove such with substantial evidence. If the court finds a SLAPP defense valid, the plaintiff is required to prove the following: (1) that the case is not a SLAPP; and (2) the merits of the case with preponderance of evidence. [Rule 6, Sec.3]
A.3. WHERE TO FILE The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. [Rule 7, Sec.3]
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A.4. PROCEDURE
C.1. 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.
Filing of verified Petition with Certificate Against Forum Shopping Issuance of Writ of Kalikasan within 3 days from filing of petition Service of the Writ Filing of a verified Return within a nonextendible period of ten [10] days after service of the writ Hearing [Court may call for preliminary conference] Judgment
B. PROHIBITED MOTIONS
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PLEADINGS
C.2. 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.
D. APPEAL
AND
Within fifteen days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. [Rule 7, Sec. 16]
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. [Rule 7, Sec. 9]
E. WRIT OF CONTINUING MANDAMUS E.1. WHEN AVAILABLE (1) An agency or instrumentality of the government or officer thereof either: 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 (2) there is no other plain, speedy and adequate remedy in the ordinary course of law [Rule 8, Sec.1]
C. DISCOVERY MEASURES The following discovery measures are available to all parties to the writ: (1) Ocular Inspection (2) Production or inspection of documents and things [Rule 7, Sec.12] The motion must show that a production order 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. 440
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E.2. WHERE TO FILE
Kalikasan more cities provinces.
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Continuing Mandamus or there is no other plain, speedy and adequate remedy in the ordinary course of law. Who May File (1) natural and juridical persons, (2) entities authorized by law, (3) POs, NGOs, PIG, on Person personally behalf of aggrieved by the persons whose right unlawful act or omission to a balanced and healthful ecology is violated or threatened to be violated Respondent May be public or Government or its private individual or officers entity Docket Fees Exempted Exempted Venue 1] RTC exercising SC or CA territorial jurisdiction, 2] CA, 3] SC Discovery Measures Ocular Inspection and Production or None Inspection Order Damages None Allowed
(1) Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred (2) Court of Appeals (3) Supreme Court [Rule 8, Sec. 2]
E.3. PROCEDURE File a verified Petition with prayer that respondent be ordered to do an act or series of acts until the judgment is fully satisfied, and to pay damages + Certification Against Forum Shopping Issuance of Writ of Continuing Mandamus and Order to Comment Filing of Comment within 10 days after receipt of Order Summary Hearing Judgment Return of the Writ
E.4. DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING MANDAMUS Kalikasan
Continuing Mandamus Subject Matter Available against an Directed unlawful against [a] the unlawful act or omission of a neglect in the public official or performance of an employee, or private act specifically enjoined individual or entity, by law in connection involving with the enforcement/ environmental violation of an envt’l rule damage of such or [b] the unlawfully magnitude as to exclusion of another prejudice the life, from the use or health or property of enjoyment of such right inhabitants in two or and in both instances, 441
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IV. Criminal Procedure
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(2) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.
A. WHO MAY FILE (1) Offended party; (2) Peace officer; (3) Public officer charged with the enforcement of an environmental law [Rule 9, Sec. 1]
Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws. [Rule 11, Sec.1]
B. INSTITUTION OF CRIMINAL AND CIVIL ACTION 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 unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.
D. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION [SLAPP] The manner by which to allege that a criminal action is a SLAPP is through a motion to dismiss rather than a motion to quash. A motion to dismiss allows the action to be challenged as a SLAPP, while a motion to quash is directed at the Information. Moreover, granting a motion to dismiss bars the refiling of a SLAPP in accordance with the law of the case. In contrast, the grant of a motion to quash does not bar the filing of a subsequent Information. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. 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. [Rule 10, Sec. 1]
E. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS The applicable rules and regulations of the concerned government agency shall be followed. In the absence of such rules and regulations, the following procedure shall be observed: (1) Inventory. 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.
C. ARREST WITHOUT WARRANT, WHEN VALID (1) When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or 442
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(2) Return. The apprehending officer shall submit to the issuing court the return of the search warrant within five days from date of seizure or in case of warrantless arrest, submit within five days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. (3) Sale Upon Motion. Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. 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. The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. (4) Disposition of Proceeds. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment. [Rule 12, Sec. 2]
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(3) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia. [Rule 13, Sec. 2] If the court grants bail, the court may issue a hold-departure order in appropriate cases. [Rule 13, Sec.1]
G. ARRAIGNMENT AND PLEA G.1. WHEN The court shall set the arraignment of the accused within fifteen [15] days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment. [Rule 15, Sec. 1]
G.2. PLEA-BARGAINING On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: (1) Issue an order which contains the pleabargaining arrived at; (2) Proceed to receive evidence on the civil aspect of the case, if any; and (3) Render and promulgate judgment of conviction, including the civil liability for damages. [Rule 15, Sec. 2]
F. BAIL Written Undertaking by Accused (1) 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; (2) To appear whenever required by the court where the case is pending; and
H. PRE-TRIAL After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial. [Rule 16, Sec. 1]
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Parties are required to be under oath in pre-trial in order to obviate the use of false or misleading statements at this stage. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
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Standards for Application of the Precautionary Principle (1) Threats to human life or health; (2) Inequity to present or future generations; (3) Prejudice to the environment without legal consideration of the environmental rights of those affected. [Rule 20, Sec. 2]
I. SUBSIDIARY LIABILITIES In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiary liable under Article 102 and Article 103 of the Revised Penal Code. [Rule 18, Sec. 1]
B. DOCUMENTARY EVIDENCE B.1. PHOTOGRAPHIC, SIMILAR EVIDENCE AUTHENTICATED
VIDEO MUST
AND BE
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— (1) the person who took the same (2) some other person present when said evidence was taken, or (3) any other person competent to testify on the accuracy thereof. [Rule 21, Sec.1]
V. Evidence A. PRECAUTIONARY PRINCIPLE Precautionary principle states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat. [Rule 1, Sec. 4(b)]
B.2. ENTRIES IN OFFICIAL RECORDS AS PRIMA FACIE EVIDENCE Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. [Rule 21, Sec. 2]
When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. [Rule 20, Sec.1]
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