TABLE OF CONTENTS
JUDGMENT ON THE PLEADINGS ........... 89 SUMMARY JUDGMENTS ........................ 89 RENDITION OF JUDGMENTS AND FINAL ORDERS .............................. 91 ENTRY OF JUDGMENT AND FINAL ORDER ............................................................. 92
CIVIL PROCEDURE General Principles ............................ 1
CONCEPT OF REMEDIAL LAW .................. 1 SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW .......................... 1 RULE-MAKING POWER OF THE SUPREME COURT .................................................... 2 NATURE OF PHILIPPINE COURTS ............. 3
Post-Judgment Remedies ............ 93 MOTION FOR RECONSIDERATIO AND MOTION FOR NEW TRIAL ................... 93 APPEALS IN GENERAL ........................... 95 APPEALS FROM MTC TO THE RTC ......... 98 APPEAL FROM THE RTC ......................... 99 PETITION FOR REVIEW FROM THE RTC TO THE CA ............................................... 102 APPEALS FROM QUASI-JUDICIAL AGENCIES TO THE CA ........................ 103 APPEALS BY CERTIORARI TO THE SC .. 106 COMPARATIVE TABLE ON THE MODES OF APPEAL ............................................... 111 RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS ....................... 113 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS ............ 114 COLLATERAL ATTACK OF JUDGMENTS 116
Jurisdiction .......................................4 JURISDICTION IN GENERAL ..................... 4 JURISDICTION OVER THE PARTIES .......... 5 JURISDICTION OVER THE SUBJECT MATTER ................................................. 5 JURISDICTION OVER THE ISSUES ............. 7 JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION ..................... 7 JURISDICTION OF THE METC AND MTC .... 7 JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION ................... 8 JURISDICTION OF THE METC AND MTC .... 8 JURISDICTION OF THE RTC, FAMILY COURTS, AND SHARI’A COURTS ............ 10 JURISDICTION OF THE SANDIGANBAYAN ................................................................. 12 JURISDICTION OF THE COURT OF TAX APPEALS ................................................. 12 JURISDICTION OF THE CA ........................13 JURISDICTION OF THE SC ....................... 14
Execution, Satisfaction and Effect of Judgments .................................... 118 DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION ........ 118 WHEN EXECUTION SHALL ISSUE .......... 118 HOW A JUDGMENT IS EXECUTED ......... 121 EXECUTION FOR JUDGMENTS OF MONEY ............................................................122 EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS .................................. 124 EXECUTION FOR JUDGMENTS OF MONEY ........................................................... 125 PROPERTIES EXEMPT FROM EXECUTION ........................................................... 125 RETURN OF WRIT OF EXECUTION ........126 PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS ........... 127 RULES ON REDEMPTION ..................... 128 EFFECT OF JUDGMENT OR FINAL ORDERS ............................................................ 132 EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS ...................................134
Commencement of Action to Trial 14 ACTIONS.................................................. 15 CAUSE OF ACTION .................................. 16 PARTIES TO CIVIL ACTIONS ................... 19 VENUE .................................................... 25 PLEADINGS ............................................ 27 SUMMONS .............................................. 47 MOTIONS................................................. 51 DISMISSAL OF ACTIONS ........................60 PRE-TRIAL .............................................. 63 INTERVENTION ...................................... 70 SUBPOENA ..............................................71 MODES OF DISCOVERY .......................... 72 TRIAL ...................................................... 81 DEMURRER TO EVIDENCE .....................85
Provisional Remedies ..................135
Judgments and Final Orders ....... 87
NATURE OF PROVISIONAL REMEDIES .135 JURISDICTION OVER PROVISIONAL REMEDIES ..........................................135 PRELIMINARY ATTACHMENT ...............135
JUDGMENTS IN GENERAL ...................... 87 JUDGMENT WITHOUT TRIAL ..................88 CONTENTS OF A JUDGMENT .................89
1
TABLE OF CONTENTS
PRELIMINARY INJUNCTION ................. 139 RECEIVERSHIP ..................................... 144 REPLEVIN ............................................. 146
Summary Settlement of Estates 194 EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED .......................................... 195 AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR ......................................... 196 SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE ................................... 196 REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE .......................................... 197
Special Civil Actions .................... 152 IN GENERAL .......................................... 152 INTERPLEADER .................................... 153 DECLARATORY RELIEFS AND SIMILAR REMEDIES ............................. 154 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA .......................... 155 CERTIORARI, PROHIBITION AND MANDAMUS ................................. 156 QUO WARRANTO ................................. 162 EXPROPRIATION .................................. 164 FORECLOSURE OF REAL ESTATE MORTGAGE ................... 169 PARTITION ............................................172 FORCIBLE ENTRY AND UNLAWFUL DETAINER ..........................................175 CONTEMPT ............................................179
Production and Probate of Will .. 198 NATURE OF PROBATE PROCEEDING .. 198 WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE ....... 199
Allowance or Disallowance of Will ....................................................... 199
CONTENTS OF PETITION FOR ALLOWANCE OF WILL ....................... 199 GROUNDS FOR DISALLOWING A WILL 200 REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECTS OF PROBATE .......................................................... 200 REQUISITES FOR ALLOWANCE ........... 200
Special Civil Actions .................... 185 REVISED RULES ON SUMMARY PROCEDURE....................................... 185 KATARUNGANG PAMBARANGAY LAW [PD 1508; RA 7160 AS AMENDED] ....... 186 RULES OF PROCEDURE FOR SMALL CLAIMS CASES ...................................187 EFFICIENT USE OF PAPER RULE .......... 189
Letters Testamentary and of Administration ........................... 200
WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED .......... 200 ORDER OF PREFERENCE ..................... 201 OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION ............................. 201 POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS ............................... 202 APPOINTMENT OF SPECIAL ADMINISTRATOR ..................204 GROUNDS FOR REMOVAL OF ADMINISTRATOR .............................. 205
SPECIAL PROCEEDINGS Preliminary Matters ...................... 191 APPLICABLE RULES .............................. 191 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES ................................ 191 DIFFERENCE BETWEEN ACTION AND SPECIAL PROCEEDING ....................... 191 VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS .................... 192
Claims against the Estate ......... 206
ESTATE BURDENED WITH LIEN OF CREDITORS .......................................206 PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE .............................. 206 TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS .......................... 206 STATUTE OF NON-CLAIMS .................. 206
Settlement of Estate of Deceased Persons, Venue And Process ...... 193 JURISDICTION ...................................... 193
2
TABLE OF CONTENTS
CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE ............................................................ 207 PAYMENT OF DEBTS ........................... 208
INTER-COUNTRY ADOPTION ............... 227
Writ of Habeas Corpus ............... 228
VITAL PURPOSES ................................. 228 WHO MAY ISSUE THE WRIT ................. 228 TEMPORARY RELEASE MAY CONSTITUTE RESTRAINT -ELEMENTS ................... 228 NATURE ............................................... 228 WHC MAY BE USED WITH WRIT OF CERTIORARI FOR PURPOSES OF REVIEW .............................................. 229 WHC IS NOT THE PROPER REMEDY FOR THE CORRECTION OF ERRORS OF FACT OR LAW ............................................. 229 WHC IS NOT PROPER ........................... 229 WHC IS PROPER ................................... 229 CONTENTS OF THE PETITION .............. 229 CONTENTS OF THE RETURN ................ 230 DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION ................... 230 WHEN WRIT NOT PROPER OR APPLICABLE ...................................... 230 WHEN DISCHARGE NOT AUTHORIZED . 231 DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA (ANNEX B) ......... 231 CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-0404-SC) ................................................. 231 WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS ................. 234
Actions by and against Executors and Administrators ...................... 211 ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS ............................. 211
Distribution and Partition ........... 212 LIQUIDATION ....................................... 212 PROJECT OF PARTITION ...................... 212 EFFECT OF FINAL DECREE OF DISTRIBUTION ...................................213 REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE .............................................................213 INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION ...............213
Trustees ........................................ 213 DISTINGUISHED FROM EXECUTOR OR ADMINISTRATOR ...............................213 BOND .....................................................213 REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE ........... 214 GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE ........... 214 EXTENT OF AUTHORITY OF TRUSTEE . 214
Writ of Amparo.............................236 COVERAGE ........................................... 236 DISTINGUISH FROM WRIT OF HABEAS CORPUS AND HABEAS DATA (ANNEX C) ........................................................... 236 DISTINGUISH WRIT OF AMPARO FROM SEARCH WARRANT ........................... 237 WHO MAY FILE ..................................... 237 CONTENTS OF RETURN ....................... 237 OMNIBUS WAIVER RULE ..................... 238 EFFECT OF FAILURE TO FILE A RETURN ........................................................... 238 PROCEDURE FOR HEARING ON THE WRIT ........................................................... 238 INSTITUTION OF SEPARATE ACTIONS 238 EFFECT OF FILING OF A CRIMINAL ACTION ........................................................... 239 INTERIM RELIEFS AVAILABLE TO THE PETITIONER AND RESPONDENT ......240 QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT:
Escheat ......................................... 215 WHEN TO FILE ...................................... 215 REQUISITES FOR FILING OF PETITION 215 REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM ............................................................ 216
Guardianship ............................... 216 BASIS: PARENS PATRIAE ..................... 216 GUARDIANSHIP OF INCOMPETENT ..... 216 GENERAL POWERS AND DUTIES OF GUARDIANS ....................... 216 CONDITIONS OF THE BOND OF THE GUARDIAN ........................................ 218 RULE ON GUARDIANSHIP OVER MINORS ............................................................ 218
Adoption ..................................... 222 DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION (ANNEX A) ......................................... 222 DOMESTIC ADOPTION ACT ................... 226
3
TABLE OF CONTENTS
Writ of Habeas Data .................... 240
CRIMINAL PROCEDURE
SCOPE OF WRIT ................................... 240 AVAILABILITY OF WRIT ....................... 240 DISTINGUISHED FROM HABEAS CORPUS AND AMPARO .................................. 240 CONTENTS OF THE PETITION .............. 241 INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS ...................... 241 EFFECT OF FILING OF CRIMINAL ACTION ............................................................ 241 DIFFERENCES UNDER THE APPLICABLE RULES ................................................ 242
General Matters .......................... 260
JURISDICTION OVER SUBJECT MATTER AND JURISIDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED .........260 REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION ....................................260 JURISDICTION OF CRIMINAL COURTS .................................................261 WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION 262
Change of Name and Cancellation or Correction of Entries In the Civil Registry ......................... 247
Prosecution of Offenses ..............263
GROUNDS FOR CHANGE OF NAME (ANNEX D) ......................................... 247
CRIMINAL ACTIONS; HOW INSTITUTED ........................................................... 263 WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO ............ 263 CRIMINAL ACTIONS; WHEN ENJOINED 264 CONTROL OF PROSECUTION................ 264 SUFFICIENCY OF COMPLAINT OR INFORMATION ................................... 265 DESIGNATION OF OFFENSE ................. 265 CAUSE OF THE ACCUSATION................ 266 DUPLICITY OF OFFENSE; EXCEPTION .. 266 AMENDMENT OR SUBSTITUTION OF COMPLAINT OR VENUE OF CRIMINAL ACTIONS ............ 267 INTERVENTION OF OFFENDED PARTY. 268
Absentees ................................... 248 PURPOSE OF THE RULE .......................248 WHO MAY FILE; WHEN TO FILE ............248 PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF TRUSTEE OR ADMINISTRATOR [PDA] ............................................................248 WHEN TERMINATED ............................249
Cancellation or Correction of Entries in the Civil Registry ..................... 249 ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 .....................248
Prosecution of Civil Action ......... 269
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION ...... 269 WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY ............................... 269 WHEN SEPARATE CIVIL ACTION IS SUSPENDED ....................................... 269 EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION ................ 269 PREJUDICIAL QUESTION ...................... 270 RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH CRIMINAL ACTION............................................... 270
Appeals in Special Proceeding .. 250 JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN .................... 251 WHEN TO APPEAL ................................ 251 MODES OF APPEAL .............................. 251 RULE ON ADVANCE DISTRIBUTION ..... 251
Annex A ........................................ 251
Preliminary Investigation.............. 271 NATURE OF RIGHT ................................. 271 PURPOSES OF PRELIMINARY INVESTIGATION ................................. 272 WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE ..... 272
4
TABLE OF CONTENTS
RESOLUTION OF THE INVESTIGATING PROSECUTOR .................................... 273 REVIEW ................................................. 274 WHEN WARRANT OF ARREST MAY ISSUE ............................................................ 274 CASES NOT REQUIRING PRELIMINARY INVESTIGATION NOR COVERED BY THE RULE ON SUMMARY PROCEDURE .... 274 REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION ... 275 INQUEST................................................ 275
RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS ........... 286 RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF .............................................. 287 RIGHT AGAINST SELF-INCRIMINATION287 RIGHT TO CONFRONTATION ................ 287 RIGHT TO COMPULSORY PROCESS ...... 288 RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL..................................... 288 RIGHT TO APPEAL IN GENERAL ........... 288 RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS ............................... 288
Arrest ............................................ 276 DEFINITION ........................................... 276 HOW MADE ........................................... 276 ARREST WITHOUT WARRANT; WHEN LAWFUL ............................................. 277 METHOD OF ARREST ............................ 278 REQUISITES OF VALID WARRANT OF ARREST .............................................. 279 DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST ............................................. 280 PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED ................................ 280
Arraignment and Plea ................ 290 ARRAIGNMENT AND PLEA; HOW MADE ...........................................................290 WHEN PLEA OF NOT GUILTY SHOULD BE ENTERED............................................ 291 WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE ......... 291 ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT........ 292 SEARCHING INQUIRY............................ 292 IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE ............................. 293 GROUNDS FOR SUSPENSION OF ARRAIGNMENT .................................. 293
Bail................................................ 280 NATURE ............................................... 280 WHEN A MATTER OF RIGHT; EXCEPTIONS ........................................................... 280 WHEN A MATTER OF DISCRETION ....... 281 HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES ........................... 282 GUIDELINES IN FIXING AMOUNT OF BAIL ............................................................ 283 WHEN BAIL IS NOT REQUIRED ............. 283 INCREASE OR REDUCTION ................... 283 FORFEITURE AND CANCELLATION OF BAIL ....................................................284 APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION .................................284 HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST ............................................................284
Motion to Quash ......................... 294 FORM AND CONTENT ........................... 294 GROUNDS ............................................. 294 MOTION TO QUASH AND DEMURRER DISTINGUISHED ................................. 297 EFFECTS OF SUSTAINING THE MOTION TO QUASH ............................................... 297 EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION ...................................... 298 DOUBLE JEOPARDY .............................. 298 PROVISIONAL DISMISSAL .................... 299
Pre-Trial ....................................... 300
APPLICATION OF JUDICIAL AFFIDAVIT RULE ..................................................300 MATTERS TO BE CONSIDERED DURING PRE-TRIAL ......................................... 301 WHAT THE COURT SHOULD DO WHEN THE PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED ............................... 301 PRE-TRIAL AGREEMENT ...................... 302
Rights of the Accused ................. 286 RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT .........286 RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM .....................................286
5
TABLE OF CONTENTS
NON-APPEARANCE DURING PRE-TRIAL ............................................................ 302 PRE-TRIAL ORDER ................................ 302 REFERRAL OF SOME CASES FOR COURT ANNEXED MEDIATION AND JUDICIAL DISPUTE RESOLUTION ...................... 303
NATURE OF SEARCH WARRANT ...........319 ARREST AND SEARCH WARRANTS DISTINGUISHED ................................. 320 APPLICATION FOR SEARCH WARRANT; WHERE FILED...................................... 321 PROBABLE CAUSE ................................ 323 PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS......... 323 PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED ........................................................... 324 PROPERTY TO BE SEIZED .................... 325 EXCEPTIONS TO SEARCH WARRANT REQUIREMENT .................................. 325 REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE ..................................... 327 WAIVER OF IMMUNITY AGAINST UNREASONABLE SEARCH AND SEIZURE ........................................................... 329
Trial............................................... 303 INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW .............. REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS ....................................... 303 TRIAL IN ABSENTIA ..............................304 REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD.........................304 REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS ............................................304 EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS .................................305 DEMURRER TO EVIDENCE ....................305
Provisional Remedies ..................329 NATURE ................................................ 329 KINDS OF PROVISIONAL REMEDIES .... 329
Judgment ..................................... 307 REQUISITES OF A JUDGMENT .............. 307 CONTENTS OF JUDGMENT ................... 307 PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION IN ABSENTIA...........................................309 WHEN DOES JUDGMENT BECOME FINAL ............................................................ 310
New Trial or Consideration ........... 311 GROUNDS FOR NEW TRIAL ................... 311 GROUNDS FOR RECONSIDERATION ..... 311 REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE ..................... 311 EFFECTS OF GAINING NEW TRIAL FOR CONSIDERATION ................................ 311 APPLICATION OF THE NEYPES DOCTRINE IN CRIMINAL CASES ............................312
Appeal ........................................... 313 EFFECT OF AN APPEAL .......................... 313 WHERE TO APPEAL ................................ 313 HOW APPEAL IS TAKEN ......................... 313 EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED............................................ 319 GROUNDS FOR DISMISSAL OF APPEAL 319
Search and Seizure ...................... 319 6
TABLE OF CONTENTS
QUALIFICATIONS OF A WITNESS ......... 354 COMPETENCY VS. CREDIBILITY ........... 354 DISQUALIFICATIONS OF WITNESSES .. 355 EXAMINATION OF A WITNESS ..............361 ADMISIONS AND CONFESSIONS ......... 364 HEARSAY RULE ..................................... 368 OPINION RULE ..................................... 374 CHARACTER EVIDENCE ........................ 375 RULE ON EXAMINATION OF A CHILD WITNESS ............................................ 376
EVIDENCE General Principles of Evidence .. 332 CONCEPT OF EVIDENCE ....................... 332 APPLICABILITY ...................................... 332 EVIDENCE IN CIVIL CASES VS. EVIDENCE IN CRIMINAL CASES .......................... 332 PROOF VS. EVIDENCE .......................... 333 FACTUM PROBANS VERSUS FACTUM PROBANDUM ..................................... 333 3 CLASSES OF EVIDENCE ACCORDING TO FORM.................................................. 333 ADMISSIBILITY OF EVIDENCE ............... 333 BURDEN OF PROOF AND BURDEN OF EVIDENCE ........................................... 335 PRESUMPTIONS ................................... 336 LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE ..................................... 339 QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) ............. 339
Offer and Objection .................... 379 OFFER OF EVIDENCE ............................ 379 WHEN TO MAKE AN OFFER ................. 380 OBJECTION ...........................................380 STRIKING OUT AN ANSWER ..................381 TENDER OF EXCLUDED EVIDENCE ....... 382
Judicial Notice and Judicial Admissions .................... 340 WHAT NEED NOT BE PROVED .............340 MATTERS OF JUDICIAL NOTICE ...........340 WHEN HEARING NECESSARY ..............340 JUDICIAL ADMISSIONS ........................ 341 JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCES .................................... 342
Object (Real) Evidence ............... 343 NATURE OF OBJECT EVIDENCE ........... 343 REQUISITES FOR ADMISSIBILITY ......... 343 CATEGORIES OF OBJECT EVIDENCE ....344 CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 .............................................................. 345 RULES ON DNA EVIDENCE.................... 345
Documentary Evidence ...............347 MEANING OF DOCUMENTARY EVIDENCE ............................................................ 347 REQUISITES FOR ADMISSIBILITY ........ 347 BEST EVIDENCE RULE .......................... 347 RULES ON ELECTRONIC EVIDENCE .....348 PAROL EVIDENCE RULE .......................350 AUTHENTICATION AND PROOF OF DOCUMENTS ..................................... 351
Testimonial Evidence ................. 354 7
TABLE OF CONTENTS
Evidence ....................................... 393
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
PRECAUTIONARY PRINCIPLE ............... 393 DOCUMENTARY EVIDENCE .................. 393
Scope and Applicability of the Rule ...................................................... 384 Civil Procedure............................. 385 WHO MAY FILE ...................................... 385 PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION .............. 385 TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) ............ 385 PRE-TRIAL CONFERENCE; CONSENT DECREE ............................................. 385 PROHIBITED PLEADINGS AND MOTIONS ............................................................ 385 JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT ............................... 387 PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS ................ 387 STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION ................................. 387
Special Civil Actions .................... 388 WRIT OF KALIKASAN ............................ 388 PROHIBITED PLEADINGS AND MOTIONS ............................................................ 388 DISCOVERY MEASURES ........................ 389 WRIT OF CONTINUING MANDAMUS .... 389
Criminal Procedure ...................... 391 WHO MAY FILE ..................................... 391 INSTITUTION OF CRIMINAL AND CIVIL ACTION .............................................. 391 ARREST WITHOUT WARRANT, WHEN VALID ................................................. 391 STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION ................................ 391 PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS ........ 391 BAIL ...................................................... 392 ARRAIGNMENT AND PLEA .................. 392 PRE-TRIAL ............................................ 392 SUBSIDIARY LIABILITIES ...................... 393
8
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
General Principles
REMEDIAL LAW
Prospectivity/ Retroactivity
The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)].
CONCEPT OF REMEDIAL LAW
Remedial law is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion [Bustos v. Lucero, 81 Phil. 640].
Rules of procedure 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)]. The Rules of Court shall govern cases brought after they take effect, and also all further proceedings then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114]
Remedial statute or statutes: (1) Relating to remedies or modes of procedure; (2) Do not take away or create vested rights; (3) BUT operate in furtherance of rights already existing. [Riano citing Systems Factor Corporation v NLRC (2000)]
Source
SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW
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.
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]
The Rules of Court, promulgated by authority of law, have the force and effect of law, if not in conflict with positive law [Inchausti & Co v de Leon (1913)]. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Shioji v Harvey (1922)].
Substantive Law It is that part of the law which creates, defines, or regulates rights, concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs
Applicability
The Rules of Court is applicable in ALL COURTS, EXCEPT as otherwise provided by the SC [Rule 1, Sec. 2]. It governs the procedure to be observed in CIVIL or CRIMINAL actions and SPECIAL proceedings [Rule 1, Sec. 3].
It makes vested rights possible
It does not apply to the following cases: (1) Election cases, (2) Land registration cases, (3) Cadastral cases (4) Naturalization cases, (5) Insolvency proceedings (6) Other cases not herein provided for
It is prospective in application It cannot be enacted by the SC
Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4]
PAGE 1
Remedial Law It refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained It is also called Adjective Law It has no vested rights It governs acts and transactions which took place (retroactive) The SC is expressly empowered to promulgate procedural rules
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) 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 case [Neypes v CA (2005)]
RULE MAKING POWER OF THE SUPREME COURT
Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights, which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Sec. 1, Art. VIII, 1987 Constitution)
Power to Suspend Remedial Laws (1) It is within the inherent power of the Supreme Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)]. (2) When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice, their suspension is justified [Republic v CA (1978)]. (3) There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. The matter is discretionary upon the Court [Republic v Imperial Jr. (1999)]. (4) The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)]. (5) Procedural rules are not to be belittled or dismissed simply because their nonobservance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Polanco v Cruz (2009)].
The power of judicial review is the SC’s power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional Sec. 5(5), Art. VIII, of the 1987 Constitution provides that that the Supreme Court shall have the power to: (1) promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts; (2) admission to the practice of law; (3) the Integrated Bar; (4) and legal assistance to the underprivileged
LIMITATIONS ON THE RULEMAKING POWER OF THE SUPREME COURT
Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power: (1) That the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; (2) That the rules shall be uniform for courts of the same grade; and (3) That the rules shall not diminish, increase or modify substantive rights.
NATURE OF PHILIPPINE COURTS MEANING OF A COURT
POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES
A court is an organ of the government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice. Generally, the term describes an organ of the government consisting of one person or of several persons, called upon and authorized to administer justice. It is also the place where justice is administered. [Riano citing Black’s and Am. Jur. and C. J. S.]
Power to Amend Remedial Laws (1) The constitutional faculty of the Court to promulgate rules of practice and procedure 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)].
PAGE 2
UP LAW BOC
CIVIL PROCEDURE
COURT AS DISTINGUISHED FROM A JUDGE Court Judge A tribunal officially An officer of such assembled under tribunal authority of law An organ of the government with a The judge is the one personality separate who “sits” in court from the person or judge A being in imagination A physical and comparable to a natural person corporation May be considered an A public officer office
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. Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado] CONSTITUTIONAL AND STATUTORY COURTS Constitutional courts – Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionallymandated court but created by statute.
The circumstances of the court are not affected by the circumstance that would affect the judge. 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. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)].
CLASSIFICATION COURTS
OF
REMEDIAL LAW
Statutory courts – Those created, organized and with jurisdiction exclusively determined by law. [Regalado] COURTS OF LAW AND EQUITY Courts of Law- Those courts which administer the law of the land. They settle cases according to law.
PHILIPPINE
(1) Courts of original and appellate jurisdiction (2) Courts of general and special jurisdiction (3) Constitutional and statutory courts (4) Courts of law and equity (5) Superior and Inferior Courts (6) Courts of record and not of record
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 [U.S. v. Tamparong (1998)]
COURTS OF ORIGINAL AND APPELLATE JURISDICTION Courts of original jurisdiction – Those courts in which, under the law, actions or proceedings may be originally commenced.
SUPERIOR AND INFERIOR COURTS Superior courts – Courts which have the power of review or supervision over another and lower court.
Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]
Inferior courts – Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado]
PAGE 3
UP LAW BOC
CIVIL PROCEDURE
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. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. All Philippine courts, including inferior courts, are now courts of record. [Riano]
REMEDIAL LAW
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY
The principle holds that 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)].
Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein.
The doctrine of non-interference 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)].
PRINCIPLE OF JUDICIAL HIERARCHY
The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under the judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. [Riano citing Santiago v. Vasquez (1993)]
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
The principle is an established policy necessary to avoid inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court’s docket [Lim v. Vianzon (2006)].
Exception: The doctrine of judicial stability does not apply where a third party claimant is involved
When the doctrine/principle may be disregarded: A direct recourse of the Supreme Court’s original jurisdiction to issue writs (referring to the writs of certiorari, prohibition, or mandamus) should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. [Mangahas v. Paredes (2007)]. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano].
Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)].
Jurisdiction JURISDICTION IN GENERAL
Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Constitution] (1) To settle actual controversies involving rights which are legally demandable and enforceable; (2) To determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality. All courts exercise judicial power. Only the Supreme Court is the court created by the Constitution [Art 8, Sec. 1, Constitution]. The Sandiganbayan is a Constitutionally mandated court, but it is created by statute. [PD 1486] PAGE 4
UP LAW BOC
CIVIL PROCEDURE
REQUISITES FOR A VALID EXERCISE OF JURISDICTION
(1) Court must have jurisdiction over the persons of the parties (2) It must have jurisdiction over the subject matter of the controversy (3) It must have jurisdiction over the res (4) It must have jurisdiction over the issues
JURISDICTION PARTIES
OVER
REMEDIAL LAW
JURISDICTION OVER SUBJECT MATTER
THE
JURISDICTION VERSUS EXERCISE OF JURISDICTION
THE
Jurisdiction over the subject matter is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs [Riano citing CJS]. It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz (1941)]
THE
The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant.
Jurisdiction - the authority to hear and determine a cause — the right to act in a case. [Arranza v. BF Homes (2000)].
The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions.
‘Exercise of Jurisdiction’: the exercise of this power or authority
How jurisdiction over the PLAINTIFF is acquired - Jurisdiction over the plaintiff is acquired by 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)].
Jurisdiction is distinct from the exercise thereof. Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Herrera v. Baretto et al (1913)]
How jurisdiction over the DEFENDANT is acquired - Acquired by the (1) Voluntary appearance or submission by the defendant or respondent to the court or (2) By coercive process issued by the court to him, generally by the service of summons [de Joya v. Marquez (2006), citing Regalado]
ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT Error of jurisdiction
NOTE: In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. CA (2005)].
It is one where the act complained of was issued by the court without or in excess of jurisdiction [Cabrera v. Lapid (2006)].
Error of judgment It is one which the court may commit in the exercise of its jurisdiction [Cabrera v. Lapid (2006)]. It includes errors of procedure or mistakes in the court’s mistakes in the court’s findings [Banco Filipino Savings v. CA (2000)]
Correctible only by the Correctible by appeal extraordinary writ of [Cabrera v Lapid certiorari [Cabrera v (2006)] Lapid (2006)] Ground for reversal only if it is shown that Renders a judgment prejudice has been void or voidable [Rule 16 caused [Banco Sec. 1, Rule 65] Español-Filipino v Palanca (1918)] PAGE 5
UP LAW BOC
CIVIL PROCEDURE
How conferred and determined: (1) Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court.
REMEDIAL LAW
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)].
(2) It is conferred only by the Constitution or the law. (3) Jurisdiction CANNOT be: (a) Fixed by agreement of the parties; (b) Cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties; (c) Neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)]. (d) Cannot be subject to compromise [Civil Code, Art 2035]
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)]
(4) Jurisdiction over the subject matter is determined by the allegations of the complaint and the reliefs prayed for. [Gulfo v. Ancheta (2012)]
DOCTRINE OF JURISDICTION
ADHERENCE
OF
Also known as doctrine of continuity of jurisdiction
(5) It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. [Sindico v. Diaz (2004)].
The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case [Bantua v. Mercader (2001)]. 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 [Riano citing People v. Cawaling (1998)].
(6) Once attached to a court, it cannot be ousted by subsequent statute. (a) Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)] (7) The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. CA (1992)](2008 Bar Exam). (a) Exception: Non-payment of docket fee does not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. [Go v. Tong (2003)]
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. [Sec. 1, Rule 9] 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)]. 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. PAGE 6
UP LAW BOC
CIVIL PROCEDURE
Lack of jurisdiction over subject matter is a ground for a motion to dismiss. If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Riano citing Sec. 1(b) and 6 of Rule 16].
(2) Stipulation of the parties as when in the pre-trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case. (3) Waiver or failure to object to the presentation of 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. The issues tried shall be treated in all respects as if they had been raised in the pleadings.
Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common reason that the court cannot remand the case to another court with the proper jurisdiction. Its only power is to dismiss and not to make any other order.
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION
Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action.
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)]
Jurisdiction over the res may be acquired by the court (1) By placing the property or thing under its custody (custodia legis) (a) The seizure of the thing under legal process whereby it is brought into actual custody of law (b) Example: attachment of property. (2) Through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction (a) Institution of a legal proceeding wherein the power of the court over the thing is recognized and made effective (b) Example: suits involving the status of the parties or suits involving the property in the Philippines of nonresident defendants.
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 ISSUES
OVER
REMEDIAL LAW
THE
It is the power of the court to try and decide issues raised in the pleadings of the parties. 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. Where there is no disputed point, there is no issue.
JURISDICTION OF THE METROPOLITAN TRIAL COURTS AND MUNICIPAL TRIAL COURTS JURISDICTION OF THE MTCs IN CIVIL CASES
Generally, jurisdiction over the issues is conferred and determined by: (1) The pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or law.
Exclusive Original Jurisdiction (1) If the amount involved does not exceed P300,000 outside Metro Manila or does not exceed P400,000 in Metro Manila in the following cases: (a) Actions involving personal property
PAGE 7
UP LAW BOC
CIVIL PROCEDURE
(b) Probate Proceeding (testate and intestate) based on gross value of the estate (c) Admiralty and maritime cases (d) Demand for money
REMEDIAL LAW
(iii)From the corresponding declaration of the real property
tax
NOTE: MTC decisions in cadastral and land registration cases are appealable in the same maner as RTC decisions
Note: Do not include Interest, Damages of whatever kind, Attorney’s fees, Litigation Expenses, and Costs (IDALEC). However, in cases where 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 in determining the jurisdiction of the court.
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
(2) 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
JURISDICTION OVER SMALL CLAIMS, SUMMARY PROCEDURE, AND BARANGAY CONCILIATION
(3) Inclusion and exclusion of voters
JURISDICTION CLAIMS
OVER
SMALL
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].
(4) Those governed by the Rules on Summary Procedure (a) Forcible entry and unlawful detainer (FEUD) (i) With jurisdiction to resolve issue of ownership to determine ONLY issue of possession (provisional only) (ii) Irrespective of the amount of damages or unpaid rentals sought to be recover (iii)Where attorney’s fees are awarded, the same shall not exceed P20,000 (b) 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.
Actions covered are (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) 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 [Sec. 4, AM 08-8-7-SC]. 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].
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 (ii) By agreement of the respective claimants, if there are more than one PAGE 8
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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 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.
CASES COVERED BY RULES ON SUMMARY PROCEDURE
All cases of forcible entry and unlawful detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney‘s fees are awarded, the same shall not exceed P20,000; 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. Prohibited Pleadings: (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. [Sec. 14, Prohibited pleadings and motions]
CASES COVERED BY THE RULES ON BARANGAY CONCILIATION
The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes 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
Note: It is a condition precedent under Rule 16; can be dismissed but without prejudice
PAGE 9
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Note: The exclusion of the term “damages of whatever kind” in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. 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 in determining the jurisdiction of the court. [Admin Circ. 09-94]
JURISDICTION OF THE REGIONAL TRIAL COURTS, FAMILY COURTS, AND SHARI’A COURTS JURISDICTION OF THE RTC IN CIVIL CASES
General Original Jurisdiction: All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions
(4) All actions involving the contract of marriage and family relations
Exclusive Original Jurisdiction (1) The action is incapable of pecuniary estimation (a) Such as rescission of contract, action to revive judgment, declaratory relief (1st part), support, expropriation) (b) If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)] (c) If the basic issue is something other than the right to recover a sum of money, if 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)]
JURISDICTION OF COURTS [RA 8369]
FAMILY
(a) Petitions for guardianship, custody of children and habeas corpus involving children (b) Petitions for adoption of children and the revocation thereof (c) 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 (d) Petitions for support and/or acknowledgment (e) Summary judicial proceedings brought under the provisions of EO 209 (Family Code) (f) 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 (1986) and other related laws (g) Petitions for the constitution of the family home
(2) Title to, possession of, or interest in, real property with assessed value exceeding P20,000 outside Metro Manila, or exceeds P50,000 in Metro Manila Except: Forcible entry and unlawful detainer cases (3) If the amount involved exceeds P300,000 outside Metro Manila or exceeds P400,000 in Metro Manila in the following cases: (a) Admiralty and maritime cases (b) Matters of Probate (testate and intestate) (c) Other actions involving personal property (d) Demand for money
NOTE: In areas where there are no Family Courts, the above-enumerated cases shall be adjudicated by the RTC (RA 8369)
PAGE 10
UP LAW BOC
CIVIL PROCEDURE
(5) To hear and decide intra-corporate controversies, as per 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, 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.
REMEDIAL LAW
(3) With the SC, CA and Sandigabayan in petitions for writs of habeas data and amparo (4) With Insurance Commissioner – claims not exceeding P100,000 Appellate Jurisdiction over cases decided by lower courts in their respective territorial jurisdictions EXCEPT decisions of lower courts in the exercise of delegated jurisdiction. 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 quasijudicial body and other special cases in the interest of justice.
JURISDICTION OF THE SHARI’A COURTS
Exclusive Jurisdiction (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
Concurrent Jurisdiction (1) With the Supreme Court in actions affecting ambassadors, other public ministers and consuls (2) With the SC and CA in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for quo warranto, habeas corpus, and writ of continuing mandamus on environmental cases
Concurrent Jurisdiction (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 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the MTC. PAGE 11
UP LAW BOC
CIVIL PROCEDURE
(3) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims
(d) Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution (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)
Cases Cognizable (1) Offenses defined and punished under PD 1083 (2) Disputes relating to: (a) Marriage (b) Divorce (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) (g) Restitution of marital rights (3) Disputes relative to communal properties
NOTE: Without the office, the crime cannot be committed. 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.
Note: 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.
JURISDICTION OF SANDIGANBAYAN
REMEDIAL LAW
Concurrent Original Jurisdiction with SC, CA, and RTC for petitions for writs of habeas data and amparo
THE
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
Original Jurisdiction in all cases involving: (1) Violations of RA 3019 (Anti-Graft and Corrupt Practices Act) (2) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act) (3) Sequestration cases (E.O. Nos. 1,2,14,14-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
JURISDICTION OF THE COURT OF TAX APPEALS
[UNDER RA 9282 and RULE 5, AM 05-11-07 CTA] Exclusive Original or Appellate Jurisdiction to Review by Appeal: (1) Decisions of CIR 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;
PAGE 12
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, 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 (a) 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 (b) other matters arising under the Customs law or other laws, part of laws or special 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 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 product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling 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.
specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate); (2) In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC.
Exclusive Original Jurisdiction (1) 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
Concurrent Original Jurisdiction (1) With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, CBAA, other quasi-judicial agencies mentioned in Rule 43, and the NLRC (however, this should be filed first with the CA as per St. Martin Funeral Home case), and writ of kalikasan.
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. (2) In tax collection cases (1) 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 (2) 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.
JURISDICTION OF THE COURT OF APPEALS JURISDICTION OF THE APPEALS IN CIVIL CASES
COURT
OF
Exclusive Original Jurisdiction in actions for annulment of judgments of the RTC
PAGE 13
UP LAW BOC
CIVIL PROCEDURE
(2) With the SC and RTC to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its appellate jurisdiction, and writ of continuing mandamus on environmental cases. (3) With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data where the action involves public data or government office
REMEDIAL LAW
(3) With CA, RTC and Sandiganbayan for petitions for writs of amparo and habeas data (4) Concurrent original jurisdiction with the RTC in cases affecting ambassadors, public ministers and consuls. Appellate Jurisdiction (1) By way of petition for review on certiorari (appeal by certiorari under Rule 45) against CA, Sandiganbayan, RTC on pure questions of law and CTA in its decisions rendered en banc. (2) 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 (3) All cases in which the jurisdiction of any court is in issue; (4) All cases in which an error or question of law is involved (5) The SC may resolve factual issues in certain exceptional circumstances [Josefa v. Zhandong, 2003] (a) The conclusion is grounded on speculations/ surmises /conjectures (b) The inference is manifestly mistaken/absurd/impossible; (c) There is grave abuse of discretion; (d) The judgment is based on a misapprehension of facts; (e) The findings of fact are conflicting; (f) There is no citation of specific evidence on which the factual findings are based; (g) The finding of absence of facts is contradicted by the presence of evidence on record; (h) The findings of the CA are contrary to those of the trial court; (i) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (j) The findings of the CA are beyond the issues of the case; (k) Such findings are contrary to the admissions of both parties.
Exclusive Appellate Jurisdiction (a) By way of ordinary appeal from the RTC and the Family Courts. (b) By way of petition for review from the RTC rendered by the RTC in the exercise of its appellate jurisdiction. (c) By way of petition for review from the decisions, resolutions, orders or awards of the CSC, CBAA and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in administrative disciplinary cases. (d) Over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction; this is because decisions of MTCs in these cases are appealable in the same manner as decisions of RTCs.
JURISDICTION OF THE SUPREME COURT JURISDICTION OF THE SUPREME COURT IN CIVIL CASES Exclusive Original Jurisdiction in petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan Concurrent Original Jurisdiction (1) With Court of Appeals in petitions for certiorari, prohibition and mandamus against the RTC, CSC, Central Board of Assessment Appeals, NLRC, Quasijudicial agencies, and writ of kalikasan, all subject to the doctrine of hierarchy of courts. (2) With the CA and RTC in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to the doctrine of hierarchy of courts. PAGE 14
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Ordinary or Special – both are governed by the rules of ordinary civil actions, subject to the specific rules prescribed for a special civil action (a) Special (b) Ordinary – may be classified as: (i) 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 (ii) As to object – or against which the action is directed, actions may be classified as: (a) In personam; (b) In rem; or (c) Quasi in rem (iii) As to cause or foundation (a) Real, or (b) Personal
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].
Commencement of Actions to Trial ACTIONS Actions in General: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos v. Vda. De Caparas, (1959)] An action is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law. Determinative fact which converts a claim into an action or suit is the filing of the same with a court of justice. (Herrera)
Ordinary Civil Actions: An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2] Special Civil Actions: A special civil action is one that is subject to the specific rules prescribed for a special civil action; it is also governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]
ACTION v. CAUSE OF ACTION Cause of Action Action A cause of action is the basis of the action Ordinary suit in a court filed [Rule 2, Sec.1] of justice, by which one party prosecutes Fact or combination of another for the facts which affords a enforcement or party a right to judicial protection of a right, interference in his or the prosecution or behalf. [Into v. Valle redress of a wrong (2005)]
Criminal Actions: A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS PROCEEDINGS
vs.
SPECIAL
A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Rule 1, Sec. 3(a) par 1]
KINDS OF ACTION (1) Civil or Criminal (a) Civil – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (b) Criminal – one by which the State prosecutes a person for an act or omission punishable by law
A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1, Sec. 3 (c)]
PAGE 15
UP LAW BOC
CIVIL PROCEDURE
found, at the election of the plaintiff. [Rule 4, Sec.2]
Action
Special Proceeding As to Parties Involves 2 or more Involves at least 1 parties party or 2 or more parties in proper cases As to cause of action Involves a right and a May involve a right, violation of such right but there need not by the defendant be a violation of this which causes some right damage/prejudice upon the plaintiff As to formalities Requires the Requires no such application of legal formalities, as it remedies in may be granted upon accordance with the application prescribed rules As to governing rules Ordinary rules of procedure
REMEDIAL LAW
NOTE: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that the action must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, paritition, foreclosure or mortgage or any interest in real property. [Riano] Real action
Ownership or possession of real property is involved
Special rules of procedure Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated
As to appeal from an interlocutory Order Cannot be directly and immediately appealed Can be immediately to the appellate court and directly until after final appealed to the judgment on the appellate court merits
PERSONAL ACTIONS AND REAL ACTIONS
Personal Action Personal property is sought to be recovered or damages for breach of Contract or the enforcement of a contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides, at the plaintiff’s option
Mixed action
Both real and personal properties are involved
Founded on both The rules on venue of real actions govern
LOCAL AND TRANSITORY ACTIONS
Real Actions: Actions affecting title to or possession of real property, or interest therein. [Rule 4, Sec. 1 par 1] Personal Actions: All other actions are personal actions. [Rule 4, Sec.2]
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)
Importance of Distinction: For purposes of determining venue of the action [Riano] (1) Real actions shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec.1] (2) Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be
E.g. Action to recover E.g. Action to recover real property sum of money
PAGE 16
UP LAW BOC
CIVIL PROCEDURE
If action is founded on privity of contract between parties, then the action is transitory
The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)]
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
The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]
ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM Action In Rem
Directed against the thing itself
Action In Personam Directed against particular persons
Action Quasi In Rem
INDEPENDENT CIVIL ACTIONS Rule 111, Sec 3: When civil action may proceeded independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.
Directed against particular persons
Jurisdiction Jurisdiction over over the the person of Jurisdiction person of defendant is not over the person the required as long of defendant defendant as jurisdiction required not over the res is required required Proceeding to subject the Proceeding Action to interest of a to impose a named determine responsibility or defendant over the state or liability upon a a particular condition person directly property to an of a thing obligation or lien burdening it Action In Rem
Action In Personam
Judgment is Judgment binging only is binding upon on the impleaded whole parties or their world successors in interest E.g. E.g. Specific Probate performance, proceeding, action for cadastral breach of proceeding contract
REMEDIAL LAW
CAUSE OF ACTION
Cause of Action - A cause of action is the act or omission by which a party violates a right of another. [Rule 2, Sec.2] Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1] A cause of action stems from the sources of obligations under Art. 1156, CC - Law, Contract, Quasi-contract, Acts and omissions punishable by law and Quasi-delict. [Sagrada Orden etc v. National Coconut Corporation (1952)]
Action Quasi In Rem Judgment binging upon particular persons
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)]
E.g. Action for partition; foreclosure of real estate mortgage
PAGE 17
UP LAW BOC
CIVIL PROCEDURE
RIGHT OF ACTION vs. CAUSE OF ACTION [Regalado] 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
REMEDIAL LAW
TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION
Cause of Action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff
Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. de Leo (2005)]
SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS
Definition - The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4]
The delict or wrong
Determined by the Whether such acts give averments in the him right of action pleading regarding determined by the acts committed substantive law by the defendant
The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. [Regalado] The test of singleness of cause of action lies in the singleness of the delict or wrong violating the rights of one person.
There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA (1985)]
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)]
FAILURE TO STATE CAUSE OF ACTION
There is a failure to state a cause of action if the pleading asserting the claim states no cause of action. This is a ground for a motion to dismiss. [Rule 16, Sec.1(g)]
Effects: (1) 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, Sec.4] (2) Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or (3) A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata. (4) A Motion to Dismiss under Rule 16 (litis pendentia or res judicata) may be filed in order that the complaint may be dismissed.
It is submitted that the failure to state a cause of action does not mean that the plaintiff has “no cause of action.” It only means that the plaintiff’s allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. [Riano] There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. [Riano] A failure to state a cause of action is not the same as an absence or a lack of cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one’s stated cause of action. [Riano]
Ratio: A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] (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); PAGE 18
UP LAW BOC
CIVIL PROCEDURE
(3) To avoid the costs and expenses incident to numerous suits. [City of Bacolod v. SM Brewery (1969)]
REMEDIAL LAW
(4) TOTALITY RULE - 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.
JOINDER OF CAUSES OF ACTION
MISJOINDER ACTION
It is the assertion of as many causes of action as a party may have against another in one pleading alone. It is also the process of uniting two or more demands or rights of action in one action. [Riano citing Rule 2, Sec. 5 and CJS]
OF
CAUSES
OF
[Rule 2, Sec. 6]
Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action. However, this rule exists only when the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same. This is because if the court has no jurisdiction to try the misjoined action, then the same must be severed and if not so severed, any adjudication rendered by the court with respect to the same would be a nullity. [Ada v. Baylon (2012)]
By a joinder of actions, or more properly, a joinder of causes of action is meant the uniting of two or more demands or rights of action in one action, the statement of more than one cause of action in a declaration [Ada v. Baylon (2012)] Splitting of Causes Joinder of Causes There is a single Contemplates several cause of action causes of action Prohibited Encouraged It causes multiplicity It minimizes of suits and double multiplicity of suits vexation on part of and inconvenience on defendant the parties Ratio: To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost [Ada v. Baylon (2012)]
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).
The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovi v. Sarte, (1917)]
In case of misjoinder of causes of action, the cause of action erroneously joined need only be separated and dismissed, without affecting the action with regard to other causes of action (Regalado).
Joinder shall not include special civil actions governed by special rules. [Ada v. Baylon (2012)]
PARTIES TO CIVIL ACTIONS
Requisites [Rule 2, Sec. 5]: (1) The party joining the causes of action must 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/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTC’s jurisdiction and the venue lies therein;
REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION: For a Person to be a Party to a Civil Action: (1) He must be a natural or juridical person or an entity authorized by law (2) He must have legal capacity to sue; and (3) He must be the real party-in-interest A party must be a natural or juridical person or an entity authorized by law Only natural and juridical persons may be parties See Art. 44, NC
PAGE 19
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PARTIES TO A CIVIL ACTION
Entities authorized by law may also be parties, e.g.: (a) Partnership has a juridical personality separate and distinct from that of each of the partners, even in case of failure to comply with the requirements in Art 1772 NCC [Art. 1768 NCC] (b) Labor organizations organized in accordance with law may file a complaint or petition in court in representation of its members [Art 242 LC] (c) As to properties of the Roman Catholic Church, the Archbishop or diocese to which they belong may be a party [Ponce v. Roman Catholic]
Plaintiff – one having an interest in the matter of the action or in obtaining the relief demanded. The term may either refer to the claiming party, counter-claimant, crossclaimant, or third-party plaintiff Defendant – one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. Term may also include: (1) An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto [Sec. 10, Rule 3] (2) The original plaintiff becoming a defendant to the original counterclaim of defendant; and (3) One necessary to a complete determination or settlement of the questions involved therein
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
REAL PARTIES IN INTEREST
Under Sec. 4, Rule 8, legal capacity to sue must be averred
Who is a real party-in-interest: [Rule 3, Sec. 2] (1) The party who stands to be benefited/injured by the judgment in the suit; (2) The party entitled to the avails of the suit.
Lack of legal capacity to Lack of legal sue personality to sue The plaintiff’s general disability to sue, such as The plaintiff is not on account of minority, the real party in insanity, incompetence, interest lack of juridical personality or any other general disqualifications It can be used as ground for a MTD It can be a ground for a based on the MTD [Rule 16 (1) (d)] failure of complaint to state a cause of action. [Rule 16 (1) (g)]
Rules: (1) Every action must be prosecuted or defended in the name of the real party in interest. [Rule 3, Sec.2] (2) The party’s interest must be direct, substantial and material [Sumalo v. Litton (2006)]. (3) Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4] (4) 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] (5) Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)] (6) If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3, Sec. 18]
REAL- PARTY IN INTEREST Interest within the meaning of the Rules of Court 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)]
PAGE 20
UP LAW BOC
CIVIL PROCEDURE
Failure to name real party in interest (a) Effect: a motion to dismiss may be filed on the ground that the complaint states no cause of action (i) If a complaint is filed for and in behalf of a plaintiff who is not authorized to do so, the complaint is not deemed filed (b) Remedies: (i) Amendment of pleadings (Alonso v. Villamor, 1910); or (ii) Complaint may be deemed amended to include the real party-in-interest (Balquidra v. CFI Capiz, 1977) (c) Exception: A 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)
REMEDIAL LAW
General Rule: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. Exception: If the contract involves things belonging to the principal. [Art. 1883, CC] NECESSARY PARTIES Who: One who is not indispensable 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] Indispensable parties v. Necessary parties Indispensable parties Necessary parties [Rule [Rule 3, Sec. 7] 3, Sec. 8] Should be joined Must be joined under whenever possible; the any and all action can proceed conditions, his even in their absence presence being a sine because their interest qua non for the is separable from that exercise of judicial of the indispensable power party The case may be determined in court No valid judgment if but the judgment indispensable party is therein will not resolve not joined. the entire controversy if a necessary party is not joined They are those with They are those whose such an interest in the presence is necessary controversy that a to adjudicate the whole final decree would controversy but whose necessarily affect interests are so far their rights so that separable that a final the court cannot decree can be made in proceed without their their absence without presence. affecting them.
INDISPENSABLE PARTIES Who: An indispensable party is a real party-ininterest without whom no final determination can be had of an action. [Rule 3, Sec.7] A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. [Riano] The joinder of a party becomes compulsory when the one involved is an indispensable party. [Riano citing Rule 3, Sec.7] A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. [Riano] REPRESENTATIVE AS PARTIES Who: Those acting in fiduciary capacity, such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. [Rule 3, Sec. 3]
Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader is under obligation to: (1) Set forth the name of the necessary party, if known, and (2) State the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1]
The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.
PAGE 21
UP LAW BOC
CIVIL PROCEDURE
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3]
REMEDIAL LAW
Effect of Absence of Indispensable Parties: (1) It is the duty of the court to stop the trial and to order the inclusion of such party [Cortez v. Avila]. Such an order is unavoidable (2) Absence of an indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the present parties but even as to those present
INDIGENT PARTIES Who: An indigent is one who has no money or property sufficient and available for food, shelter, and basic necessities [Rule 3, Sec. 21]
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.
Authority to Litigate as Indigent Party May be granted upon an ex parte application and hearing It shall include an exemption from payment of docket and other lawful fees (e.g. fees for TSN)
Requisites of Permissive Joinder: (1) Right to relief arises out of the same transaction or series of transactions (a) Transaction - not only a stipulation or agreement but any event resulting in wrong, without regard to whether the wrong has been done by violence, neglect, or breach of contract (b) Series of transaction – transactions connected with the same subject of the action (2) There is 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
NOTE: The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides. Adverse party may contest: Authority may be contested by the adverse party at any time before judgment is rendered If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court
Distinguished from Joinder of Causes of Action In joinder of causes of action, it is enough if the cause of action arises out of the same contract Unlike permissive joinder of parties, in joinder of causes of action, there is no need for a common question of fact or law
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]
MISJOINDER AND NON-JOINDER OF PARTIES
COMPULSORY AND PERMISSIVE JOINDER OF PARTIES
A party is misjoined when he is made a party to the action although he should not be impleaded.
COMPULSORY JOINDER OF INDISPENSABLE PARTIES [Rule 3, Sec. 7] Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants
A party is not joined when he is supposed to be joined but is not impleaded in the action. [Riano]
Joinder of INDISPENSABLE PARTIES are mandatory
PAGE 22
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Effect: (1) Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Rule 3, Sec. 11] (a) Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)]. (b) In case of non-joinder of a necessary party, if the court should find the reason for such omission unmeritorious, it may order the inclusion of such omitted necessary party (2) 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]
If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)].
Objections to defects in parties: Objections to defects in parties should be made at the earliest opportunity. The moment such defect becomes apparent, a motion to strike the names of the parties must be made. Objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita (2005)]
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. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)]
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] There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar 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. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)]
Permissive Joinder of Parties There are multiple There is a single cause of causes of action action pertaining to separately belonging to numerous persons. several persons. Class Suit
CLASS SUIT Requisites: [Rule 3, Sec. 12] (1) Subject matter of the controversy is one of common/general interest to many persons; (2) The persons are so numerous that it is impracticable to join them all as parties (i.e. impracticable to bring them all before the court); (3) Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; (4) The representative sues/defends for the benefit of all.
Class Suit
Derivative Suit An action brought by minority shareholders in the name of the corporation to redress wrongs committed When the subject matter against it, for which the of the controversy is one directors refuse to sue. of common or general interest to many It is a remedy designed persons, and the parties by equity and has been are so numerous that it the principal defense of is impracticable to bring the minority them all before the shareholders against court, one or more may abuses by the majority. sue or defend for the benefit of all. [Rule 3, In a derivative action, the Sec. 12] real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim v. Lim Yu (2001))
Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12]
PAGE 23
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Counsel’s duty: (1) Inform court within 30 days after such death of the fact thereof; (2) Give the name and address of the legal representatives.
SUITS AGAINST ENTITES WITHOUT JURIDICAL PERSONALITY Requisites: [Rule 3, Sec. 15] (1) There are two or more persons not organized as a juridical entity; (2) They enter into a transaction; (3) A wrong is committed against a third person in the course of such transaction.
NOTE: Failure to comply with this duty is a ground for disciplinary action. Court’s duty: in case of death, the court if the action survives, shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased within a period of 30 days or within such time as may be granted. If there is notice of death, court should await appointment of legal representative; otherwise, subsequent proceedings are void. Period of filing of brief is suspended.
Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15] 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]
If no legal representative is named or if the one so name shall fail to appear within the specified period, the court may order the opposing party to procure the appointment of an executor or administrator for the estate.
EFFECT OF DEATH OF PARTY LITIGANT SURVIVAL OR DEATH OF ACTION The question as to whether an action survives or not depends on the nature of the action and the damage sued for (1) Causes of Action that SURVIVE the decedent (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 which DO NOT SURVIVE (a) The injury complained of is to the person (b) Property and property rights affected are incidental (c) E.g. actions to recover real and personal property or to enforce liens thereon
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)]. DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC OFFICER [Rule 3, Sec. 17] Requisites: (1) Public officer is a party to an action in his official capacity; (2) During the pendency of the action, he either dies/resigns or otherwise ceases to hold office; (3) It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, that there is a substantial need to continue/maintain the action and (4) The successor adopts/continues (or threatens to do so) his predecessor’s action (5) The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard.
Substitution of Parties: For causes of action that survive the death of the party, there is substitution of parties
PAGE 24
UP LAW BOC
ACTION ON CONTRACTUAL CLAIMS [Rule 3, Sec. 20]
CIVIL PROCEDURE
MONEY
REMEDIAL LAW
VENUE VERSUS JURISDICTION Venue
Jurisdiction Power of the court to Place where the action hear and decide a is instituted case Jurisdiction over the subject matter and over the nature of the May be waived action is conferred by law and cannot-be waived
Requisites: (1) The action must primarily be for recovery of money/debt or interest thereon; (2) The claim arose from express/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.
Procedural
The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment.
Substantive
Is fixed by law and May be changed by cannot be the subject the written agreement of the agreement of of the parties the parties Establishes a relation Establishes a relation between plaintiff and between the court defendant, or and the subject petitioner and matter respondent Not a ground for a Lack of jurisdiction motu propio dismissal over the subject (except in cases of matter is a ground for summary procedure; a motu proprio Rule 4, Rule on dismissal. Summary Procedure)
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. TRANSFER OF INTEREST DURING PENDENCY OF ACTION [Rule 3, Sec. 19] General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him.
VENUE OF REAL ACTIONS
(1) 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)] (2) 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)] (3) If the property is located at the boundaries of two places, file the case in either place (at the plaintiff’s option). (4) If the case involves two properties located in two different places: (a) If the properties are the object of the same transaction, file it in any of the two places; (b) If they are the objects of two distinct transactions, separate actions should be filed in each place unless properly joined.
Exception: When the substitution by or joinder of the transferee is ordered by court. The case will be 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.
VENUE
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)] 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)]
PAGE 25
UP LAW BOC
CIVIL PROCEDURE
VENUE OF PERSONAL ACTIONS
REMEDIAL LAW
WHEN THE RULES ON VENUE DO NOT APPLY [Rule 4, Sec. 4]
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.
(1) If a specific rule/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 parties have validly agreed (a) in writing (b) before the filing of the action (c) on the exclusive venue
NOTE: 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)]
EFFECTS OF STIPULATIONS ON VENUE
The residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. [Boleyley v. Villanueva]
To be binding, the parties must have agreed on the exclusive nature of the venue of any 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 aso 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)]
VENUE OF ACTIONS AGAINST NONRESIDENTS [Rule 5, Sec. 3]
The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is EXCLUSIVE. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. [Riano citing Spouse Lantin v. Lantion, (2006)]
Non-resident FOUND in the Philippines: (1) For personal actions – Where the plaintiff resides (2) For real actions – Where the property is located NOTE: The alternative venues granted to plaintiffs in Sec. 2, Rule 4 is not available to a non-resident
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 NOT FOUND in the Philippines: An action may be filed ONLY when the case involves: (1) Personal status of plaintiff – File at the place where plaintiff resides (2) Any property of said defendant located in the Philippines – File at the place where the property (or any portion thereof) is situated/found
OTHER RULES ON VENUE
Improper Venue - The Court may not motu propio dismiss an action on the ground of improper venue. [Dacoycoy v. IAC (1991)]
NOTE: When there is more than one defendant or plaintiff, the residences of the PRINCIPAL parties should be the basis for determining proper venue (Herrera)
Exception: In summary procedures
PAGE 26
UP LAW BOC
CIVIL PROCEDURE
Change of Venue - The SC has the power to change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, 1987 Constitution]
REMEDIAL LAW
(6) Complaint-in-intervention (7) Reply COMPLAINT [Rule 6, Sec. 3]
Waiver of Venue - Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong (1993)]
Definition - The pleading alleging the plaintiff’s cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause/s of action, not evidentiary facts or legal conclusions. Contents – Statement of ultimate facts on which the plaintiff relies for his claim: (1) It must be in a methodical and logical form (2) Plain, concise, and direct (3) Statement of mere evidentiary facts are omitted [Rule 8, Sec. 1]
Means of waiving venue: (1) Where parties validly agreed in writing before the filing of the action on the exclusive venue thereof [Rule 4, Sec 4 (b)]; and (2) Failure to raise improper venue as affirmative defense or in motion to dismiss
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)]
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] PLEADING v. MOTION Pleading Motion Purpose: to submit a Purpose: to apply for claim or defense for an order not included appropriate judgment in the judgment Cannot be initiatory as they are always May be initiatory made in a case already filed in court Always filed before May be filed even judgment after judgment Only 9 kinds of Any application for pleading are allowed relief not by a by the rules pleading is a motion May be oral when made in open court or Must be written in the course of a hearing or trial
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)] Non-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.
KINDS OF PLEADINGS
Test of Sufficiency of the Facts alleged in the Complaint: WON upon the averment of facts, a valid judgment may be properly rendered [Pamintan v. Costales (1914)].
Kinds of Pleadings Allowed [Rule 6, Sec. 2] (1) Complaint (2) Answer (3) Counterclaim (4) Cross-claim (5) 3rd-party Complaint PAGE 27
UP LAW BOC
CIVIL PROCEDURE
ANSWER [Rule 6, Sec. 4]
REMEDIAL LAW
Insufficient denial or denial amounting to admissions: (1) General denial; and (2) Denial in the form of a negative pregnant
Definition - The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim.
COUNTERCLAIM
Two kinds of Defenses that may be set forth in the Answer [Rule 6, Sec. 5] –
Definition - Any claim which a defending party may have against an opposing party. (1) A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the answer, it is not part of the answer. (2) Upon its filing, the same proceedings are had as in the original complaint. (3) For this reason, it must be answered 10 days from service [Rule 11, Sec 4]
(1) Negative Defenses - Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. 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 Denial [Sec. 10, Rule 8] (a) Defendant must specify each material allegation of fact the truth of which he does not admit (b) 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 (c) If pleader is without knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state
How to Raise Counterclaims (1) By including it in the Answer (a) 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] (b) Exception: Pleadings may be amended under Rule 11, Sec. 10: (i) By leave of court; (ii) Before judgment; (iii) On the grounds of: (iv) Oversight; (v) Inadvertence; (vi) Excusable neglect; (vii) When justice requires.
(2) Affirmative Defenses - Allegations of new matters which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance.
(2) By filing after the Answer [Rule 11, Sec. 9] (a) Counterclaims/cross-claims arising AFTER the answer, (b) How done: (1) By filing a supplemental pleading before judgment (2) WITH court’s permission
Negative Pregnant - Denial pregnant with an admission. It is 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)]
Rules on Counterclaims (1) In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7] (2) In the case of Agustin v. Bacalan (1985), if a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived. (3) But in Calo v. Ajax (1968), the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance.
While it is a denial in the form its substance actually has the effect of an admission because of a too literal denial of the allegation sough to be denied. This arises when the pleader merely repeats the allegations in a negative form. PAGE 28
UP LAW BOC
CIVIL PROCEDURE
Kinds of Counterclaims Compulsory counterclaim One which 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 jurisdiction. Barred if not set up in the action.
REMEDIAL LAW
(b) When a pleader fails to set up a counterclaim through oversight, inadvertence, excusable negligence, or when justice so requires. He may, by leave of court, set-up the counterclaim by amendment of the pleading [Rule 11, Sec. 10]
Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim.
(3) 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)]
May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Not barred even if not set up in the action. Must be answered, Need not be otherwise, the answered; no default. defendant can be declared in default. Since permissive, it requires the payment No need for separate of docket fees (Sun docket fees Insurance v. Asuncion, 1989)
(4) The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies. (a) In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. (b) If he decides to file a MTD, 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. (c) If any of the grounds to dismiss under Rule 17, Sec. 3 arise, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD. (d) Instead, he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)]
Compulsory Counterclaim (1) Requisites: (a) It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim; (b) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; (c) It must be within the court’s jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)] (2) General Rule: A compulsory counterclaim not set up in the answer is deemed barred. Exceptions: (a) If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]
Permissive Counterclaim (1) Counterclaim is permissive if it does not arise out of, nor is necessarily connected with, the subject matter of the opposing party’s claim (a) This is not barred even if not set up in the action
PAGE 29
UP LAW BOC
CIVIL PROCEDURE
(b) Must have independent jurisdictional ground [Herrera)]. Hence, the filing of a separate docket fee.
REMEDIAL LAW
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 default because then the cross-claimant would re-obtain a standing in court as party litigant
(2) Test to determine whether a counterclaim is compulsory or permissive: LOGICAL RELATIONSHIP TEST (a) 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)] (3) NOTE: If the counterclaim matures AFTER the Answer, it is merely PERMISSIVE
Counter-Counterclaims and Counter-CrossClaims [Rule 6, Sec. 9] (1) Counter-Counterclaim - A claim asserted against an original counter-claimant. (2) Counter-Cross-claim - A claim filed against an original cross-claimant.
Effect on Counterclaim when Complaint is Dismissed - Under Section 3, Rule 17, dismissal of action due to plaintiff’s fault shall be without prejudice to the defendant’s right to prosecute his counterclaim in the same/separate action.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS [Rule 6, Sec. 11] Definition - 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.
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.
There could also be a 4th/etc.-party complaint with the same purpose and function.
General Rule: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] Exceptions: Permissive Cross-Claims (1) When it is outside the court’s jurisdiction; (2) If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. In this case, the cross-claim is considered permissive. (3) Cross claim that may mature or may be acquired AFTER service of Answer
Cross-claim
Counterclaim
Against a co-party
Against an opposing party
Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein
Effect on Cross-Claim when Complaint is Dismissed - The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a crossclaim seeking an affirmative relief. [Torres v. CA (1973)]
No need for a leave of court PAGE 30
3rd Party complaint Against a person not a party to the action
May arise out of or be necessarily connected with the transaction or the subject Must be in matter of the respect of the opposing party’s opponent’s claim (plaintiff’s) (compulsory claim counterclaim), or it may not (permissive counterclaim) No need for leave of court
Leave of court is needed
UP LAW BOC
3rd-party complaint
CIVIL PROCEDURE
(3) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim.
Complaint in intervention
Brings into the action a 3rd person who was Same not originally a party Initiative is with the Initiative is with a nonperson already a party party who seeks to to the action join the action
3rd-party complain
REMEDIAL LAW
Additional Rules (1) Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. (2) Summons on 3rd (4th/etc.) – party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party. (3) Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rd-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)] (4) A 3rd-party complaint is not proper in an action for declaratory relief.
Counterclaim
Must be within the Need not be within the jurisdiction of the jurisdiction of the court court trying the main trying the main case case Need not Diminishes/defeats diminish/defeat the the recovery sought by recovery sought by the opposing party the opposing party May exceed in Cannot exceed the amount or be amount stated in the different in kind from original complaint that sought in the original complaint
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. Definition - INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding.
Basis of Third-Party Complaint - 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 (2) On the ground of direct liability to the plaintiff; or (3) Both (1) and (2) Situation in (1) is covered by the phrase “contribution, indemnity or subrogation”, while (2) and (3) are subsumed under the catch-all phrase (Samala v. Victor, 1989)
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]
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;
When Allowed - Intervention shall be allowed when a person has: (1) A legal interest in the matter in litigation; (2) Or in the success of any of the parties; (3) Or an interest against the parties; and (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. [First Philippine Holdings v. Sandiganbayan (1996)]
PAGE 31
UP LAW BOC
CIVIL PROCEDURE
Not an Independent Action - Intervention is not an independent action, but is ancillary and supplemental to an existing litigation. [First Philippine Holdings v. Sandiganbayan (1996)] (1) It is neither compulsory nor mandatory but only optional and permissive. [Mabayo v. CA (2002)] (2) 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)] (3) 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)]
REMEDIAL LAW
How to Intervene (1) With leave of court, the court shall consider the two 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 Time to Intervene: [Rule 19, Sec. 2] (1) General Rule: The motion to intervene must be filed at any time before the rendition of judgment by the trial court (2) Exceptions: (a) With respect to indispensable parties, intervention may be allowed even on appeal [Falcasantos v. Falcasantos] (b) When the intervenor is the Republic [Lim v. Pacquing] (c) 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]
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 and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)]
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.
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 that he has a: (a) Legal interest in (1) the matter of litigation, (2) the success of either of the parties in the action or (3) 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 that the intervenor’s rights may not be fully protected in a separate proceeding.
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 (1) 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. (2) 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] PAGE 32
UP LAW BOC
CIVIL PROCEDURE
(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]
REMEDIAL LAW
(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.
PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES OF SUMMARY PROCEDURE
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.
Under the Revised Rules on Summary Procedure – The only pleadings allowed to be filed are: [Sec. 3] (1) Complaints (2) Compulsory counterclaims and crossclaims pleaded in the Answer; and (3) Answers thereto
NOTE: Courts decision shall be contained in Form 13-SCC
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) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (7) Motion to declare the defendant in default; (8) Dilatory motions for postponement; (9) Reply; (10) Third party complaints; and (11) Interventions.
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; (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.
PARTS OF A PLEADING [Rule 7, Sec.1- 3]
Forms Used Under the Rule of Procedure under Small Claims Cases (1) Instead of filing 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
CAPTION Caption - Court’s name, action’s title (i.e. parties’ names) and docket number. Body - Pleading’s designation, allegations of party's claims/defenses, relief prayed for and pleading’s date.
PAGE 33
UP LAW BOC
CIVIL PROCEDURE
(1) Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances (2) Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc. (3) Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable. (4) Every pleading shall be dated.
REMEDIAL LAW
(7) Petition for annulment of judgments or final orders and resolutions [Sec. 1, Rule 47] (8) Complaint for injunction [Sec. 4, Rule 58] (9) Application for appointment of receiver [Sec. 1, Rule 59] (10) Application for support pendente lite [Sec. 1, Rule 69] (11) Petition for certiorari against judgments, final orders, or resolutions of constitutional commissions [Sec. 2, Rule 64] (12) Petition for certiorari [Sec. 1, Rule 65] (13) Petition for prohibition [Sec. 2, Rule 65] (14) Petition for mandamus [Sec. 3, Rule 65] (15) Petition for quo warranto [Sec. 1, Rule 66] (16) Complaint for expropriation [Sec. 1, Rule 67] (17) Complaint for forcible entry or unlawful detainer [Sec. 4, Rule 70] (18) Petition for indirect contempt [Sec. 4, Rule 71] (19) Petition for appointment of a general guardian [Sec. 2, Rule 93] (20) Petition for leave to sell or encumber property of the ward by a guardian [Sec. 1, Rule 95] (21) Petition for declaration of competency of a ward [Sec. 1, Rule 97] (22)Petition for habeas corpus [Sec. 3, Rule 102] (23)Petition for change of name [Sec. 2, Rule 103] (24) Petition for voluntary judicial dissolution of a corporation [Sec. 1, Rule 104] (25) Petition for cancellation or correction of entries in the civil registry [Sec. 1, Rule 108]
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 Effect of Signature of Counsel in a Pleading Signature of counsel 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 Unsigned Pleadings (1) No legal effect (2) Court may, in its discretion, allow such remedy to be remedied if it appears that: (a) It was due to mere inadvertence; and (b) It was not intended for delay VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING [Rule 7, Sec. 4] Verification - Pleadings need not be verified, unless otherwise provided by the law/rules
How a pleading is verified: By an affidavit (1) That the affiant read the pleading; (2) That the allegations therein are true and correct of his personal knowledge or based on authentic documents.
Verification is required in the following: (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]
Forum Shopping - The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v. Solidapsi (2002)] (Asked in the 2006 Bar Exam)
PAGE 34
UP LAW BOC
CIVIL PROCEDURE
Test to Determine WON there is forum shopping: WON in the 2 or more cases pending, there is identity of: (1) Parties (2) Rights or causes of action (3) Relief sought
REMEDIAL LAW
Requirement of a Corporation executing the verification/ CNFS - Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. [PAL v. FASAP (2006)]
Certificate of Non-Forum Shopping (CNFS) [Rule 7, Sec. 5] (1) The CNFS is to be executed by the petitioner, not by the counsel. (2) CNFS is required only for complaints or initiatory pleadings (e.g. permissive counterclaim, cross-claim etc.). (3) CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla (1998)] (a) However, a certification is needed in permissive counterclaims [Korea Exchange Bank v. Gonzales] (4) The lack of certification against forum shopping is not curable by mere amendment of a complaint, but shall be a cause for the dismissal of the case without prejudice. The general rule is that subsequent compliance with the requirements will not excuse a party's failure to comply in the first instance. [Ramirez v. Mar Fishing (2012)]
ALLEGATIONS IN A PLEADING [Rule 8]
MANNER OF MAKING ALLEGATIONS In General – [Rule 8, Sec. 1] (1) Every pleading shall contain a statement of the ultimate facts on which the party pleading relies for his claim or defense (a) In a methodical and logical form (b) A plain, concise and direct statement (c) Statement of mere evidentiary facts omitted (2) If a defense relief is based on law, state in a clear and concise manner: (a) Pertinent provisions of the law (b) Applicability of the law to him
Who Executes the Certification - Certification against forum shopping ordained by the Rules is to be executed by the petitioner, not his counsel. The petitioner is in the best position to know whether he filed or caused the filing of a petition in the case.
Facts that must be averred PARTICULARLY Circumstances showing fraud/mistake in all averments of fraud/mistake [Rule 8, Sec. 5] 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, otherwise it will be dismissed for lack of cause of action; [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]
Certification by counsel is defective certification. In Santos v. CA, the Court held that a special power of attorney was insufficient. Effect of Submission of False CNFS or NonSubmission: (1) Indirect contempt (2) Administrative and criminal actions Effect of Willful and Deliberate Forum Shopping (1) Ground for summary dismissal of the case with prejudice; (2) Direct contempt and administrative sanctions. NOTE: the CNFS is mandatory but NOT jurisdictional. PAGE 35
UP LAW BOC
CIVIL PROCEDURE
(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]
REMEDIAL LAW
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)
Condition Precedent – If the cause of action depends upon a condition precedent, its fulfillment or legal excuse for non-fulfillment must be averred.
PLEADING AN ACTIONABLE DOCUMENT [Rule 8, Sec. 7]
A general averment of the performance or occurrence of all conditions precedent shall be sufficient [Rule 8, Sec. 3]
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
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.
Pleading the actionable document: (1) The substance of such instrument or document shall be set forth in the pleading; and (2) The original or copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be part of the pleading; or (3) Said copy may with like effect be set forth in the pleading
Failure to comply with a condition precedent is a ground for a motion to dismiss [Rule 16, Sec. 1(j)] 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
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 an Actionable Document [Rule 8, Sec. 8] (1) By specific denial under oath; and (2) By setting forth what is claimed to be the facts NOTE: The genuineness and due execution of the document must be denied SPECIFICALLY 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 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; and that the formalities, such as swearing and acknowledgement, or revenue stamps which are required by law are waived by him
Capacity – What 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, Mistake, Malice, Intent, Knowledge and Other Condition of the Mind, Judgments, official documents, or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [Rule 8, Sec. 5]
Failure to Deny Under Oath the Actionable Document: (1) The genuineness and due execution is deemed admitted (2) The document need not be formally offered in evidence PAGE 36
UP LAW BOC
CIVIL PROCEDURE
SPECIFIC DENIALS [Rule 8, Sec. 10]
REMEDIAL LAW
EFFECT OF FAILURE TO PLEAD [Rule 9]
The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he sincerely intends to disprove at the trial, together with matters which he relies upon to support the denial [Herrera].
FAILURE TO PLEAS DEFENSES AND OBJECTIONS General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived. (Omnibus Motion Rule)
Modes of Denial: (1) Specific Absolute Denial - Defendant must specify each material allegation of fact the truth of which he does not admit (a) Whenever applicable, he shall set forth the substance of the matters which he will rely upon to support the denial
Exceptions: (1) Lack of jurisdiction over the subject matter; (2) Litis pendentia between same parties for the same cause (3) Res judicata (4) Action barred by statute of limitations. FAILURE TO PLEAD COMPULSORY COUNTERCLAIM AND CROSS-CLAIM
(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
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]
(3) Disavowal of Knowledge - If defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint: (a) He shall so state (b) This shall have the effect of a denial
For Cross-Claims: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]
Effect of Failure to make Specific Denials: (1) General Rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11]
DEFAULT [Rule 9, Sec. 3] Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence
(2) Exceptions: Averments not deemed admitted even if not specifically denied (a) Allegations as to the amount of unliquidated damages; (b) Allegations immaterial to the cause of action (c) Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12] (d) Conclusion of law.
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 (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
When a specific denial requires an OATH – When the genuineness and due execution of an actionable document is contested or denied, the specific denial must be under oath. [Rule 8, Sec. 8] PAGE 37
UP LAW BOC
Order of default Issued by the court on plaintiff’s motion, for failure of the defendant to file his responsive pleading seasonably Interlocutory -Not appealable
CIVIL PROCEDURE
Judgment by default
REMEDIAL LAW
(4) Defendant is still entitled to notices of subsequent proceedings (a) A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. [Cavili v. Florendo (1987)] (b) A party in default is entitled to notice of: (i) Motion to declare him in default; (ii) Order declaring him in default; (iii) Subsequent proceedings; (iv) Service of final orders and judgments.
Rendered by the court following a default order or after it received ex parte plaintiff’s evidence Final – Appealable
When a 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
(5) 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)]
Elements of a Valid Order 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 (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
Relief from an Order of Default [Lina v. CA] (1) The defendant in default may file a motion, under oath, to set aside the order of default At any time after discovery thereof (from Notice) and before judgment, (2) If the judgment has already been rendered, he may file for new trial under Sec. 1 (a) Rule 37 When the defendant discovered the default, but before the same has become final and executory
Effect of Order of Default: (1) The court shall proceed to render judgment granting the claimant such relief as his pleading may warrant; or in its discretion (2) Shall require the claimant to submit evidence;
(3) If defendant discovered the default after judgment had become final and executory, he may file a petition for relief under Sec. 2, Rule 38
(3) Loss of standing in court of the defaulting party – meaning he cannot appear therein, adduce evidence and be heard nor take part in the trial
(4) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him
PAGE 38
UP LAW BOC
CIVIL PROCEDURE
Partial Default - When the complaint states a common cause of action against several defendants some of whom answers and some of them do not, the court should declare defaulting defendants in default, and proceed to trial on answers of others If the defense is personal to the one who answered, it will not benefit those who did not answer. 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 (3) As held in Datu Samad Mangelen v. CA (1992): (a) In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. (b) 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. Actions Where Default is NOT allowed: (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
PAGE 39
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
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 proves his allegations: Case is dismissed
PAGE 40
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Further modification by Heirs of Hinog v. Melicor (2005) (a) Fees as lien (b) 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
FILING AND SERVICE OF PLEADINGS 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. 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)]
(4) Exception to the Sun Insurance doctrine: Gochan v. Gochan (a) 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.
Effect of Failure to Pay Docket Fees at Filing (1) The Manchester Rule: Manchester v. CA (1987) (a) Automatic Dismissal (b) 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
FILING VERSUS SERVICE OF PLEADINGS Filing - The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2] Service - The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2]
(2) Relaxation of the Manchester Rule by Sun Insurance v. Asuncion (1989) (a) NOT automatic dismissal (b) 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.
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.
PAGE 41
UP LAW BOC
CIVIL PROCEDURE
PERIODS OF FILING OF PLEADINGS Period Pleading Period counted from Service of summons, unless a Within 15 days different period is fixed by the court [Rule 11, Sec. 1] Within 30 days if the defendant is a foreign private juridical entity Receipt of Answer to the and service of summons Complaint summons is [Rule 11, Sec. 2] made on government official At least 60 days In case of nonService of resident extrajudicial defendant on summons [Sec. whom 15, Rule 14] extrajudicial service is made Answer to Within 15 days Service of a AMENDED (if amendment copy of the Complaint was a matter of amended (amended right) complaint counterclaim, cross-claim, Within 10 days Notice of the order 3rd party (if amendment admitting the complaint, was not a same [Rule 11, complaint in matter of right) Sec. 3] intervention) Answer to Counterclaim From service Within 10 days or Cross[Rule 11, Sec. 4] Claim Answer to Same rule as third (4th, etc)- Within 15 days answer to the party complaint complaint [Rule 11, Sec. 5] From service of the pleading Reply Within 10 days responded to [Rule 11, Sec. 6] From notice of the order Answer to admitting the supplemental Within 10 days same, unless a complaint different period is fixed by the court
REMEDIAL LAW
NOTE: 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] MANNER OF FILING As per Rule 13, Sec. 3: (1) Personally (a) By By personally presenting the original to the clerk of court. (b) The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. (c) 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)] (2) By Registered Mail (a) Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). (b) The pleading is deemed filed on the date it was deposited with the post office. Filing a pleading by facsimile is not sanctioned. But fax was allowed in an extradition case [Justice Cuevas v. Juan Antonio Munoz] MODES OF SERVICE Personal Service [Rule 13, Sec. 6] (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
PAGE 42
UP LAW BOC
CIVIL PROCEDURE
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
REMEDIAL LAW
PRIORITIES IN MODES OF SERVICE AND FILING General rule: Personal filing and service is preferred. [Rule 13, Sec. 11] 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.
(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
Exception: Papers emanating from the court. WHEN SERVICE IS DEEMED COMPLETE Completeness of Proof of service service (Rule 13 Sec. (Rule 13 Sec. 13) 10) Personal service Written admission of the party served, OR Official return of the server OR Upon actual delivery Affidavit of the party serving, with a full statement of the date/place/manner of service. Service by ordinary mail Affidavit of the person 10 days after mailing, mailing of facts unless otherwise showing compliance provided by the court with Sec. 7 of Rule 13. Service by registered mail Affidavit of the person Whichever is earlier: mailing of facts showing compliance Actual receipt by the with Sec. 7 of Rule 13 addressee OR AND 5 days after the addressee received Registry receipt issued 1st postmaster's by the post office notice (Constructive)
(b) It is done by depositing in the post office: (i) In a sealed envelope (ii) Plainly addressed to the party or his counsel (a) At his office if known (b) Otherwise, at his residence if known (iii) Postage fully pre-paid (iv) With instructions to the postmaster to return the mail to the sender after 10 days if undelivered Substituted Service [Rule 13, Sec. 8] (1) Done by delivery of the copy to the clerk of court with proof of failure of both personal and service by mail (2) Proper only when: (a) Service cannot be made personally or by mail (b) Office and place of residence of the party of his counsel being unknown (3) Service is complete at the time of such delivery SERVICE OF JUDGMENTS, FINAL ORDERS, OR RESOLUTIONS [Rule 13, Sec. 9] Service is done either: (1) Personally (2) By registered mail (3) By publication ONLY IF: (a) Party is summoned by publication AND (b) He failed to appear in the action
Substituted Service 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
NOTE: There is NO substituted service of judgments and final orders
PAGE 43
UP LAW BOC
CIVIL PROCEDURE
Purpose of the rule on completeness of service for service by registered mail: To make sure that the party being served with the pleading, order or judgment is duly informed of the same so that such party can take steps to protect the interests, i.e., enable to file an appeal or apply for other appropriate reliefs before the decision becomes final. [MINTERBRO v,CA (2012)]
When pleading is deemed filed
REMEDIAL LAW
Proof of filing
Personally Upon receipt of the Written/stamped pleading by the clerk of acknowledgment by the court clerk of court By registered mail Registry receipt, and affidavit of the person who did the mailing with: (a) Full statement of the date/place of depositing the mail in the post office in a On the date the sealed envelope pleading was deposited addressed to the with the post office court
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: (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]
(b) Postage fully paid (c) Instructions to the postmaster to return the mail to the sender after 10 days if undelivered
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]
PROOF OF SERVICE [Rule 13, Sec. 13] Mode Proof of service A written admission of the party served, OR The official return of the server; OR Personal Service Affidavit of the party serving containing a full statement of the date, place, and manner of service Affidavit of the person mailing stating the facts Service by ordinary mail showing compliance with Rule 13, Sec. 7 Affidavit of person mailing containing facts showing compliance with Rule 13, Sec. 7, AND Registry receipt issued by mailing office; OR The registry return card which shall be filed Service by registered immediately upon its mail receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.
PROOF OF FILING (1) Filing is proved by its existence in the record of the case [Rule 13, Sec. 12] (2) If it is not in the record:
PAGE 44
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(iii) Amendment of reply any time within 10 days after it is served (b) Formal amendment
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
AMENDMENTS BY LEAVE OF COURT [Rule 10, Sec. 3] When leave of court is necessary before amendment is allowed: (1) All substantial amendments (unless it falls under Rule 10, Sec. 2 as a matter of right) (2) When a responsive pleading has already been served Requisites: (1) A motion for leave of court to amend pleading is filed (a) Amended pleading should be attached to the motion [see Sec. 9, Rule 15] (2) Notice is given to the adverse party (3) Parties are given opportunity to be heard
A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. [Rule 10, Sec. 7] Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.
Grounds for allowance of the amendment (1) If it appears to the court that the motion was made to delay the action, leave of court is not given (2) There must be some reasonable grounds justifying its exercise of discretion to allow amendment
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]
When amendment by leave of court 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. (a) If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)] (3) If amendment is for curing a premature or non-existing cause of action. (4) If amendment is for purposes of delay.
Types of Amendments: (1) Amendment as a matter of right (2) Amendment as a matter of judicial discretion AMENDMENTS AS A MATTER OF RIGHT [Rule 10, Sec. 2] When amendment is allowed as a matter of right: (1) Once as a matter of course (a) A 2nd or subsequent amendment must now be with leave of court, not a matter of right anymore (2) Instances: (a) Substantial amendment – before responsive pleading is filed (i) Amendment of complaint before an answer is filed. (ii) Amendment of answer before a reply is filed or before the period for filing a reply expires
FORMAL AMENDMENTS (Rule 10, Sec. 4) When an amendment is formal: (1) When there is a mere defect in the designation of the parties; (2) Other clearly clerical or typographical errors PAGE 45
UP LAW BOC
CIVIL PROCEDURE
How formal amendments are effected (1) It may be summarily corrected by the court at any stage of the action (2) A party may, by motion, call for the formal amendment
REMEDIAL LAW
But failure to amend does not affect the result of the trial of those issues (2) When evidence IS objected to: 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
NOTE: The formal amendment must NOT cause prejudice to the adverse party AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE [Rule 10, Sec. 5] Applicability of 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 of the parties where the trial of said issues is with the express or implied consent of the parties
SUPPLEMENTAL PLEADINGS Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6]
What Sec. 5 contemplates: (1) It 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
Purpose: To bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled [Ada v. Baylon (2012), citing Young v. Spouses Yu]
(2) It also allows the admission of evidence: (a) On a defense not raised in a motion or answer if no objection is made thereto; (b) In the event of such objection, court may allow amendment of the answer in order to raise said defense
How Made: It is made upon motion of a party with reasonable notice and upon terms as are just.
A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter.
Difference with Amended Pleading Amendments Reason for the amendment is available at time of the 1st pleading Either as a matter of right or a matter of discretion
NOTE: Remember, however, that where the plaintiff has no valid cause of action at the time of the filing of the complaint, this defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending Two Scenarios: (1) When evidence is NOT objected to When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respected as if they had been raised in the pleadings Such amendments of pleadings as may be necessary to cause them to conform to the evidence and raise these issues may be made upon motion of any party at any time, even after judgment
Supplemental Pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed Always a matter of discretion
Merely supplements the the original (i.e. Exists side by side with the original pleading) When an amended A supplemental pleading is filed, a pleading does not new copy of the require the filing of a entire pleading must new copy of the entire be filed pleading Supersedes original
PAGE 46
UP LAW BOC
CIVIL PROCEDURE
Limitations: (1) Claims or defenses which have matured after the filing of the original pleadings cannot be averred in a supplemental pleading (it may be the subject of an amendment) (2) Supplemental pleadings are not allowed on separate and distinct causes of action (a) 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)] (3) The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court
REMEDIAL LAW
Issuance of Summons - 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] Contents of Summons [Rule 14, Sec. 2] (1) Summons shall be: (a) Directed to the defendant (b) Signed by clerk of court under seal (2) Summons shall contain: (a) 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 (c) A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for
EFFECT OF AMENDED PLEADING [Rule 10, Sec. 8] (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
(3) The following shall be attached to the original and each copy of the summons: (a) A copy of the complaint (b) Order for appointment of guardian ad litem (if any) Effect of Invalid Summons (1) The trial court does not acquire jurisdiction and renders null and void all subsequent proceedings and issuances [Syjuco v. Castro] (2) Any judgment without service of summons in the absence of a valid waiver is null and void [Filmerco Commercial Co. v. IAC]
SUMMONS Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND QUASI IN REM
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]
Purposes of Summons (1) For Actions in Personam (a) To acquire jurisdiction over the person of the defendant in a civil case; (b) To give notice to the defendant that an action has been commenced against him.
General Rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons;
(2) For Actions in Rem and Quasi In Rem (a) Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (b) Jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res
Exception: Special appearance to file a MTD. BUT inclusion in the MTD of grounds other than LOJ over the defendant’s person, is not deemed a voluntary appearance.
PAGE 47
UP LAW BOC
CIVIL PROCEDURE
Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)]
REMEDIAL LAW
therefrom, stating the reasons for the failure of service MODES OF SERVICE OF SUMMONS Modes: (1) Personal Service [Rule 14, Sec. 6] (2) Substituted Service [Rule 14, Sec. 7] (3) Service by Publication [Rule 14, Sec. 14, 15, 16]
WHO MAY SERVE SUMMONS Who May Serve Summons [Rule 14, Sec. 3] (1) The sheriff (2) His deputy (3) Other proper court officer (4) Any suitable person authorized by the court (for justifiable reasons)
NOTE: 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 [Sec. 15] o Resort to registered mail is only complementary to the service of summons by publication o But it does not mean that service by registered mail alone would suffice
NOTE: The enumeration in Sec. 3 of the persons who may validly serve summons is EXCLUSIVE [Herrera] RETURN OF SUMMONS
PERSONAL SERVICE OF SUMMONS [Rule 14, Sec. 6]
Return When Service has been Completed [Rule 14, Sec. 4] (1) The server shall serve a copy of the return to the plaintiff’s counsel (a) Within 5 days therefrom (b) Personally or by registered mail (2) The server shall return the summons (a) To the clerk who issue it (b) Accompanied by proof of service
How Done: (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
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
Personal Service of Summons on Defendant Rule 14, Sec. 6
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 Service is only made charge of his on defendant himself office; or (3) Leaving it with a person of sufficient age and discretion at the party’s or counsel’s residence
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
PAGE 48
UP LAW BOC
CIVIL PROCEDURE
SUBSTITUTED SERVICE OF SUMMONS [Rule 14, Sec. 7]
REMEDIAL LAW
(3) “To be in charge” means to have care an custody of, under control of, or entrusted to the management or direction of [Sandoval II v. House of Representatives]
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.
Proof of Substituted Service MUST: (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 person of sufficient age and discretion who is residing in the address, or who is 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)]
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 Necessary Requisite: For substituted service of summons to be valid, it is necessary to establish the following: (1) The impossibility of the personal service of summons within a reasonable time (2) The efforts exerted to locate the person to be served; and (3) Service upon: (a) A person of sufficient age and discretion residing in the same place as defendant or (b) Some competent person in charge of his office or regular place of business [Spouses Ventura v. CA, 1987]
CONSTRUCTIVE PUBLICATION)
SERVICE
(BY
Three Situations were Summons by Publication may be allowed under Rule 14 [Baltazar v. CA] (1) First is the situation of an Unknown Defendant – governed by Sec. 14 (2) Second is the situation were Extraterritorial service is proper – governed by Sec. 15 (3) Third, is that of a resident who is temporarily out of the Philippines – governed by Sec. 16
Meaning of RESIDENCE (1) For a substituted service to be valid, summons served at the defendant’s residence must be served at his residence AT THE TIME OF SERVICE; not his former place of residence (2) “dwelling house” or “residence” refers to the dwelling house at the time of service (3) They refer to 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 Rule on Unknown Defendants [Rule 14, Sec. 14] If a defendant is a resident and plaintiff cannot determine the correct address of respondent, petitioner only needs to show that: (1) Respondent’s address is unknown and (2) Cannot be ascertained by diligent inquiry Upon compliance with this requirement, it can validly serve summons by publication in a newspaper of general circulation. [United Coconut Planters Bank v. Ongpin]
Meaning of Defendant’s Office or Regular Place of Business (1) “Office” or “regular place of business” refers to the office or place of business of defendant at the time of service (2) The rule specifically designates the persons to whom copies of the process should be left
NOTE: Under this Section, summons by publication can be made in ANY action (personam, in rem, quasi in rem) unlike in cases of Non-Resident Defendants.
PAGE 49
UP LAW BOC
CIVIL PROCEDURE
The Rule on Non-Resident Defendants (Extraterritorial Service); [Rule 14, Sec. 15]
REMEDIAL LAW
(b) Extra-territorial service is also allowed (also by leave of court) according to Sec. 16
Extra-territorial service is allowed IF: (1) The defendant (a) Does not reside in the Philippines (b) And is not found in the Philippines (2) And the action (in rem and quasi in rem) (a) Affects the personal status of the plaintiff, or (b) Relates to or the subject of which is property within the Philippines (1) In which defendant has or claims a lien or interest, actual or contingent; or (2) In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or (3) Property of defendant has been attached within the Philippines
NOTE: In other words, a resident defendant in an action personam, who cannot be personally served with summons, may be summoned either by: (1) Substituted service in accordance with Sec. 7, Rule 14 (2) Or by service by publication under Sec. 16, Rule 14 When the action is in rem or quasi in rem, extra-territorial service may be effected provided that Sec. 16 requirements are met. SERVICE UPON PRISONERS AND MINORS Service of Summons on Different Entities: Defendant Entity without juridical personality [Sec. 8]
NOTE: Always remember that extraterritorial service, when allowed, covers only action in rem and quasi in rem. How Extra-territorial service is done: (1) Always by leave of court (2) Modes: (a) Personal service as under Sec. 6, Rule 14 (b) Publication in a newspaper of general circulation in such places and for such time as court may order (1) A copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant (c) In any other manner the court may deem sufficient
Service of Summons Upon any or all the defendants being sued under common name; or person in charge of the office
In case of minors: by serving upon: (1) The minor, regardless of age, AND (2) Upon his legal guardian, or also upon either of his parents In case of incompetents: by Minors and serving on: incompetents (1) Him personally AND [Sec. 10] (2) Upon his legal guardian, but not upon his parents, unless they are his legal guardians In any event: if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him Serve to either: (Exclusive enumeration) Domestic (1) The president, private (2) Managing partner, juridical (3) General manager, entity [Sec. 11] (4) Corporate secretary, (5) Treasurer, or (6) In- house counsel
NOTE: Any order granting such leave shall specify a reasonable time within which defendant must answer BUT the time shall not be less than 60 days after notice The Rule on Residents Temporarily Outside of the Philippines [Rule 14, Sec. 16] How done: (1) Always by leave of court (2) Modes: (a) Where the defendant is residing in the Philippines, jurisdiction over his person may be acquired by substituted service of summons under Sec. 7 PAGE 50
UP LAW BOC
CIVIL PROCEDURE
Defendant
Service of Summons Service may be done on: (1) The resident agent; Foreign (2) If no resident agent; private (a) The government juridical official designated by entity [Sec. law; or 12] (b) Any officer or agent of the corporation within the Philippines In case defendant is the Republic, by serving upon the Solicitor General Public In case of a province, city or corporations municipality, or like public [Sec. 13] corporations, by serving on its executive head or on such other officer or officers as the law or the court may direct
REMEDIAL LAW
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
MOTIONS MOTIONS IN GENERAL DEFINITION OF A MOTION A motion is an application for relief other than by a pleading. [1a]
PROOF OF SERVICE The proof of service of summons [Rule 14, Sec. 18]: (1) Shall be made in writing (2) It shall: (a) Set forth the manner, place, date of service (b) Specify any papers which may have been served with the process and the name of the person who received the same (c) Shall be sworn to when made by a person, other than the sheriff or his deputy
MOTIONS VERSUS PLEADINGS Motion Contains allegations of facts Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief) Generally in writing (with some exceptions)
If service has been made by publication, service may be proved by: [Rule 14, Sec. 19] (1) The affidavit of the printer, his foreman, or principal clerk; or of the editor, business or advertising manager Copy of the publication shall be attached
Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing
General Rule: A motion cannot pray for judgment Exceptions: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.
(2) AND an affidavit showing: (a) The deposit of a copy of the summons; and (b) Order of publication in the post office, postage prepaid, directed to defendant by registered mail to his last known address
CONTENTS AND FORM OF MOTIONS Contents [Rule 15, Sec. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) Accompanied by supporting affidavits and other papers if: (a) Required by the Rules, or (b) Necessary to prove facts alleged therein PAGE 51
UP LAW BOC
CIVIL PROCEDURE
Form [Rule 15, Sec. 2] General Rule: In writing.
REMEDIAL LAW
(4) Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4]
Exception: Oral motions: (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
Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. Exceptions: (a) Ex parte motions; (b) Urgent motions; (c) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (d) Motions for summary judgment which must be served at least 10 days before its hearing.
NOTICE OF HEARING AND HEARING OF MOTIONS Requisites of motions (not made in open court or in the course of hearing/trial) (1) It must be in writing; [Rule 15, Sec. 2] Exception: Oral motions
(5) Proof of Service
(2) Hearing on the motion set by the applicant
Proof of Service [Rule 15, Sec. 6] General Rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.
Motion Day [Rule 15, Sec. 7] - Except for urgent motions, motions are scheduled for hearing: (a) On Friday afternoons; (b) Afternoon of the next working day, if Friday is a non-working day.
What may be proof: (1) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card, with an explanation. (2) If by personal service: Affidavit or acknowledgment of receipt by the other party.
(3) Notice of hearing 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]
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 because such a party is not entitled to notice.
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; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)]
OMNIBUS MOTION RULE Definition: A motion attacking a pleading/ order/ judgment/ proceeding must include all objections then available. All objections not included in the motion are deemed waived.
Effect of Want of Notice: A motion that does not contain a notice of hearing is but a mere scrap of paper. A court has no jurisdiction to issue an order in consideration of a motion for correction of judgment which does not have a proper notice of hearing [Fajardo v. CA]
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
PAGE 52
UP LAW BOC
CIVIL PROCEDURE
Exception: When the court’s jurisdiction is in issue: (1) Lack of jurisdiction over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription.
proper mode of discovery. [Galeon v. Galeon (1973)] Purpose: to define/ clarify/ particularize/ limit/ circumscribe the issues in the case to expedite the trial and assist the court. The only question to be resolved in a motion for a Bill of Particulars is WON the allegations in the complaint are averred with sufficient definiteness/ particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] A Bill of Particulars becomes part of the pleading for which it was intended. [Rule 12, Sec. 6]
LITIGATED AND EX PARTE MOTIONS Kinds of Motion (1) Motion Ex Parte - Made without notification to the other party because the question generally presented is not debatable. (2) Litigated Motion - Made with notice to the adverse party so that an opposition thereto may be made. (3) Motion Of Course - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified. (4) Special Motion - Discretion of the court is involved. An investigation of the facts alleged is required.
When Applied For: [Rule 12, Sec. 1] (1) Before responding to a pleading (2) If the pleading is a reply, within 10 days from service thereof What a Motion for a Bill of Particulars should point out: [Rule 12, Sec. 1] (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired.
PRO FORMA MOTIONS Definition - A motion failing to indicate time and date of the hearing
MOTIONS FOR PARTICULARS
BILL
REMEDIAL LAW
What cannot be done in a Bill of Particulars: To supply material allegations necessary to the validity of a pleading To change a cause of action or defense stated in the pleading To state a cause of action or defense other than that one stated To set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to reply To furnish evidentiary information
OF
DEFINTION It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1]
ACTIONS OF THE COURT
PURPOSE AND WHEN APPLIED FOR It is filed by the plaintiff pursuant to a court order issued upon granting a motion for Bill of Particulars filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. An action cannot be dismissed on the ground that the complaint is vague/ indefinite. The remedy of the defendant is to move for a Bill of Particulars or avail of the
Upon the filing of the motion, the clerk must immediately bring it to the attention of the court. The court may: [Rule 12, Sec. 2] (1) Deny (2) Grant the motion outright (3) Allow the parties the opportunity to be heard
PAGE 53
UP LAW BOC
CIVIL PROCEDURE
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE
Bill of Particulars Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague, so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case
Compliance with Order [Rule 12, Sec. 3] – If motion is granted wholly/partially: (1) Within 10 days from notice of order, Bill of Particulars or a more definite statement should be submitted (unless court fixes a different period). (2) 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. 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: (a) May 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.
TO
Intervention Purpose is to enable a person not yet a party to an action, yet having a certain right or interest in such action, the opportunity to appear and be joined so he could assert or protect such right or interest
Available to any person not yet a party to the action at any Available to the time after the defendant before he commencement of an files his responsive action, even during the pleading proceeding, but not after the trial has been concluded
(2) If a party fails to obey: (a) 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] (b) 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] EFFECT ON THE PERIOD PLEADING [Rule 12, Sec. 5]
REMEDIAL LAW
Effect of Motion: (1) If the motion is granted, in whole or in part, (a) The movant can wait until the bill of particulars is served on him by opposing party (b) Then he will have the balance of the reglementary period within which to file his responsive pleading (2) If the motion is denied (a) He will still have such balance of the reglementary period to file his responsive pleading, counted from service of the order denying his motion
FILE
A Motion for Bill of Particulars interrupts the period to file a responsive pleading.
IN ANY CASE: The party will have at least 5 days to file his responsive pleading
BUT only if it is sufficient in the form and substance.
MOTION TO DISMISS
The period to which the movant is entitled at the time of filing of the motion, which shall not be less than 5 days in any event. NOTE the following distinctions:
IN GENERAL Definition – A remedy of the defendant, or the responding party in general, 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 PAGE 54
UP LAW BOC
CIVIL PROCEDURE
It hypothetically admits the facts stated in the complaint.
REMEDIAL LAW
(10) Unenforceable claim under the Statute of Frauds (11) Non-compliance with a condition precedent for filing claim
It is not a responsive pleading. It is not a pleading at all. 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.
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
Types of Dismissal of Action: (1) MTD before answer under Rule 16; (2) MTD under Rule 17: (a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff. (3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; (4) Dismissal of an appeal.
Lack of Jurisdiction (LOJ) over the Defendant’s Person The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made. 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.
Period to File: Within the time for, but before filing of, the answer to the complaint or pleading asserting a claim Exceptions: (a) For special reasons which may be allowed even after trial has begun, a motion to dismiss may be filed (b) 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
Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)]
General Rule: A court may NOT motu propio dismiss a case, unless a motion to that effect is filed by a party.
NOTE: 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) Cases where the court may dismiss a case motu propio; [Rule 9, Sec. 1] (2) Failure to prosecute; [Rule 17, Sec. 3] (3) Sec. 4, Revised Rule on Summary Procedure.
Lack of Jurisdiction over the Subject Matter of the Claim If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion.
GROUNDS [Rule 16, Sec. 1] (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
A MTD on the ground of LOJ over the subject matter may be raised either: (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.
PAGE 55
UP LAW BOC
CIVIL PROCEDURE
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.
REMEDIAL LAW
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. 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]
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)
Litis pendentia
Requisites: [Anderson Group v. CA, 1997] (1) Identity of parties; (2) identity of rights asserted and relief prayed for; (3) Relief founded on the same facts and the same basis; (4) Identity in the 2 proceedings should be such that any judgment which may be rendered in the other action will amount to res judicata on the action under consideration.
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 since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)]
It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later.
Where a motion to dismiss for improper venue is erroneously denied, the remedy is prohibition (Enriquez v. Macadaeg) Where the plaintiffs filed the action in a court of improper venue and thereafter submitted to its jurisdiction, the issue of venue was thereby waived and they are in estoppel to repudiate or question the proceedings in said court (Vda. De Suan, et al. v. Cusi, et al.)
It does not require 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.
Objection to venue is also impliedly waived where the party enters into trial, crossexamines the witnesses of the adverse party and adduces evidence (Paper Industries Corp of the Philippines v. Samson et al.)
In both tests, the parties’ good faith shall be taken into consideration.
Plaintiff’s Lack of Legal Capacity to Sue 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).
The first case shall be abated if it is merely an anticipatory action or defense against an expected suit. The second case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)]
Res Judicata
Requisites: (1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties; (2) Judgment must be a final judgment;
Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the PAGE 56
UP LAW BOC
CIVIL PROCEDURE
(3) Judgment must be on the merits; (a) There can be res judicata without a trial, such as in a judgment on the pleadings [Rule 34]; a summary judgment [Rule 35]; or an order of dismissal under Rule 17, Sec. 3. (4) There must be identity of parties, of subject matter and of the causes of action.
REMEDIAL LAW
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. Prescription Laches Concerned with the Concerned with the fact of delay effect of delay A matter of time A matter of equity Statutory Not statutory Applies in law Applies in equity Not based on fixed Based on fixed time time
For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)]
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]
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)]
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]
Two concepts of res judicata [Abalos v. CA 1993) (1) Bar by prior judgment – Judgment on the merits in the 1st 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/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. (Asked in the 2002 Bar Exam)
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]
(2) Conclusiveness of judgment – Where the second action between the parties is upon a different claim/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.
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.
Statute of Limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. PAGE 57
UP LAW BOC
CIVIL PROCEDURE
The failure to state a cause of action must be evident on the face of the complaint itself.
Unenforceable Claim under the Statute of Frauds Article 1403 (2) CC 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.
Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? 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. 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 party-in-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
REMEDIAL LAW
No cause of action Insufficiency of factual basis for the action
Unlike a motion to dismiss on the ground that the complaint states no cause of action, a 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.]
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, admissions or evidence presented and with prejudice
Non-Compliance with a 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.].
Extinguished Claim That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished.
PAGE 58
UP LAW BOC
CIVIL PROCEDURE
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].
REMEDIAL LAW
The court’s resolution on the MTD must clearly and distinctly state the reasons therefor. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options:
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].
(1) Depending upon the ground for the dismissal of the action, the plaintiff may REFILE the complaint, (a) These are orders of dismissal which is not tantamount to an adjudication on the merits (b) e.g when ground for dismissal is anchored on improper venue.
RESOLUTION OF MOTION During the hearing of the motion: Parties shall submit: (1) Their arguments on questions of law (2) Their evidence on questions of fact [Rule 16, Sec. 2] (a) Exception: Those not available at that time
(2) He may APPEAL from the order of dismissal where the ground relied upon is one which bars refilling of complaint (a) The grounds which bar re-filing are: (i) Res judicata (ii) Prescription (iii) Extinguishment of the obligation (iv) Violation of Statutes of Fraud
Parties should be allowed to present evidence and the evidence should be taken down
(3) The plaintiff may also avail of a petition for certiorari, alleging grave abuse of discretion. [Riano]
Except: when the motion is based on the ground of insufficiency of cause of action which must generally be determined on the basis of the facts alleged in the complaint
REMEDIES OF THE DEFENDANT WHEN MOTION IS DENIED
Trial: If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same.
Appeal is NOT a remedy since denial of a motion to dismiss is an interlocutory order. As a general rule, defendant files his answer and then may appeal an adverse judgment.
Lack of formal hearing of a motion to dismiss is not fatal where the issues raised were fully discussed in the motion and opposition. [Castillo v. CA]
Remedies of Defendant: (1) The movant shall file his answer within the balance of the period described in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event. (a) If pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of amended pleading unless the court provides a longer period
After hearing: Court may either: (1) Dismiss the action/claim (2) Deny the MTD (3) Order amendment of the pleadings The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable.
PAGE 59
UP LAW BOC
CIVIL PROCEDURE
(2) Another remedy is to file a certiorari, case under Rule 65 alleging grave abuse of discretion. [Riano]
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
EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS General rule: The action/claim may be re-filed. 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)] WHEN GROUNDS PLEADED AFFIRMATIVE DEFENSES
AS
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]
If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case
NOTE: The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
REMEDIAL LAW
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
DISMISSAL OF ACTIONS
If the defendant would not want to file a counterclaim, he should not file a motion to dismiss Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim A preliminary hearing may be had thereon, and in the event the complaint is dismissed, defendant can prosecute his counterclaim [Herrera]
DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE
DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER RULE 33 A motion to dismiss under this Rule differs from a motion to dismiss under Rule 33 on demurrer to evidence:
The dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court.
[Rule 17, Sec. 1]
Dismissal by plaintiff as a matter of right Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the service of: (1) The answer; or (2) A motion for summary judgment
Dismissal NOT Automatic It requires an order by the court confirming the dismissal. Until confirmed, the withdrawal does not take effect
PAGE 60
UP LAW BOC
CIVIL PROCEDURE
Generally, Dismissal is Without Prejudice 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) Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved [Serrano v. Cabrera]
REMEDIAL LAW
However, under this section, if a counterclaim has been pleaded by a defendant PRIOR to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. Such dismissal shall be without prejudice to the right of the defendant to either: (1) Prosecute his counterclaim in a separate action; (a) In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint (2) OR to have the same resolved in the same action (a) In this case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss
Two Dismissal Rule When the same complaint had twice been dismissed by the plaintiff without order of the court by simply filing a notice of dismissal, the 2nd dismissal operates as an adjudication on the merits.
NOTE: These alternative remedies of the defendant are available to him regardless of whether his counterclaim is compulsory or permissive
DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM [Rule 17, Sec. 2]
DISMISSAL DUE TO FAULT OF PLAINTIFF [Rule 17, Sec. 3]
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. Generally, Dismissal is Without Prejudice 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
Distinction between Sec. 2 and Sec. 3 of
Rule 17
Section 3 Dismissal is not Dismissal is at the procured by plaintiff instance of the though justified by plaintiff causes imputable to him Dismissal is a matter of procedure, without Dismissal is a matter prejudice unless of evidence, an otherwise stated in adjudication on the the court order or on merits motion to dismiss Dismissal is without prejudice to the right of defendant to prosecute his Dismissal is without counterclaim in a prejudice to the right separation action of defendant to unless within 15 days prosecute his from notice of motion counterclaim on the he manifests his same or separate intention to have his action counterclaim resolved in the same action
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 Remember that if the civil case is dismissed, so also is the counterclaim filed therein o It was held that if the court does not have jurisdiction to entertain the main action of the case and dismiss the case, then the compulsory counterclaim, being ancillary to the principal controversy must likewise be dismissed [Metals Engineering Resources v. CA]
PAGE 61
Section 2
UP LAW BOC
CIVIL PROCEDURE
Dismissal under this Section The case may be dismissed motu proprio or upon the defendant’s motion if, without justifiable cause, plaintiff fails either: (1) 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. (b) It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)] (c) 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.
REMEDIAL LAW
(iii) 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] (c) Failure to comply with rules (i) 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] (ii) Dismissal is improper where a 3rd party complaint has been admitted and the 3rd party defendant had not yet been summoned [Sotto v. Valenzuela] (iii) 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] Effect of Dismissal General Rule: Dismissal of actions under Sec. 3 which do not expressly state whether they are with or without prejudice are held to be with prejudice on the merits
(2) 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]
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 Effect on Counterclaim Defendant is granted the choice to prosecute that counterclaim in either the same or a separate action, just like the grant of that remedy in Sec. 6, Rule 16 In this section (as well as in Sec. 6, Rule 16), 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 Sec. 6, Rule 16, are filed by defendant who perforce has already deliberated upon 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
(3) To comply with the Rules or any court order. (a) The order must be valid (b) Failure to comply with order: (i) 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] (ii) Failure to comply with an order to include indispensable parties is ground for dismissal [AranicoRubino v. Aquino] PAGE 62
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
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
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 Effect of Dismissals (1) Dismissal or continuance of an action operates to annul orders, ruling, or judgments previously made in the case (2) It also annuls all proceedings had in connection therewith and renders all pleadings ineffective (3) Dismissal or non-suit leaves the situation as though no suit had ever been brought
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.
Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata. Res judicata, however, is not applicable since the court held that it did not acquire jurisdiction due to nonpayment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]
PRE-TRIAL CONCEPT OF PRE-TRIAL
Pre-trial is Mandatory Vital objective: the simplification, abbreviation, and expedition of the trial, if not indeed its dispensation Mandatory nature is addressed to both court and parties: o 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
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.
PAGE 63
UP LAW BOC
CIVIL PROCEDURE
Primary Objective Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.
REMEDIAL LAW
APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR Duty to Appear: It is the duty of the parties and their counsel to appear at the pre-trial. [Rule 18, Sec. 4] NOTE: BOTH parties AND their counsel
Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) 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 pretrial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]
When non-appearance is excused: A party’s non-appearance 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; (c) To enter into stipulations/admissions of facts and of documents.
NOTICE OF PRE-TRIAL
When pre-trial conducted - 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. [Sec. 1, Rule 18] (1) Specifically, the motion is to be filed within 5 days after the last pleading joining the issues has been served and filed [Admin Circ. No. 3-99, Jan 15, 1999] (2) Within 5 days from date of filing of the reply, plaintiff must promptly move exparte 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. 03-109-SC, July 13, 2004]
NOTE: The written special authority must be in the form of an SPA (Sec. 23, Rule 38). If the party is a corporation, the SPA must be supported by a board resolution. Effect of Failure to Appear; unexcused nonappearance: [Rule 18, Sec. 5] Order of Non-suit is issued to the party who failed to appear at pre-trial. Who fails to appear
NOTE: 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]
Plaintiff
Notice of Pre-trial: The notice shall be served on: (1) Counsel (2) Party, only if he has no counsel [Sec. 3, Rule 18]
Defendant
Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof
NOTE: The non-appearance of defendant in pre-trial is not a ground to declare him in default. Thus, we distinguish:
The sufficiency of the written notice of pre-trial is irrelevant where evidence shows that counsel and the parties actually knew of the pre-trial [Bembo v. CA]
PAGE 64
UP LAW BOC
Default by defendant [Rule 9, Sec. 3]
CIVIL PROCEDURE
Contents of a Pre-Trial Brief (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 appear by defendant [Rule 18, Sec. 5]
Upon motion and Not required notice to defendant. Requires proof of Not required failure to answer Court to allow Court to render plaintiff to present judgment, unless it evidence ex parte, requires submission of then the court shall evidence render judgment 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
Failure to File Pre-trial Brief: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
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.
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
Remedy of Party who has been non-suited: (1) For a non-suited plaintiff: (a) Motion to set aside the order of nonsuit (b) Affidavit of merit is not necessary in a simple motion for reconsideration of the order of non-suit EXCEPT as to show the cause of the failure to appear at the pre-trial [Jonathan Landoil International Inc. v. Mangudadatu]
PROCEEDINGS AFTER TERMINATION OF PRE-TRIAL Record of Pre-Trial: The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order. 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.
(2) For a non-suited defendant: (a) File a motion for reconsideration without need for affidavits of merits regarding the fraud, accident, mistake, or excusable negligence [Lucero v. Dacayo]
PRE-TRIAL BRIEF; FAILURE TO FILE
EFFECT
REMEDIAL LAW
OF
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 [Velasco v. Apostol] (3) Amendment to conform to evidence [Rule 10, Sec. 5]
Rule 18, Sec. 6 makes it the MANDATORY duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein. When to File Pre-Trial Brief: Parties shall file and serve their respective pre-trial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.
PAGE 65
UP LAW BOC
CIVIL PROCEDURE
On Compromise: Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement. If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)] NOTE: AM 03-1-09-SC - No termination of pre-trial for failure to settle
Civil Case [AM No. 03-1-09] requires the proceedings during the preliminary conference to be recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign) The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4] A pre-trial brief is specifically required to be submitted [Rule 18, Sec. 6]
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE Civil Case
Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1]
Made after the pleading has been served and filed [Rule 18, Sec. 1]
Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)] The arrangements and admissions in the pretrial are not required to be signed by both parties and their counsels. Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7]
Criminal Case Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1] Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1] Does not include the considering of the possibility of amicable settlement of one’s criminal liability as one of its purposes [Rule 118, Sec. 1] (Stricter procedure) All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]
REMEDIAL LAW
Criminal Case
Sanctions imposed upon counsel for accused or prosecutor [Rule Sec. 3]
are the the the 118,
A pre-trial brief is not specifically required.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
Special Rules of Court on ADR [AM No. 07-1108-SC] The parties may be submitted to ADR during pre-trial. If ADR fails, judge will schedule the continuance of the pre-trial conference The Alternative Dispute Resolution System Means 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 this Act, in which a neutral third party participates to assist in the resolution of issue [RA 9285, Sec. 3] Policy Behind the ADR: 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]
PAGE 66
UP LAW BOC
CIVIL PROCEDURE
In Relation to Pre-Trial: (1) 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 PMC mediation unit for purposes of mediation if available.[AM No. 03-1-09-SC]
REMEDIAL LAW
(2) Mediation (a) a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute (b) includes conciliation
(2) 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 [AM No. 03-109-SC]
(3) Mini-Trial (a) 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
Exception to the Application of RA 9285: (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.
(4) Early Neutral Evaluation (a) An ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute
Modes of Alternative Dispute Resolutions: (1) Arbitration [RA 9285, Sec. 1) (a) A voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award\ (b) Different Kinds: (1) Domestic Arbitration – an arbritration that is not international; governed by RA 876 (Arbitration Law) [RA 9285, Sec. 32] (2) International Arbitration - An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business [Article 3, Model Law on International Commercial Arbritration]
(5) Combination of ADR (a) Example: Med-Arb - step dispute resolution process involving both mediation and arbitration Special Rules of Court on ADR [AM No. 0711-08-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; (10) Recognition and Enforcement of a Foreign Arbitral Award; (11) Confidentiality/Protective Orders; and (12) Deposit and Enforcement of Mediated Settlement Agreements. PAGE 67
UP LAW BOC
CIVIL PROCEDURE
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.
REMEDIAL LAW
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.
Notice – served once court finds petition sufficient in form and substance 1. Notice is sent to parties directing them to appear at a particular time and date for hearing 2. Hearing shall not be set no later than 5 days from lapse of period for filing opposition or comment 3. Notice to respondent shall contain a statement allowing him to file a comment or opposition to petition within 15 days from receipt of notice 4. For Referral to ADR or Confidentiality/Protection Orders: a. Follow Rule 15 Rules of Court
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.
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. 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;
PAGE 68
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRE – TRIAL
NO SETTLEMENT
Agreements made by parties; Amendments to pleading; Schedule of Trial
FAILURE TO APPEAR
If plaintiff is absent when so required to attend, court may dismiss the case
AMICABLE SETTLEMENT
If defendant is absent, court may hear evidence of plaintiff ex parte
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
PAGE 69
UP LAW BOC
CIVIL PROCEDURE
INTERVENTION
REMEDIAL LAW
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)]
A legal remedy whereby a person is permitted to become a party in a case, by either: (1) Joining the plaintiff; (2) Joining the defendant; (3) Asserting his right against both plaintiff and defendant, considering that either: (a) He has a legal interest in the subject matter of the action; (b) He has legal interest in the success of either of the parties (c) He has legal interest against both of the parties (d) He is going to be adversely affected by the disposition of the property in the custody of the court [Rule 19, Sec. 1]
TIME TO INTERVENE How Intervention is Done (1) By a motion to intervene (2) Attaching the pleading-in-intervention to the motion (3) Copies served on the original parties [Rule 19, Sec. 2]
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]
When should it be filed – The motion to intervene may be filed at ANY TIME before rendition of judgment by the court General Rule: Allowance of intervention is discretionary with the court
REQUISITES FOR INTERVENTION
The requisites of intervention are: (1) 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]
Exception: When the indispensable party
intervenor
is
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 complaint-in-intervention, unless a different period is fixed by the court.
REMEDY FOR DENIAL OF MOTION TO INTERVENE
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 and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)]
(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
PAGE 70
UP LAW BOC
CIVIL PROCEDURE
(b) Hence, anyone who objects can file a petition for certiorari for improper granting of intervention
books, documents, or things demanded which must appear to the court to be prima facie relevant Kinds: (1) Subpoena duces tecum (SDT) (2) Subpoena ad testificandum (SAT)
SUBPOENA
Subpoena is 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
SUBPOENA AD TESTIFICANDUM A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority or for the taking of his deposition
SUBPOENA DUCES TECUM
Summons
A process directed to a person requiring him to bring with him books, documents, or other things under his control
An order to answer complaint Served on defendant
REMEDIAL LAW
the
The SDT is, in all respects, like the ordinary SAT 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
Does not need tender of kilometrage and other fees
Who May Issue: [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 (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
Before SDT may issue, the court must first be satisfied that the following requisites are present: (1) Test of RELEVANCY: The books, documents, or other things requested must appear prima facie relevant to the issue subject of the controversy (2) Test of DEFINITENESS: Such books must be reasonably described by the parties to be readily identified (test of definiteness)
NOTE: Sec. 38(2), BP 129 – 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
6]
SERVICE OF SUBPOENA [Rule 21, Sec. How Made: Same manner as PERSONAL or SUBSTITUTED service of summons Formalities: (1) The original shall be exhibited (2) A copy is delivered to the person on whom it is served (3) Fees and costs: (a) Tender to the person on whom it is served the fees for one day’s attendance and the kilometrage allowed by the Rules
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) In case of a subpoena duces tecum, shall contain a reasonable description of the
PAGE 71
UP LAW BOC
CIVIL PROCEDURE
(1) EXCEPT: Tender need not be made if issued by or on behalf of the Republic or an officer of agency thereof
(b) The articles sought to be produced do not appear prima facie to be relevant to the issues; or (c) The person asking for the subpoena does not advance the cost for the production of the articles desired (d) Failure to tender witness fees and kilometrage allowed by the Rules
(b) If SDT, reasonable cost of producing the books, documents, or things demanded shall also be tendered Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance
COMPELLING ATTENDANCE WITNESSES; CONTEMPT
REMEDIAL LAW
(2) For quashal of subpoena ad testificandum (a) That the witness is not bound thereby, or (b) That the witness fees and kilometrage allowed by the Rules were not tendered when subpoena was served
OF
MODES OF DISCOVERY
General Rule: (1) The court which issued the subpoena may 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 [Sec. 8]
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 Purpose – to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark
(2) The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it [Sec. 9] 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) and (a) NOTE: This refers to civil cases only, not criminal
Modes: (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
(2) Permission of the court in which the detention prisoner’s case is pending was not obtained
DEPOSITIONS [Rule 23]
QUASHING OF SUBPOENA [Rule 21,
PENDING
ACTION
Meaning of Deposition - Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.
Sec. 4]
How Done: By motion promptly made Period to File: A motion to quash may be made at or before the time specified in the subpoena
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
Grounds: (1) For quashal of subpoena duces tecum: (a) It is unreasonable and oppressive
PAGE 72
UP LAW BOC
CIVIL PROCEDURE
(2) Dual functions: (a) A method of discovery (b) A method of presenting testimony in lieu of oral open court testimony
REMEDIAL LAW
(2) Deposition of an ADVERSE party may be used for any purpose (a) It may be used as an admission (b) A deposition 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
Scope of Examination (1) Matter which is relevant to the subject of the pending action made by the pleadings or likely to arise under the pleadings (2) Matter that is not privileged (3) As well as: (a) The existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and (b) The identity and location of persons having knowledge of relevant facts [Rule 23, Sec. 2]
(3) Deposition of a witness or party may be used for any purpose under the following circumstances: (a) Witness is dead – there must be proof of death or presumption of death and that deposition was legally taken (b) Non-residence of deponent – where it appears that the absence of deponent was procured by the party offering the deposition of the same cannot be received in evidence
NOTE: Under such limitations as the court may order under Sec. 16 and 18 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
(c) Disability of a witness – age, sickness, infirmity, or imprisonment. The certificate of the attending physician that the witness is in a precarious condition is sufficient (d) Inability to procure attendance of witness by subpoena
(2) Without leave of court (a) AFTER answer has been served
Deponent
Depositions before an answer should be granted only under special circumstances where the conditions point to the necessity of presenting a strong case for allowance of the motion. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issues.
Any person
Use By any party for contradicting or impeaching the testimony of deponent as witness
A party or anyone who at the time of the deposition was an officer, director, or managing agent, of a By an adverse party public or private for any purpose corporation or partnership, or association which is a party By any party for any Witness, whether or purpose if the court not a party finds the 5 instances occurring
Specific Uses of Depositions Pending Action: the use of depositions depends on whether deponent is a party or not [Rule 23, Sec. 4] (1) The depositions may be used for contradicting or impeaching the testimony of deponent not as proof of specific facts (a) If deponent does not testify and is not a party, deposition cannot be used for this purpose
NOTE: Depositions can be used as evidence by a party (“for any purpose”) under the specific conditions in Sec. 4
PAGE 73
UP LAW BOC
CIVIL PROCEDURE
REMEMBER: Generally, a deposition is not generally supposed to be 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]. Exceptions to this rule are those found in Sec. 4.
REMEDIAL LAW
(2) After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Sec. 16] (3) The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Sec. 1] (4) The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or recross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Sec. 3]
Persons before whom depositions may be taken [Rule 23, Sec. 10 and 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
(5) The officer before whom the deposition is being taken has no authority to rule on objections interposed during the course of the deposition although any objections shall be noted by him upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection. [Rule 23, Sec. 17]
(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
When may objections to admissibility be made [Rule 23, Sec. 6] - 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
Disqualification by interest: No deposition shall be taken before a person who is: [Rule 23, Sec. 13] (1) A relative within the 6th degree of affinity or consanguinity (2) An employee or counsel of any of the parties (3) A relative within the same degree or employee of such counsel (4) Financially interested in the action
Effect of Taking and Using Depositions: (1) General Rule: 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. [Rule 23, Sec. 7]
Procedure in Taking Depositions: (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Sec. 15]
(2) Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness [Sec. 8] (3) Exceptions to the Exception: (a) The deposition is that of an opposing party, OR (b) The deposition is used to impeach or contradict opponent. [Sec. 8]
PAGE 74
UP LAW BOC
CIVIL PROCEDURE
When may taking of deposition be terminated or its scope limited [Rule 23, Sec. 18] (1) How done: (a) A motion or petition for termination or limit examination is filed by any party or of the deponent (b) Filed in the court where the action is pending OR the RTC of the place where deposition is being taken (2) When done: At any time during the taking of deposition (3) Grounds: That the examination is being conducted: (a) In bad faith, or (b) In such manner as unreasonably to annoy, embarrass or oppress the deponent or party
Error and Irregularities
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
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 party depositions 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 before becomes known or whom it is to be could be discovered taken with reasonable diligence Not waived by failure to Objection to the make them before or during competency of the taking 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 the form of questions or answers, in the oath or Occurring at affirmation, or in conduct of parties and errors of any oral kind which might be examination and other obviated or removed if promptly prosecuted are particulars waived
REMEDIAL LAW
Effect 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
Orders that may be issued by 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 enclosed in sealed envelopes to be opened as directed by the court;
PAGE 75
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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. (3) At least twenty (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. (4) 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.
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [Rule 24] A deposition before action and a deposition pending appeal are referred to as perpetuation of testimony (perpetuam rei memoriam) because their objective is to perpetuate the testimony of a witness for future use. Purpose: To perpetuate the testimony of witnesses for probable 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 Pending Action:
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]
(1) File a verified petition in the court of the place of the residence of any expected adverse party (a) Petition shall be entitled in the name of petitioner (b) It shall show: (i) That the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (ii) The subject matter of the expected action and his interest therein; (iii) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (iv) The names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (v) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.
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 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.
PAGE 76
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Objections to Interrogatories: [Rule 25, Sec. 3] Objections may be presented to the court within 10 days after service thereof with notice as in case of a motion. Effect: Answers shall be deferred until objections are resolved
WRITTEN INTERROGATORIES TO ADVERSE PARTIES [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]
Grounds: (1) They require the statements of conclusions of law or answers to hypothetical questions or opinion, or mere hearsay, or matters not within the personal knowledge of the interrogated party (2) Frivolous interrogatories need not be answered [Herrera]
Service of Interrogatories to Parties – 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. NOTE: Written interrogatories must not only be served but also filed.
Scope and Use of Interrogatories [Rule 25, Sec. 5]
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
Interrogatories may relate to any matters than can be inquired into under Sec. 2, Rule 23 Answers may be used for the same purposes provided in Sec. 4, Rule 23
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]
Effect of Failure to Serve Interrogatories [Rule 25, Sec. 6]
Written
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
Answer to Interrogatories: [Rule 25, Sec. 2] (1) Written interrogatories and the answers thereto must both be filed and served (a) Hence, the answers may constitute as judicial admissions [Sec. 4, Rule 129]
UNLESS thereafter allowed by the court for good cause shown and to prevent a failure of justice
(2) Form of answer: (a) It must be answered fully in writing (b) And signed and sworn to by the person making them
NOTE: This should not be confused with the provisions of Rule 29. Sec. 6 Rule 25 as well as a similar provision in Rule 26 are directed to a party who fails or refuses to resort to discovery procedures therein. Rule 29 provides for sanctions or other consequences upon a party who refuses or fails to comply with discovery procedures duly availed of by his opponent
(3) Service and Filing (a) Party upon whom interrogatories were served shall file and serve a copy of the answers on the party submitting interrogatories (b) Time period: (i) Within 15 days after service thereof (ii) UNLESS court extends or shortens the time on motion and for good cause shown
PAGE 77
UP LAW BOC
CIVIL PROCEDURE
Written Interrogatories v. Interrogatories to Parties Written Interrogatories
REMEDIAL LAW
The request for admission MUST BE SERVED ON THE PARTY and NOT ON 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)
Interrogatories to Parties
Implied Admission by Adverse Party [Rule 26, Sec. 2] 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 (1) Contents of the sworn statement: (a) Denying specifically the matters of which an admission is requested, or (b) Setting forth in detail the reasons why he cannot truthfully either admit or deny those matters
The deposition is takes There is no before a deposition officer deposition officer. Questions are prepared beforehand. These are submitted to the The questioning is deposition officer who will direct. ask the deponent the questions and he will record the answers. The deposition of any The deposition of person may be taken, the parties are whether he is a party or only taken. not.
(2) Period to file and serve the sworn statement (a) Within a period designated in the request (b) Which shall not be less than 15 days after service thereof, or (c) Within such further time as the court may allow on motion
REQUEST FOR ADMISSION [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. 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]
Objections to any request for admission 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.
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
Effect of Failure to File and Serve Request for Admission [Rule 26, Sec. 5] A party who fails to file and serve a request for admission on the adverse party of material and relevant fact at issue which are, or ought to be, within the personal knowledge of the latter: (1) He shall not be permitted to present evidence on such facts
Effect of Admission [Rule 26, Sec. 3] (1) Any admission made by a party pursuant to such request is for the purpose of the pending action only (2) It shall not: (a) Constitute an admission by him for any other purpose; nor (b) Be used against him in any other proceeding
When made: At any time after issues have been joined.
PAGE 78
UP LAW BOC
CIVIL PROCEDURE
(2) UNLESS otherwise allowed by the court for good cause and to prevent a failure of justice
Procedure: (1) A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. [Rule 27, Sec. 1]
NOTE: This is similar to the provision on unjustified failure of a party to avail of written interrogatories under Sec. 6, Rule 25.
(2) The court in which the action is pending shall issue an order: (a) which shall specify the time, place and manner of making the inspection and taking copies and photographs, and (b) which may prescribe such terms and conditions as are just. [Rule 27, Sec. 1]
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [Rule 27]
Rule 27 applies only to a PENDING ACTION and the documentary things subject of the motion must be only WITHIN the possession, control, or custody of a party Production or Inspection of Documents or Things
Subpoena Duces Tecum
A means Essentially a mode compelling of discovery production evidence
Court Order: (1) The court may: (a) Order any party to produce and permit the inspection and copying or photographing, (i) By or on behalf of the moving party (ii) Of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action (iii) And which are in his possession, custody or control
of of
Rules is limited to It may be directed to a the parties of the person whether a action party or not The order under this Rule is issued only It may be issued upon upon motion with an ex parte notice to the adverse application party
(b) Order any party to permit entry upon designated land or other property in his possession or control (i) For the purpose of inspecting, measuring, surveying, or photographing, property or any designated relevant object or operation thereon
May be asked before May be asked only and/or during trial during trial Necessary to show Not necessary good cause show good cause
to
Grounds for quashal: (1) Unreasonable, Ground for quashal: oppressive, No good cause irrelevant shown (2) Failure to advance reasonable costs of production Consequence disobedience, Rule 29, Sec. 3
REMEDIAL LAW
(2) Contents of the Order (a) Time, place, and manner of making the inspection and taking copies and photographs, and (b) Such terms and conditions as are just
of Disobedience see constitutes contempt of court
PAGE 79
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(3) If party examined refuses to deliver such report: (a) The court on motion and notice may make an order requiring delivery on such terms as are just (b) And if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial
How Done: (1) Motion for examination is filed (2) Filed in the court in which the action is pending (3) Court may, in its discretion, order him to submit to a physical or mental examination by a physician
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
[Rule 28] When available: In an action in which the mental or physical condition of a party is in controversy. [Rule 28, Sec. 1] - NOTE: It is the mental and physical condition of a PARTY not a WITNESS that is in controversy
NOTE: Since the results of the examination are intended to be made public, the same are not covered by physician-patient privilege [Sec. 24(b), Rule 130] Requisites to Obtain an Order for Examination (1) A motion must be filed for the physical and mental examination (2) The motion must show good cause for the examination (3) Notice to the party to be examined and to all other parties; (4) The motion shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made [Rule 28, Sec. 2]
CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY [Rule 29] Refusal to Comply with Modes of Discovery
Sanctions
(1) The court may, upon proper application, compel a refusing deponent to answer [Sec. 1] (a) If granted, and refusal to answer is without substantial justification, court may require the refusing party to pay proponent Refusal to the reasonable answer any expenses incurred in question obtaining the order [Sec. 1 and 2) (b) If denied, and filed without substantial justification, court may require proponent to pay refusing party the reasonable expenses incurred in obtaining the order
Report of Findings [Rule 28, Sec. 3] (1) If requested by the party examined: (a) The party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions (2) After such request and delivery: (a) The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition
PAGE 80
UP LAW BOC
Refusal to Comply with Modes of Discovery
CIVIL PROCEDURE
Refusal to Comply with Modes of Discovery
Sanctions (2) A refusal to answer after being directed by court to do so may be constituted as contempt of court
REMEDIAL LAW
Sanctions
The court on motion and notice may: (1) Strike out all or any part of Failure of any pleading of party to disobedient party attend or (2) Dismiss the action or serve proceeding or any part answers to thereof written (3) Enter a judgment by interrogatori default against es disobedient party [Sec. 5] (4) 4. Order payment of reasonable expenses incurred by the other including attorney’s fees
Refusal to be Cite the disobedient deponent Sworn [Sec. in contempt of court 2] 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 Refusal to support or oppose claims answer or defenses designated (3) Strike out pleadings or questions or parts thereof refusal to (4) Stay further proceedings produce (5) Dismiss the action or documents proceeding or any part or to submit thereof to physical or (6) Render a judgment by mental default against examination disobedient party [Sec. 3] (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
NOTE: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. [Rule 29, Sec. 6]
TRIAL A 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 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)]
NOTICE OF TRIAL [Rule 30, Sec. 1]
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.
The court, upon proper application, issue an order requiring the other party to pay him reasonable expenses incurred, including attorney’s fees Refusal to PROVIDED that party admit under requesting proves Rule 26 genuineness of such [Sec. 4] document or truth UNLESS court finds: (1) There were good reasons for denial (2) Admissions sought were of no importance
General Rule: When an issue exists, trial is necessary. Decision should not be made without trial. Exceptions: When there may be judgment without trial (1) Judgment on the pleading [Rule 34] (2) Summary Judgment [Rule 35] (3) Judgment on Compromise (4) Judgment on Confession (5) Dismissal with Prejudice [Rule 17]
PAGE 81
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(6) Judgment under Rule on Summary Procedure, and (7) Stipulation of fact
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.
ADJOURNMENTS AND POSTPONEMENTS
Stipulation Of Facts in Civil Cases May be signed by the counsel alone who has an SPA May be made verbally or in writing
[Rule 30, Sec. 2]
General Rule: 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
Stipulation Of Facts in Criminal Cases Must be signed by both counsel and accused Strict; it must always be in writing
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]
Limitation: 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
ORDER OF TRIAL; REVERSAL OF ORDER
Exception: Unless authorized in writing by the Court Administrator, SC
[Rule 30, Sec. 5]
Postponement is not a matter of right. It is addressed to the sound discretion of the court. [Riano, citing Garces v Valenzuela (1989)]
General Rule: Trial shall be limited to the issues stated in the pre-trial order.
REQUISITES OF POSTPONE TRIAL
Exceptions: (1) Provisions on separate trials under Rule 31, Sec. 2 (2) When for special reasons the court directs otherwise
MOTION
TO
(1) For absence of evidence [Rule 30, Sec. 3] (a) Submission of affidavit showing that: (i) The evidence is relevant; and (ii) Diligent efforts had been exerted to procure the evidence
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 (6) Parties may then respectively adduce rebutting evidence only (a) Unless the court permits them to adduce evidence upon original case (7) Upon admission of evidence, case submitted for decision (a) Unless court directs parties to argue or to submit respective memoranda or any further pleading
(2) For illness of party or counsel [Rule 30, Sec. 4] (a) A motion for postponement stating the ground relied upon must be filed; and (b) The motion must be supported by an affidavit or sworn certification showing: (1) The presence of such party or counsel at the trial is indispensable; and (2) That the character of his illness is such as to render his non-attendance excusable
AGREED STATEMENT OF FACTS
[Rule 30, Sec. 6] The parties may agree in writing upon the facts involved in the litigation and submit the case for judgment in the facts agreed upon without the introduction of evidence PAGE 82
UP LAW BOC
CIVIL PROCEDURE
Reverse Order of Trial: In this situation, the defendant presents evidence ahead of the plaintiff
REMEDIAL LAW
law or facts in common with each other [Active Woods Products Co. Inc. v. CA] SEVERANCE
When Proper: If the defendant in his answer relies upon an affirmative defense
When proper: This contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints or issues which may be separately tried
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]
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]
Ratio: Plaintiff need not have to present evidence since judicial admissions do not require proof [Sec. 2, Rule 129]
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
CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL [Rule 31] CONSOLIDATION
DELEGATION OF RECEPTION OF EVIDENCE [Rule 30, Sec. 9]
When proper: When actions involving a common question of fact or law are pending before the court
General Rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties.
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 (3) Such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay
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.
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
However, the clerk of court has no power to rule on objections to any question/admission of exhibits.
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)]
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 agreement by parties nor their acquiescence can justify its violation. [Umali-Paco v. Quilala]
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 PAGE 83
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Order of Reference: [Rule 32, Sec. 3] (1) When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference (2) Contents of the order: (a) It may specify or limit the powers of commissioner (b) It may direct him to report only upon particular issues; or to do or perform particular acts; or to receive and report evidence only (c) It may fix the date for beginning and closing the hearings and for the filing of his report
TRIAL BY COMMISSIONERS [Rule 32] CONCEPTS 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) Swear witnesses (4) Issue subpoena and subpoenas duces tecum (5) Rule upon the admissibility of evidence (a) 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: (a) Trial of an issue of fact requires the examination of a long account on either side (b) Taking of an account is necessary for the court’s information before judgment, or for carrying judgment/order into effect. (c) A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.
NOTE: Limitations on the powers of commissioner are found in the Order of Reference. 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 (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
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
REPORT OF COMMISSIONER [Rule 32, Sec. 9] (1) When filed: (a) Filed upon completion of the trial or hearing or proceeding before the commissioner (b) Filed with the court
REFERENCE ORDERED ON MOTION When proper: (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, in any stage [Rule 32, Sec. 2] PAGE 84
UP LAW BOC
CIVIL PROCEDURE
(2) Contents: (a) Report in writing upon the matters submitted to him by the order of reference (b) When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report (c) He shall attach all exhibits, affidavits, depositions, papers, and transcripts, if any, of testimonial evidence presented before him
REMEDIAL LAW
DEMURRER TO EVIDENCE CONCEPTS: Definition - A species of MTD 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] It is invoked after the plaintiff has presented all the evidence available to him Judgment on Demurrer to Evidence It is a 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.
NOTICE AND HEARING ON THE REPORT [Rule 32, Sec. 10 and 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
Distinctions Demurrer to evidence
NOTE: Objections to the report 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
Motion to dismiss
Presented before a It is presented after responsive pleading the plaintiff has is made by the rested his case defendant It may be based on The ground is based any of those on the insufficiency enumerated in Rule of evidence 16
Hearing on the Report: (1) When made: Upon expiration of the 10 day period in Sec. 10 (2) The report shall be then set forth in hearing (3) After the hearing, the court shall issue an order, either: (a) Adopting, modifying, or rejecting the report in whole or in part (b) Or recommitting it with instructions (c) Or requiring the parties to present further evidence before the commissioner or the court
If the motion to If the motion is dismiss is denied, the denied, the defendant may file defendant may his responsive present his evidence pleading If the motion is granted, the complaint is dismissed The plaintiff’s remedy is to appeal
PAGE 85
If the motion to dismiss is granted, the complaint is dismissed and depending on the ground, the complaint may be refiled
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF DENIAL; EFFECT OF GRANT Grant of demurrer
WAIVER OF RIGHT TO PRESENT EVIDENCE 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)]
Denial of demurrer
The case shall be The defendant shall dismissed have the right to present evidence
Two scenarios:
The court should set the date for the reception of the defendant’s evidencein-chief [Northwest Airlines v. CA (1998)]
Motion denied
xxx
Denial is INTERLOCUTORY Sec. 1, Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based) will NOT apply. The denial is NOT appealable
The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario (2000)] Equivalent to judgment (i.e. based on the merits of the evidence presented so far)
Motion granted but reversed on appeal
Movant shall have the Movant is deemed to right to present his have waived his right evidence to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence
Plaintiff's remedy would be to appeal. However, 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)]
REMEDIAL LAW
An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan (2003)]
PAGE 86
Order of the court is an ADJUDICATION ON THE MERITS Hence, the requirement in Sec. 1, Rule 36 should be complied with
UP LAW BOC
CIVIL PROCEDURE
Judgments and Final Orders
DEMURRER TO EVIDENCE IN CIVIL CASES VERSUS CRIMINAL CASES Civil Cases
Criminal Cases
Defendant need not ask for leave of court
May be filed with or without leave of court. Leave of court is necessary so that the accused could present his evidence if demurrer is denied
If the court finds plaintiff’s evidence insufficient, it will grant demurrer by dismissing the complaint
If the court finds the prosecution’s evidence insufficient, it will grant demurrer by rendering judgment of acquittal.
JUDGMENTS IN GENERAL 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/proceeding [Macahilig v. Heirs of Magalit (2000)] Requisites of a Valid Judgmeny [Rule 36, Sec. 1; Art. VIII, Sec. 14, 1987 Constitution] (1) Court/tribunal must be with authority to hear and determine the matter before it; (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; (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 35, Sec. 1]
The judgment of dismissal is appealable. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case Judgment of acquittal on the basis of is NOT appealable. plaintiff’s evidence Double jeopardy sets with the consequence in. that the defendant already loses his right to present evidence. There is no res judicata in dismissal due to demurrer. The plaintiff files a motion to deny motion to demurrer to evidence
The court may motu proprio deny the motion
If court denies the demurrer, defendant will present his evidence
If court denies the demurrer filed with leave, accused may present his evidence. If court denies the demurrer filed without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence
REMEDIAL LAW
Kinds of Judgment: (1) JUDGMENT ON COMPROMISE - It is 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 FAME. (2) JUDGMENT UPON CONFESSION - It is 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, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful.
PAGE 87
UP LAW BOC
CIVIL PROCEDURE
(b) JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial, the defendant both: (a) confessed the plaintiff’s cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial.
REMEDIAL LAW
(9) SEPARATE JUDGMENT - It is 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] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made.
(3) JUDGMENT UPON THE MERITS - It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is “on the merits” when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts
(10) MEMORANDUM DECISION - A decision of the appellate court which adopts the findings and conclusions of the TC. (a) A judgment is considered rendered upon the filing of the signed decision. (b) This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.
(4) CLARIFICATORY JUDGMENT - It is rendered to clarify an ambiguous judgment or one difficult to comply with. (5) JUDGMENT NUNC PRO TUNC - Literally, “now for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v. Tan Pho (1923)]
JUDGMENT WITHOUT TRIAL When trial is NOT necessary: (1) The pleadings of the parties tender no issue at all – judgment on the pleadings may be directed by the court [Rule 34] (2) There is actually no genuine issue from the pleadings, affidavits, depositions and other papers – court may render a summary judgment [Rule 35] (3) Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18; Art. 2028 Civil Code] (4) Complaint has been dismissed with prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)] (5) Case falls under the Rules on Summary Procedure (6) Agreed statement of facts [Rule 30, Sec. 6]
(6) JUDGMENT SIN PERJUICIO - It may refer to a dismissal of a case without prejudice to it being re-filed. (7) CONDITIONAL JUDGMENT - It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition [Cu-Unjieng v. Mabalacat Sugar Co. (1940)] (8) SEVERAL JUDGMENT - It is 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] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other.
PAGE 88
UP LAW BOC
CIVIL PROCEDURE
CONTENTS OF A JUDGMENT
REMEDIAL LAW
JUDGMENT ON THE PLEADINGS
Parts of a Judgment (1) Body, Ratio decidendi, or Opinion of the court – It contains the findings of facts and conclusions of law; (2) Fallo, or Disposition of the case – 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)]; The part of the judgment that is subject to execution [Riano] (3) Signature of the judge
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 It has been held that a motion for a judgment on the pleadings, were the answer admits all material averments, 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], or motu proprio under Rule 18(2g) [Luzon Dev. Bank v. Conquilla]
Distinction between Judgment and Opinion of the Court (1) A judgment (or FALLO) must be distinguished from an opinion. (2) The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. (3) While the two may be combined in one instrument, the opinion forms no part of the judgment. (4) So there is a distinction between the findings and conclusions of a court and its judgment. (5) While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself. (6) 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)]
Grounds for Judgment on the Pleadings [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 admits material allegations of the adverse party’s pleading Judgment on the Pleadings is NOT proper in actions for: (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
Conflict Between Dispositive Portion and Body of Decision Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls.
NOTE: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for judgment on the pleadings.
Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation (2008)]
SUMMARY JUDGMENTS
Summary Judgment is a judgment rendered by a court without trial if it is clear that there exists NO GENUINE ISSUE or controversy as to any material fact, EXCEPT as to the amount of damages
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)]
PAGE 89
UP LAW BOC
CIVIL PROCEDURE
Genuine Issue - an issue of fact which calls for the presentation of evidence as distinguished from an issue, which is a sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine issue for trial
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.
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 (5) Court renders summary judgment
Nature – It is interlocutory in nature and is not a final and appealable judgment. [Guevarra v. CA] Duty of the Court [Rule 35, Sec. 4] (1) Ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted based on: (a) An examination of the pleadings and evidence before it (b) Interrogation of the counsel
NOTE: Damages must still be proven even if not denied.
(2) Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy
Bases for Summary Judgment: (1) Affidavits made on personal knowledge; (2) Depositions of the adverse or a 3rd party; [Rule 23] (3) Admissions of the adverse party; [Rule 26] (4) Answers to interrogatories. [Rule 25]
(3) Direct further proceedings as are just (4) Conduct trial on the controverted facts accordingly 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)]
WHO MAY FILE Who may file the motion Claimant Defendant
REMEDIAL LAW
When May file the motion only after the answer has been served May file the motion any time
AFFIDAVITS AND ATTACHMENTS These are submitted to support the motion for summary judgment.
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.
Form of affidavits and supporting papers [Rule 35, Sec. 5] (1) Made on personal knowledge (2) Shall set forth such facts as would be admissible in evidence (3) Shall show affirmatively that the affiant is competent to testify to the matters stated therein. (4) Sworn or certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto OR served therewith.
TEST: Whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or claim is clearly meritorious [Estrada v. Consolocaion, et al.]
PAGE 90
UP LAW BOC
CIVIL PROCEDURE
Affidavits in bad faith (1) Affidavits presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay (2) Effects: (a) Court shall order the offending party or counsel to pay the other party – amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees (b) Court may adjudge the offending party or counsel guilty of contempt, after hearing
Summary Judgment Available only in actions to recover a debt, or for a liquidated sum of money or for declaratory relief If filed by plaintiff, it must be filed at any time after an answer is served. If filed by defendant, may be filed at any time even before there is answer
SUMMARY JUDGMENT
Validity: Sec. 3, Rule 35 requires: (1) That there must be NO genuine issue as to any material fact, except for the amount of damages; and (2) That the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law
SUMMARY JUDGMENT v. JUDGMENT ON THE PLEADINGS v. JUDGMENT BY DEFAULT Summary Judgment
Based on the pleadings, depositions, admissions, and affidavits Available to both plaintiff and defendant There is no genuine issue between the parties i.e. There may be issues but these are irrelevant 10-day notice required May be interlocutory or on the merits
Judgment on Judgment by The Pleadings Default Available in Available in any action any action except except annulment of annulment of marriage, or marriage, or legal legal separation separation cases cases
There is already an answer filed
There is no answer filed
RENDITION OF JUDGMENTS AND FINAL ORDERS
Judgment on Judgment by The Pleadings Default Based on the complaint Based solely and evidence, on the if pleadings presentation is required Generally available only to the plaintiff, Available to unless the plaintiff defendant presents a counterclaim
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.
DEFINITION JUDGMENT
OF
RENDITION
OF
It is the filing of the judgment with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the 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 and before its filing does not yet constitute the real judgment of the court. [Ago v. CA (1962)]
The answer fails to tender No issue as an issue or no answer is there is an filed by the admission of defending material party allegations 3-day notice required
REMEDIAL LAW
3-day notice rule applies
On the merits On the merits
PAGE 91
UP LAW BOC
CIVIL PROCEDURE
PERIOD OF RENDITION [Art VIII, Sec. 5,
ENTRY OF JUDGMENTS AND FINAL ORDERS [Rule 36, Sec. 2]
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.
When entered: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments Date of Finality: Date of finality is the date of entry.
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.
Contents of the Records in the Book of Entries: (1) Dispositive part of the judgment or final order (2) Signed by the clerk with a certification that such judgment or final order has become final and executory.
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 [Arap v Mustafa (2002)]
AMENDMENTS TO JUDGMENT
ENTRY OF JUDGMENT AND FINAL ORDER
General Rule: Once a judgment becomes final and executory, such judgment can no longer be disturbed, altered, or modified
DEFINITION 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]
Exceptions: (1) Clerical errors (2) Nunc Pro Tunc entries (3) Void judgments - Final judgment can be annulled on the ground of fraud or lack of jurisdiction or contrary to law [Panlilio v. Garcia] (4) Whenever circumstances transpire after finality of the decision making its execution unjust and inequitable: (a) Cases where, because of supervening events, it becomes imperative, in the higher interest of justice, to direct its modification in order to harmonize the disposition with the prevailing circumstances [Seavan Carrier Inc. v. GTI Sportswear Corp.] (b) Whenever it is necessary to accomplish the aims of justice [Pascual v. Tan]
It is the filing of the signed decision with the clerk of court, and not its pronouncement in open court that constitutes rendition of judgment [Ago v. CA] 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 Rendition of judgment
REMEDIAL LAW
Entry of judgment
Act of clerk of court in entering the Filing of the dispositive portion of judgment with the the judgment in the clerk of court book of entries of judgment
PAGE 92
UP LAW BOC
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
CIVIL PROCEDURE
REMEDIAL LAW
NOTE: Fraud must be extrinsic fraud which means any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who because of such fraud is prevented from presenting his side of the case.
Supplemental decision Does not take the place of or extinguish the original judgment
(2) Newly discovered evidence (a) Requisites: (i) It must have been discovered after the trial (ii) It could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (iii) The evidence is of such weight that if admitted, would probably alter the result of the action; and (iv) It must be material and not merely collateral, cumulative, or corroborative
Serves to add to the original judgment
Post-Judgment Remedies
Grounds for Motion for Reconsideration: (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
MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL REMEDIES BEFORE FINALITY OF JUDGMENT
WHEN TO FILE:
(1) Motion for reconsideration (2) Motion for new trial (3) Appeal
An aggrieved party may file a motion for new trial or reconsideration within the period for taking an appeal.
DEFINITION
The motions are filed with the court which rendered the questioned judgment or final order.
A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure.
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. The 15-day period is deemed to commence upon receipt 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.
GROUNDS: [Rule 37, Sec. 1] Grounds for Motion for New Trial: (1) FAME – Fraud, accident, mistake, excusable negligence (a) Conditions: (i) Which ordinary prudence could not have guarded against; and (ii) By reason of which such aggrieved party has probably been impaired in his rights
Effect of Filing – The filing of a timely motion interrupts the period to appeal.
PAGE 93
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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
FORM AND CONTENTS [Rule 37, Sec. 2]
Form: (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
Resolution [Rule 37, Sec. 4] – he motion shall be resolved within 30 days from submission The 30-day period to resolve the motion is held to be mandatory [Gonzales v. Bantolo (2006)]
NOTE: Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal.
GRANT OF THE MOTION; EFFECT
Contents of a motion for new trial (1) If based on FAME, it shall be supported by an affidavit of merits
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.
NOTE: An affidavit of merits is one which recites the nature and character of FAME on which the motion is based and stating the movant’s good and substantial cause of action or defense and the evidence he intends to present if granted
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).
(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
Partial grant Rule 37, Sec. 7 allows the court to order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest.
Contents of a motion for reconsideration (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 (2) Make express reference to testimonial or documentary evidence or provisions of law alleged to be contrary to such findings or conclusions
REMEDY WHEN MOTION DENIED; FRESH 15-DAY RULE
IS
Effect of Denial of Motion – The judgment or final order shall stand as is Single-Motion Rule [Rule 37, Sec. 5] A party shall not be allowed to file a 2nd motion for reconsideration. Follow the Omnibus Motion Rule
RESOLUTION OF MOTION AND COURT ACTION
NOTE: While a 2nd motion for reconsideration is not allowed, a second motion for new trial is authorized However, it must be based on a ground not existing nor available when the 1st motion was made within the period allowed but excluding the time during which the first motion had been pending.
Court action – The court may: [Rule 37, Sec. 3] (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
PAGE 94
UP LAW BOC
CIVIL PROCEDURE
Fresh 15-Day Rule: The aggrieved party has a “fresh period” of 15 DAYS within which to file his appeal.
Motion for New Trial
NOTES: (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. Filing of a proper motion for new trial interrupts the running of the period of appeal which begins to run again from receipt of the notice of the movant of the order denying his motion (fresh 15 day period) [Phil. Commercial and Industrial Bank v. Ortiz] 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 (3) Rule 37, Sec. 9 says that an order denying a motion for new trial or reconsideration is NOT appealable (a) NOTE HOWEVER: AM 07-7-12 amended Sec. 1 of Rule 41 by deleting “An order denying a motion for new trial or reconsideration” from the nonappealable orders.
Grounds: (1) Fraud, accident, mistake, or excusable negligence (2) Newly discovered evidence Note the qualifications of each
Motion for Reconsideration Second motion from the same party is prohibited.
Second motion may be allowed so long as based on grounds not existing or The prohibition available at the time applies only to final the first motion was orders or judgments, made hence it is allowed in interlocutory orders If the court finds that If a new trial is excessive damages granted, original have been awarded or judgment or final that the judgment or order is vacated. final order is contrary The case stands for to the evidence or law, trial de novo and will it may amend such be tried anew judgment or final order accordingly Available even on Available against the appeal but only on judgments or final the ground of newly orders or both the trial discovered evidence and appellate courts Both are prohibited motions under Summary Procedure
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]
Motion for New Trial
REMEDIAL LAW
APPEALS IN GENERAL NATURE OF APPEAL
(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
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL; MATTERS NOT APPEALABLE
Motion for Reconsideration Grounds: (1) Damages awarded are excessive (2) That evidence is insufficient to justify the decision or final order (3) 3. That decision or final order is contrary to law
Rule 41, Sec. 1, as amended by AM 07-7-12-SC (2007) provides: (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
PAGE 95
UP LAW BOC
CIVIL PROCEDURE
(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; (f) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice.
REMEDIAL LAW
indicates that other things remain to be done. [BPI v. Lee (2012)]
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE
The aggrieved party may file a special civil action under Rule 65. [Rule 41, Sec. 1]
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 Ordinary Appeal
Petition for Review
Appeal by Rule 42 writ of error Case is Case decided decided by by RTC in the RTC in its exercise of its original appellate jurisdiction jurisdiction Petition for Appealed to review with the CA the CA File a verified petition for review with File notice of CA. appeal or Pay docket record of and lawful appeal with fees and court of P500 as origin and deposit for give a copy costs with to adverse the CA. party Furnish RTC and adverse party a copy of such Within 15 Within 15 days from days from notice of notice of judgment for decision to notice of be reviewed appeal and or from 30 days for denial of a records on MFR or appeal MFNT
NOTE: AM 07-7-12-SC removed from the original list “an order denying a motion for new trial or reconsideration.” NOTE, HOWEVER: Rule 37, Sec. 9 which states that no appeal can be made from an order denying MR or MNT. Only final judgments or orders can be appealed as distinguished from interlocutory judgments or orders which are not appealable. Final Order Interlocutory Order Disposes of the Does not dispose of a matter in its entirety, case completely but leaving nothing more leaves something to be done but to more to be decided enforce execution upon. Not appealable except through a petition for Appealable certiorari under Rule 65 Must clearly and No need to comply distinctly state the law with such a and the facts on requirement which 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 PAGE 96
Petition for Review on 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 judgment or order of denial of MFR or MFNT
UP LAW BOC
CIVIL PROCEDURE
ISSUES TO BE RAISED ON APPEAL
Period to Appeal
Limited to cognizable judgments/issues.
Rationale: Appeal is merely a privilege conferred by law upon the litigants. 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)]
PERIOD OF APPEAL Extensions
MTC to RTC By notice of appeal; within 15 No days from notice of extensions judgment or final allowed order By record of appeal; within 30 days from notice of judgment or final order RTC to CA By notice of appeal; No Within 15 days extensions from notice of allowed judgment or final order By record of appeal; within 30 days from notice of judgment or final order
Extensions
MTC to RTC to CA The CA may grant a 15 day extension. 15 days from No further notice of the extension shall judgment or final be granted order OR from except for the denial of MR or most compelling MNT reasons and in no case longer than 15 days. QJA to CA 15 days from The CA may notice of the grant a 15 day award, judgment, extension. No final order or further extension resolution or shall be granted from date of last except for the publication if most compelling required by law reasons and in no OR from denial of case longer than MR or MNT 15 days. RTC to SC RTC to CA to SC CA to SC
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)]
Period to Appeal
REMEDIAL LAW
Effect of MR or MNT Interrupts period to appeal
15 days from notice of The SC may grant judgment or final a 30 day order OR from extension for denial of justifiable petitioner’s MR or reasons. MNT.
Effect of MR or MNT
Fresh period to appeal from denial MR or MNT
Fresh period to appeal from denial MR or MNT
Fresh period to appeal from denial MR or MNT
The fresh period rule shall apply to: (1) Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; (2) Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; (3) Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and (4) Rule 45 governing appeals by certiorari to the Supreme Court. 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)]
Interrupts period to appeal
PAGE 97
UP LAW BOC
CIVIL PROCEDURE
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)]
WHEN TO APPEAL [Rule 40, Sec. 2]
(1) If by notice of appeal, within 15 days after notice to appellant of judgment or final order appealed from (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
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)]
NOTE: The fresh 15 day period rule applies.
Effect of Failure to Perfect Appeal (1) Defeats a party’s right to appeal. (2) Precludes appellate court from acquiring jurisdiction.
HOW TO APPEAL [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
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS [Rule 40] 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 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 If uncontested, judgment is entered in the book of entries
REMEDIAL LAW
Any party may appeal by filing a petition for review with the CA
WHERE APPEAL IS TAKEN
It is taken to the RTC exercising jurisdiction over the area to which the MTC pertains. [Rule 40, Sec. 1]
PAGE 98
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
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(a) This mode of appeal, governed by Rule 41, is taken to the CA on questions of fact or mixed questions of fact and law
PERFECTION OF APPEAL
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
(2) PETITION FOR REVIEW, where judgment was rendered by the RTC in the exercise of its appellate jurisdiction (a) 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
APPEAL FROM ORDERS DISMISSING THE CASE WITHOUT TRIAL; LACK OF JURISDICTION [Rule 40, Sec. 8]
Two Scenarios:
(3) PETITION FOR REVIEW ON CERTIORARI, or appeal by certiorari to the SC (a) 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
(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 (i) If the RTC has jurisdiction, it shall try the case on the merits as if the case was originally filed therein
HOW ORDINARY APPEAL VIA RULE 41 IS MADE:
(b) REVERSE, in which case, it shall remand the case for further proceedings
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
(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 (b) If it has original jurisdiction, the RTC shall decide the case and admit amended pleadings or additional evidence
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]
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.
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 (4) The material dates showing the timeliness of the appeal
APPEAL FROM THE REGIONAL TRIAL COURTS [Rule 41] Modes of Appeal: There are three modes of appeal from judgments or final orders of the RTC:
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.
(1) ORDINARY APPEAL or appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction
PAGE 99
UP LAW BOC
CIVIL PROCEDURE
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
REMEDIAL LAW
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] 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]
PLEADINGS
FILED
[See
Rule
44,
Procedure in the CA]
Appellant’s Brief (1) Filed within 45 days from receipt of notice of clerk that all evidence is attached to record (2) Follow the Efficient Use of Paper Rule, one original properly marked and 2 copies with annexes (3) Attach proof of service to adverse party
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
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
Joint Record on Appeal [Rule 41, Sec. 8] – Where both parties are appellants, they may file a joint record on appeal.
Contents: (1) Subject index (2) Assignment of Errors (3) Statement of the Case (4) Statement of Facts (5) Statement of Issues (6) Arguments (7) Relief (8) Copy of judgment or final order appealed from
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 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
Appellee’s Brief: (1) Filed within 45 days from receipt of appellant’s brief (2) Manner of filing is similar to that in appellant’s brief
When a party is represented by a counsel, service of process must be made on counsel, not on party [Fajardo v. CA]
Contents: (1) Subject index (2) Statement of Facts Statement of Facts (3) Arguments
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.
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 PAGE 100
UP LAW BOC
CIVIL PROCEDURE
Extension of Time for Filing Briefs: (1) General rule: Not allowed (2) Exception: For good reasons and only if motion for extension is filed before expiration of time sought to be extended
REMEDIAL LAW
Residual Powers/Jurisdiction of the RTC After losing jurisdiction but prior to the transmittal of the original record on appeal, the RTC may: (1) Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was filed before expiration of the period to appeal) (2) To issue orders for preservation of the rights of the parties which do not involve matters litigated by appeal (3) To approve compromise prior to the transmittal of the record (4) Permit appeal by an indigent (5) Allow withdrawal of the appeal
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.
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)]
Payment of docket fees in full is mandatory and is a condition sine qua non for the perfection of an appeal. Perfection of Appeal [Rule 41, Sec. 9] (1) 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 (2) 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
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
Effect of Perfected Appeal (1) In appeals by notice of appeal: (a) 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 (b) NOTE: 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 (2) In appeals by record on appeal: (a) 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 (b) NOTE: The effect is limited to the subject matter only. Jurisdiction over the case is still with the trial court
DISMISSAL OF APPEAL [Rule 41, Sec. 13] When can the RTC dismiss the appeal? (1) Prior to transmittal of original record to appellate court; or (2) Prior to transmittal of record on appeal to the appellate court
PAGE 101
UP LAW BOC
CIVIL PROCEDURE
How done: By the court, motu proprio, or on motion to dismiss appeal by a party
REMEDIAL LAW
Conditions: (1) There was a motion filed to this effect (2) Payment in full of docket fees and other lawful fees as well as deposit for costs (3) To be done within the reglementary period
Grounds: (1) Appeal was taken out of time (2) Non-payment of docket and other lawful fees within the reglementary period
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
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS
FORM AND CONTENTS OF THE PETITION FOR REVIEW [Rule 42, Sec. 5] 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]
Under this mode of appeal, it 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. Appeal via Rule 42 is proper when one appeals from a decision of the RTC in the exercise of its APPELLATE jurisdiction. Appeal under Rule 42 may be on either questions of fact or of law or on mixed questions of both
Contents of the petition: (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
HOW APPEAL IS TAKEN; PERIOD OF APPEAL [Rule 42, Sec. 1] 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 WITH REQUIREMENTS [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 (2) Deposit for costs (3) Proof of service of petition (4) Contents of the documents, which should accompany the petition PAGE 102
UP LAW BOC
CIVIL PROCEDURE
ACTION ON PETITION [Rule 42, Sec. 4]
REMEDIAL LAW
PERFECTION OF APPEAL [Rule 42, Sec. 8]
The CA may: (1) Require respondent to file a comment on the petition not a motion to dismiss within 10 days from notice; or
Appeal is deemed perfected as PETITIONER upon: (1) Timely filing of the petition (2) Payment of docket and lawful fees
(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
to
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
REMEMBER: 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.
General Rule: Perfected appeal stays the challenged judgment or final order
COMMENT BY RESPONDENT [Rule 42,
Exceptions: (1) Unless the CA, law, or Rules, provide otherwise (2) Also in civil cases decided under the Rule on Summary Procedure; Stay of judgment is not applicable here since these are immediately executory
Sec. 5]
Form of Comment: (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
SUBMISSION OF 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 (3) Case shall be deemed submitted for decision upon filing of last pleading or memoranda
Contents of Comment: 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
APPEALS FROM QUASIJUDICIAL AGENCIES TO THE COURT OF APPEALS [Rule 43]
DUE COURSE [Rule 42, Sec. 6]
If upon the filing of the comment or such other pleadings as the court may allow or require, or after the expiration of the period for the filing thereof without such comment or pleading having been submitted, 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.
SCOPE
Appeals from awards, judgments, final orders or resolution of or authorized by any quasijudicial agency (QJA) in the exercise of its quasi-judicial functions
PAGE 103
UP LAW BOC
CIVIL PROCEDURE
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
REMEDIAL LAW
Extension of Period: Additional 15 days only (1) Extension is granted upon motion for extension and payment of full docket fees, both within the reglementary period (2) No further extension is allowed except for the most compelling reasons and in no case shall exceed 15 days
NOTE: 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 via Rule 45 [Sec. 12, RA 9282 and AM 07-7-12SC]
HOW APPEAL IS 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
The CTA is no longer a quasi-judicial agency under RA 9282, as of April 7, 2004. 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
CONTENTS OF THE PETITION
Appeal is taken to the CA on questions of fact, of law, or mixed questions of fact and law.
[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
PERIOD TO APPEAL [Rule 43, Sec. 4]
EFFECT OF FAILURE TO COMPLY:
WHERE TO APPEAL [Rule 43, Sec. 3]
Dismissal [Rule 43, Sec. 7] for failure to comply with the following: (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
Period to appeal is 15 days from: (1) Notice of award, judgment, final order, or resolution OR (2) Date of publication, if publication is required by law for its effectivity, OR (3) Denial of petitioner’s MNT or MFR
PAGE 104
UP LAW BOC
CIVIL PROCEDURE
ACTION ON THE PETITION
EFFECT OF APPEAL [Rule 43, Sec. 12]
[Rule 43, Sec. 8]
General Rule: Appeal shall not stay the award, judgment, final order or resolution sought to be reviewed
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
FORM AND CONTENTS COMMENT [Rule 43, Sec. 9]
REMEDIAL LAW
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.
OF
Upon filing of last pleading or memorandum required, case is deemed submitted for decision.
Form of comment: (1) Filed within 10 days from notice following the Efficient Use of Paper Rule (2) Accompanied by the following documents: (a) Clearly legible certified true copies of such material portions of the record referred to therein (b) And such other supporting documents (3) Copy of Comment is served on petitioner with proof of such service filed with the CA
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA 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]
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE COMELEC
Contents of Comment: 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
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]
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
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]
If not, then the CA may dismiss the same.
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
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] PAGE 105
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
APPEAL BY CERTIORARI TO THE SUPREME COURT [Rule 45]
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN The following decisions are unappealable: (1) In administrative cases where respondent is absolved of the charge (2) In case of conviction, where penalty imposed is public censure or reprimand, or suspension of not more than one month or a fine equivalent to one month salary [AO 7, Rule III, Sec. 7]
CERTIORARI
AS
MODE OF APPEAL [RULE 45] AND CERTIORARI AS A SPECIAL CIVIL ACTION [RULE 65] Appeal by Certiorari Rule 45
Based on questions of law which appellant desires the appellate court to resolve
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
Involves review of judgment, award or final order on merits
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 certiorariunder Rule 65 may be filed with this Court to set aside the Ombudsman’s order or resolution. [Nava v. NBI (2005)]
Must be made within the reglementary period of appeal
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE NLRC
Stays the judgment, award, or order appealed from
Rule 43, Sec. 2 states that Rule 42 shall not apply to judgments or final orders issued under the Labor Code. The law no longer provides for an appeal from decisions of the LA or from the NLRC. Mode of review from said decisions is the special civil action for Certiorari under Rule 65 in the CA.
Petitioner and respondent are original parties to the action
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. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian v. Desierto (1998)]
Prior filing of MR not required
Appellate court is in the exercise of appellate jurisdiction and power of review
PAGE 106
A
Certiorari as an Action Rule 65 Petition raises the issue as to 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 quasi-judicial agency as prevailing parties A filing of a MR is a condition precedent, subject to certain exceptions Higher court exercises original jurisdiction under its power of control and supervision over proceedings of lower courts
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
A party desiring to appeal by certiorari from a judgment, final order or resolution of the CA, the Sandiganbayan, the CTA, the RTC or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.
PROPRIETY OF RULE 45 AS A MODE OF APPEAL
The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. [Rule 45, Sec. 1, as amended by A.M. 07-7-12-SC]
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.)
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
Questions of Law
Questions of Fact Doubt or difference as to the truth or Doubt or controversy falsehood of facts, or as to what the law is as to probative value on certain facts 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 the credibility of Can involve questions witnesses, existence, of interpretation of and relevancy of law with respect to specific surrounding certain set of facts circumstances and relation to each other and the whole probabilities of the situation
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 course, parties may submit memoranda
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]
SC may affirm, reverse, or modify judgment of lower court
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]
PAGE 107
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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)].
APPEAL FROM RTC TO SC UNDER RULE 45
To appeal under Rule 45, RTC must render 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 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].
APPEAL FROM CA IS ALWAYS BY RULE 45 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.
PERIOD OF APPEAL [Rule 45, Sec. 2]
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.
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 The Neypes doctrine is also applicable in Rule 45.
CONCLUSIVENESS OF FINDINGS OF FACT
Extension of Period: 30 days upon (1) Motion duly filed and served; and (2) Payment of docket and lawful fees and deposit for costs (3) And for justifiable reasons
General Rule: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC Exceptions: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: (1) Conclusion is a finding grounded entirely on speculations, surmises or conjectures [Joaquin v. Navarro (1953)].
PAGE 108
UP LAW BOC
CIVIL PROCEDURE
FORM OF PETITION
REVIEW IS DISCRETIONARY
(1) The petition must be VERIFIED (2) 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 (3) Payment of docket and other lawful fees and deposit of P500 for costs is made with the SC Clerk at the time of filing (4) Proof of service of the petition to the lower court and adverse party are attached
[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
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
GROUNDS FOR DENIAL PETITION [Rule 45, Sec. 5]
REMEDIAL LAW
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
GROUNDS FOR DISMISSAL OF APPEAL 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.
OF
Grounds for Dismissal as provided in Sec. 1,
Rule 50
(1) Failure of petitioner to comply with: (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
(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
NOTE: SC may dismiss the petition motu proprio
PAGE 109
UP LAW BOC
CIVIL PROCEDURE
(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 Other Grounds (1) By agreement of the parties (i.e. amicable settlement) (2) Where appealed case has become moot or academic (3) Where appeal is frivolous or dilatory
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
PAGE 110
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
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
RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW Discretionary; No records are elevated unless the court decrees it Filed with the appellate court
Appeal from a decision of the Appeal from a judgment or final RTC in the exercise of its original order of a MTC jurisdiction Appeals from awards, judgments, final orders or Appeal from a decision of the resolution of or authorized by RTC rendered in the exercise of any quasi-judicial agency in the Rule 41 provisions shall apply to Rule 40 if not consistent with Rule its appellate jurisdiction exercise of its quasi-judicial 40 provisions functions
Appeals to the SC from a judgment or final order or resolution of the CA, Sandiganbayan, CTA en banc, RTC (original jurisdiction) or such other courts as may be authorized by law 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,
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 Filed with the CA Appeal to the CA
RULE 43 Filed with the CA Appeal to the CA
RULE 45 Filed with the SC Appeal to the SC
Questions of fact, Questions of Questions of fact or mixed Questions of fact or mixed Questions of fact, Questions of law, or Mixed questions of fact questions of fact and law Only Questions of Law questions of fact and law law, or Mixed questions of both and law
PAGE 111
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TIME FOR FILING RULE 40
RULE 41
RULE 42
RULE 43
RULE 45
Within 15 days from: 1. Notice of award, Within 15 days from: judgment, final order, or 1. Notice of judgment, BY NOTICE OF APPEAL Within 15 days from notice of resolution OR final order, or resolution Within 15 days after notice of judgment or final order decision, or 2. Date of publication, if appealed from, or Within 15 days from notice of publication is required 2. Notice of denial of BY RECORD ON APPEAL denial of petitioner’s motion for by law for its effectivity, motion for new trial or Within 30 days from notice of judgment or final order by filing a new trial or reconsideration OR reconsideration filed in notice of appeal and a record on appeal 3. Denial of petitioner’s due time after notice of MNT or MR (only one judgment MR allowed)
PAGE 112
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 37 and Rule 38 are EXCLUSIVE remedies.
RELIEF FROM JUDGMENTS, ORDERS, AND OTHER PROCEEDINGS
A party who has filed a timely motion for new trial and/or reconsideration cannot file a petition for relief after his motion has been denied.
[Rule 38]
CONCEPT
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]
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 A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment [Alaban v. Cam]
WHEN PROPER
Rule 38 can be availed of once the judgment has become final and executory. The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where there is no other available or adequate remedy. 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)]
NOTE: This is not applicable to the SC since it is not a trier of facts.
RULE 37 v. RULE 38 Rule 37 Rule 38 Available BEFORE Available AFTER judgment becomes judgment has become final and executory final and executory Applies to judgments, Applies to judgments final orders and other or final orders only proceedings Grounds: (1) FAME and (2) Newly Ground: FAME discovered evidence Filed within 60 days from knowledge of Filed within the time judgment and within to appeal 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 is remedy is appeal appropriate civil from judgment action under Rule 65 Legal remedy Equitable remedy Motion need not be Petition must be verified verified
Under Sec. 1, it is also available when “any other proceeding is thereafter taken against the petitioner in any court through FAME” 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 order of execution [Cayetano v. Ceguerra] or an order dismissing an appeal [Medran v. CA]
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.
PAGE 113
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(4) When judgment was entered by mistake or was obtained by fraud; or (5) Other similar cases.
GROUNDS [Rule 38, Sec. 1 and 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
ORDER TO FILE ANSWER
[Rule 38, Sec. 4] An order to answer shall issue only if petition is sufficient in form and substance.
PERIOD FOR FILING [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
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.
The two periods for the filing of a petition for relief are not extendible and never interrupted. Both periods must be complied with. [Phil. Rabbit Bus Lines Inc. v. Ariaga]
After filing of answer or expiration of the period therefor, court shall hear the petition.
PROCEEDINGS AFTER ANSWER IS FILED [Rule 38, Sec. 6]
If the court finds that the allegations are not true – Petition is dismissed.
Reckoning points: (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
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
FORM AND CONTENTS OF THE PETITION
(1) The petition for relief must be verified (2) The petition must be accompanied by an affidavit showing the FAME relied upon; and (3) The affidavit of merit accompanying the petition must also show the facts constituting the petitioner’s good and substantial cause of action or defense as the case may be
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.
The absence of an affidavit of merits is a fatal defect and warrant denial of the petition [Fernandez v. Tan Tiong Tick].
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS
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 47] Annulment of Judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed.
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; PAGE 114
UP LAW BOC
CIVIL PROCEDURE
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]
NATURE
The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. Resorted to in cases where ordinary remedies of new trial, appeal, petition for relief, or other appropriate remedies are no longer available through no fault of petitioner
GROUNDS [Rule 47, Sec. 2]
Annulment may be based only on TWO grounds: (1) Extrinsic Fraud (2) Lack of Jurisdiction
It is not a mode of appeal but an Independent Civil Action.
Although Sec. 2 provides that annulment of judgment or order may be based only on extrinsic fraud and lack of jurisdiction, jurisprudence recognizes DENIAL OF DUE PROCESS as an additional ground [Sps. Benatiro, et al. v. Heirs of Cuyos et al.] This was recognized in the 2013 case of Leticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.
WHEN PROPER [Rule 47, Sec. 1]
It is available when the petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or take other appropriate remedies assailing the questioned judgment or final order or resolution through no fault attributable to him The remedy may no longer be invoked where the party has availed himself of the remedy of new trial, appeal, petition for relief, or other appropriate remedy and lost or where he has failed to avail himself of those remedies through his fault or negligence
Extrinsic or Collateral Fraud - Refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully and fairly presenting his side of the case
WHERE FILED
Lack of Jurisdiction - Lack of jurisdiction refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim, and in either case, the judgment or final order and resolution are void.
Judgments, Final Judgments, Final Orders, or Resolutions Orders, or Resolutions of the RTC of the MTC Filed with the CA
REMEDIAL LAW
Filed with the RTC
CA has exclusive and RTC as a court of original jurisdiction general jurisdiction over said action under Sec. 19(6) BP under Sec. 9 (2) of BP 129 129 The CA may dismiss The RTC has no such the case outright; it discretion, it is has the discretion on required to consider it whether or not to as an ordinary civil entertain the petition action
NOTE: In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show an ABSOLUTE LACK of jurisdiction not merely abuse of jurisdictional discretion. As to Evidence (1) When the ground invoked is extrinsic fraud, extraneous evidence is admitted (2) However, when the ground is lack of jurisdiction, only evidence found in the records of the case can justify nullity of judgment
WHO CAN FILE
Petitioner need not be a party to the judgment sought to annulled.
PAGE 115
UP LAW BOC
CIVIL PROCEDURE
PERIOD FOR FILING [Rule 47, Sec. 3] Extrinsic Fraud 4 years from discovery of fraud
EFFECT OF JUDGMENT ANNULMENT [Rule 47, Sec. 7]
Lack of Jurisdiction Before it is barred by laches or estoppel
OF
Effect of annulment 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 (a) This may involve a different court of competent jurisdiction (b) But where the reason for such annulment was because of lack of jurisdiction over defendant, the action may be refilled in the same original court provided it has proper jurisdiction and venue
There must be a manifest showing with petition that it was filed within the 4-yr period. 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. Sibonghanoy.
FORM AND CONTENTS OF PETITION [Rule 47, Sec. 3]
(1) Verified petition, alleging therein: (a) With particularity, the facts and the law relied upon (b) Petitioner’s good and substantial cause of action or defense (2) Filed following the Efficient Use of Paper Rule (3) Certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition (4) Affidavits of witnesses or documents supporting the cause of action or defense; and (5) Certificate of non-forum shopping
Effect of annulment 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 (a) The trial court which rendered the questioned judgment shall be ordered to try the case anew 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]
PROCEEDINGS
There are 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 (2) If prima facie merit is found, petition given due course and issuance summons as in ordinary civil cases made [Sec. 6] Procedure in ordinary civil cases observed
REMEDIAL LAW
COLLATERAL ATTACK OF JUDGMENTS ON ATTACKING THE VALIDITY OF A JUDGMENT
is of is
Direct Attack v. Collateral Attack: (1) Direct attack upon a judgment is an action or proceeding to annul it, this being the main object of the proceeding (2) 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
is
NOTE: Prima facie determination is not available in annulment of judgments or final orders of MTCs before the RTC. [Rule 47, Sec. 10]
PAGE 116
UP LAW BOC
CIVIL PROCEDURE
When Collateral Attack Proper This 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
REMEDIAL LAW
A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs of Cuyos (2008))
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))
The validity of a judgment or order of the court, which has become final and executory, may be attacked in three ways: (1) Only by a direct action or proceeding to annul the same This proceeding is a direct attack against the order of judgment because it is not incidental to, but is the main object of, the proceeding A direct action 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
REMEDIES
If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be used. 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 may be resorted to.
(2) Or 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
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)] 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.
(3) Or 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
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)]
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].
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)]
A void judgment is like an outlaw which may be slain at sight wherever or whenever it 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] PAGE 117
UP LAW BOC
CIVIL PROCEDURE
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)]
REMEDIAL LAW
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 (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes 'final or, to use the established and more distinctive term, 'final and executory.
Execution, Satisfaction, and Effect of Judgments
Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. [Rule 39, Sec. 1]
DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION
It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. It is submitted that upon court’s issuance of a judgment touching upon the merits of a case, it is final for the purposes of an appeal, but NOT for execution.
The term “finality of judgment for purposes of appeal” refers to interlocutory orders which: (1) Are not decisions within the constitutional definition [Armargo v. CA (1973)] (2) are those that determine incidental matters that do not touch on the merits of the case or put an end to proceedings. The following are examples of an interlocutory order: (a) An order denying a motion to dismiss; (b) An order granting an extension of time to file a pleading, or one authorizing an amendment thereof; (c) Order granting or denying applications for postponement or inspection of documents. [Riano]
NOTE: Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected.
WHEN EXECUTION SHALL ISSUE Execution is a process provided by law for the enforcement of a final judgment. Enforcement is part of court’s jurisdiction. It is not an action but is included in the phrase “Process in an action – part of the proceedings considered as still pending.
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)]
Cases where Execution may Issue even if judgment NOT Final: (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
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, e.g., 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 a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription.
PAGE 118
UP LAW BOC
CIVIL PROCEDURE
Writ of Execution: A judicial writ issued to an officer authorizing him to execute the judgment of the court.
REMEDIAL LAW
EXECUTION AS A MATTER OF RIGHT [Rule 39, Sec. 1]
The finality of judgment has the effect of entitling prevailing party to execution as a matter of right. It is the ministerial duty of the court to do execution. [Herrera]
Dispositive Portion as Subject of Execution (1) General Rule: The dispositive portion of the decision is that part that becomes the subject of execution (2) Exceptions: (a) 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 (b) Where extensive and explicit discussion and settlement of the issue is found in the body of the decision
Execution as a matter of right, TWO INSTANCES: (1) No appeal has been perfected or period of appeal has expired (2) Appeal has been perfected and finally resolved How Done: Case If no appeal has been perfected, or the period of appeal has expired
How Execution is Carried Prevailing party applies by motion for a writ of execution which is granted by the judge since it is a matter of right Prevailing party: (1) Files a motion in the court of origin, (2) Submitting certified true copies of the judgment or final orders sought to be enforced If appeal has (3) Submitting the entry been perfected thereof, and finally (4) With notice to adverse resolved party Appellate court may also direct the court of origin to issue the writ of execution: (1) Upon motion in the same case AND (2) When the interest of justice so requires
To Whom Issued: (1) General Rule: Only real parties in interest in an action are bound by judgment rendered therein and by the writs of execution (2) Exceptions: There are certain cases where the writ may be issued against non-parties (a) One who is privy to judgment debtor can be reached by an order of execution and writ of demolition [Vda. De Medina v. Cruz] (b) Issued against one who not being originally a party to the case submits his interest to the court for consideration in the same case and invites adjudication regarding said interest [Jose v. Blue] (c) Where non-parties voluntarily signed the compromise agreement or voluntarily appeared before court [Rodriguez v. Alikpala] (d) 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] (e) 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]
General Rule: It is a matter of right on the part of the winning party when the judgment or order becomes executory. The court cannot refuse execution. 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 a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted [Rule 38, Sec. 5];
PAGE 119
UP LAW BOC
CIVIL PROCEDURE
(2) When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL; (3) When the judgment has been NOVATED BY THE PARTIES (4) When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible (5) On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. (6) When the judgment becomes DORMANT, the 5-year period under Rule 39.6 having expired without the judgment having been revived
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 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. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it.
NOTE: Execution may only issue upon motion with notice of hearing.
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.
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. Or (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]
A judgment of the CA cannot be executed pending appeal. [Heirs of Justice JBL Reyes v. CA, 2000]
DISCRETIONARY EXECUTION [Rule 39, Sec. 2]
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
REMEDIAL LAW
When Proper and How Done Execution as a Matter of Right
(1) Execution pending appeal – The duration of the court’s discretionary power to order execution pending appeal depends on: (a) Where the record on appeal is required, (i) The court loses jurisdiction only over the subject matter thereof upon approval of the record on appeal and expiration of the time to appeal of the other party
Period to appeal has already lapsed and no appeal is perfected Ministerial duty of the court Provided there are no supervening events
PAGE 120
UP LAW BOC
CIVIL PROCEDURE
(b) Where no record on appeal is required, court may issue writ of execution before perfection of appeal (c) If the court lost jurisdiction, the writ may be issued by the appellate court, as such: Case How Execution is Carried Prevailing party: If the trial court still (1) Files a motion with has jurisdiction notice to the adverse over the case and is party still in possession (2) Motion is filed with the of either the TRIAL court original record or (3) Good reasons must be record on appeal shown The prevailing party: (1) Files a motion with notice to adverse party If the trial court has (2) Motion is filed with the lost jurisdiction APPELLATE COURT (3) Good reasons must be shown
REMEDIAL LAW
The Supersedeas Bond 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. (1) It is 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 (2) 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. Exception: However, THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of 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]
(2) Execution of several, separate, or partial judgments may also be executed under the same terms and conditions as execution pending appeal.
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
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
Remedy against Execution pending Appeal – The remedy is certiorari by Rule 65. The appeal could not be an adequate remedy for such premature execution. [Jaca v. Davao Lumber Co.]
HOW JUDGMENT IS EXECUTED
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]
EXECUTION BY MOTION OR BY INDEPENDENT ACTION [Rule 39, Sec. 6] Modes of Enforcement of Execution: Mode When Enforced Within 5 years from date of entry By Motion of judgment After the lapse of 5 years from By date of entry and before it is Independent barred by statute of limitations Action which is 10 years from date of entry [Art. 1144(3)] 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. PAGE 121
UP LAW BOC
CIVIL PROCEDURE
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.
Remedies Against a Writ of Execution (1) If there is a defect in the writ, file a motion to quash the writ of execution (a) Quashal is proper when: (i) A change in the situation of the parties renders execution inequitable (ii) Issued against wrong party (iii) Issued without authority (iv) Improvidently issued (v) Defective in substance (vi) Judgment already satisfied; and (vii) The controversy was never submitted to the court (viii)Where the writ varies the terms of the judgment (ix) It is sought to be enforced against property exempt from execution (x) Where there is ambiguity in the terms of the judgment
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 (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 Manner of Execution If it be against property of judgment obligor
REMEDIAL LAW
(b) If motion to quash is denied, appeal from said denial
To satisfy judgment plus interest out of his real or personal property
(2) An order granting the issuance of the writ is not appealable, except where: (a) The order varies the terms of the judgment, or (b) Where, being vague, the court renders what is believed to be a wrong interpretation
If it be against real or personal property in the hands of personal To satisfy judgment representatives, heirs, with interest out of devisees, legatees, such tenants, or trustees of judgment obligor To sell such property described
EXECUTION FOR JUDGMENTS OF MONEY
If the award is for payment of money, execution is enforced by: [Rule 39, Sec. 9] (1) Immediate payment on demand (2) Satisfaction by levy (3) Garnishment of debts and credits
If it be for sale of real or Then apply proceeds in personal property conformity with judgment To deliver possession of the same, describing it, to the party entitled thereto
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
Then to satisfy any costs, damages, rents, If it be for delivery or or profits covered by possession of real or the judgment personal property
(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
Out of the personal property of obligor In case of insufficiency, then out of real property PAGE 122
UP LAW BOC
CIVIL PROCEDURE
(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
REMEDIAL LAW
(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 Procedure: (1) The judgment obligor have the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy judgment
(b) If judgment oblige 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
(2) If judgment obligor does not exercise the option: (a) The officer shall first levy on personal properties, if any (b) If personal properties are insufficient, then on the real properties (3) Sheriff shall sell only sufficient portion of personal or real property of the judgment obligor levied upon
(2) The judgment obligor shall pay the lawful fees handed over to the sheriff. Sheriff shall turn over the said amount within the same day to the clerk that issued the writ
(4) If there is more property than is sufficient to satisfy judgment and lawful fees, then sell only so much as is sufficient
(3) If there is any excess it shall be delivered to the judgment obligor. Lawful fees shall be retained by the clerk
GARNISHMENT OF DEBTS AND CREDITS
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
SATISFACTION BY LEVY
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.
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
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)]. 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 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.
Conditions to be met 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
Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega (1973)]
PAGE 123
UP LAW BOC
CIVIL PROCEDURE
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)]
REMEDIAL LAW
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS When proper [Rule 39, Sec. 10] (1) Resorted to if the judgment directs a party to: (a) Execute a conveyance of land or personal property, or (b) Deliver deeds or other documents, or (c) Perform any other specific act in connection therewith. (2) AND the party fails to comply within the time specified
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)] 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
Procedure: (1) Court may direct the act to be done (a) At the cost of disobedient party (b) Or by some other person appointed by the court (2) In case of directing conveyance of real or personal property located in the Philippines: (a) Court may divest the title of any party and vest it in others by court order (b) This shall have the force and effect of conveyance executed in due form
(2) Garnishment to cover only such amount as will satisfy judgment and lawful fees (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
Sale of real or personal property If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgment’s instructions.
(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
Delivery or restitution of real property The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof 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 judgment obligee in possession of such property.
(7) Follow procedure under “Immediate Payment on Demand” with respect to delivery (8) Lawful fees shall be paid directly to court
PAGE 124
UP LAW BOC
CIVIL PROCEDURE
Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.
REMEDIAL LAW
Examples: (1) A judgment in mandamus to reinstate petitioner as chief clinic of the hospital [Vital-Gozon v. CA] (2) A judgment directing petitioner to vacate the land which is a judgment to deliver possession of real property and not special judgment. No contempt for refusal [Moslem v. Soriano]. (3) A judgment directing defendant to remove a fence from a certain place is a special judgment [Marquez v. Marquez]
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 upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court.
EFFECT OF LEVY ON THIRD PERSONS
Delivery of personal property In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.
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]
EXECUTION OF SPECIAL JUDGMENTS
NOTE: The power of the court in execution extends only over properties UNQUESTIONABLY belonging to judgment debtor.
When Proper [Rule 39, Sec. 11]
PROPERTIES EXEMPT FROM EXECUTION
When a judgment requires performance of any other act than those mentioned in Sec. 9 and 10.
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;
Special Judgment is one which can only be complied with by the judgment obligor because of his personal qualifications or circumstances. It requires performance of an act other than payment of money or sale or delivery of property. A special judgment may be enforced by contempt if defendant refuses to comply
(2) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
Procedure: (1) A writ of execution shall be issued. Attached to this is a certified copy of the judgment
(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;
(2) Service by the officer upon: (a) The party against whom the same is rendered, or (b) Any other person required thereby, or by law, to obey the same
(4) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(3) Failure of such party to obey the judgment is punishable by contempt
PAGE 125
UP LAW BOC
CIVIL PROCEDURE
(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 one hundred thousand pesos;
REMEDIAL LAW
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.
(6) Provisions for individual or family use sufficient for four months;
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]
(7) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;
RETURN OF WRIT OF EXECUTION
(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;
Procedure for Return of Writ of Execution if Judgment is Satisfied within 30 days [Rule 39, Sec. 14] (1) Writ of execution shall be returnable to the court issuing it immediately after judgment has been satisfied in part or in full
(9) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family;
(2) The return shall set forth the whole of the proceedings taken
(10) Lettered gravestones;
(3) Return is filed with the court
(11) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;
(4) It shall also be reproduced and copies thereof furnished to parties Procedure if Judgment is NOT satisfied within 30 days: (1) Officer shall report to the court stating the reason for non-satisfaction
(12) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;
(2) The writ shall continue in effect during the period within which judgment may be enforced by motion
(13) Properties specially exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits from private retirement systems of companies and establishments with limitations [RA 4917]; laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [Art. 1708, Civil Code]; benefit payments from SSS [Section 16, RA 1161 as amended])
(3) Officer shall make a report to the court every 30 days on the proceedings taken thereon, until either: (a) Judgment is satisfied in full, or (b) Its effectivity expires (4) The periodic reports shall: (a) Set forth the whole of the proceedings taken, and (b) Be filed with the court (c) Be reproduced and copies thereof furnished to parties
PAGE 126
UP LAW BOC
CIVIL PROCEDURE
NOTE: The lifetime of a writ of execution is without limit for as long as the judgment has not been satisfied.
REMEDIAL LAW
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: (a) Claimant may vindicate his claim in a separate action (b) Intervention is no longer allowed since judgment has already been rendered
But it is returnable to the court issuing it immediately after judgment has been satisfied in full or in part. The writ shall continue in effect during period within which the judgment may be enforced by motion which is 5 years from date of entry. After the first 5 years, judgment becomes dormant and subject to revival action.
(2) If the claim is filed under Sec. 14, Rule 57 (Attachment) or under Sec. 7, Rule 60 (Replevin) (a) Claimant may vindicate his claim by intervention as he has a legal interest in the matter of litigation (b) Intervention is allowed as these actions are still pending in court
PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON
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.
CONCEPTS Rule 39, Sec. 16 and other provisions which provide for a mode of recovering property allegedly to have been wrongfully taken by sheriff pursuant to a writ of execution or other process, refers to a STRANGER to an action.
SUMMARY HEARING BEFORE COURT AUTHORIZING EXECUTION
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
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)]
(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
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
(3) Note however that the court determination is limited (a) Limited only to a determination of whether the sheriff has acted rightly or wrongly in performance of his duties (b) The court does not and cannot pass upon the question of title. It can treat of the matter only insofar as may be necessary to decide if sheriff acted correctly or not
PAGE 127
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TERCERIA
In Spouses Sy v. Hon. Discaya (1990), SC declared that for a third-party claim or a terceria to prosper, the claimant must first sufficiently establish his right on the property
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.
REINVINDICATORY ACTION
Independent of the foregoing, a third-party claimant may also avail of the remedy of Terceria. Terceria is provided in Sec. 16, Rule 39.
The aforesaid remedies are nevertheless without prejudice to any proper action that third-party claimant may file to vindicate his claim over the property (ownership claim). 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) Officer shall not be bound to keep property (a) Unless judgment creditor, or his agent, on demand of officer, posts indemnity bond not lesser nor greater than value of property
(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) Where a third-party claim has been filed in due form: (a) Prevailing party can compel the sheriff to proceed by filing of a bond to answer for damages as a consequence of the execution (b) 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
(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
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 (a) Action against indemnity bond must be filed within 120 days from date of filing of the bond (b) After lapse of 120 days, no claim for damages for taking or keeping of property may be enforced against the bond
WHO MAY REDEEM REAL PROPERTY SO SOLD [Rule 39, Sec. 27] Who may redeem: (1) Judgment obligor, or his successor in interest, in the whole or any part of the property (2) Remptioner who is a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, subsequent to the lien which the property was sold
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. [Magdalena T. Villasi v. Filomena Garcia, substituted by his heirs, namely, Ermelinda H. Garcia, et al, 2014]
Successors-in-interest They include, among others, one to whom the debtor has conveyed HIS INTEREST in the property for purposes of redemption
PAGE 128
UP LAW BOC
CIVIL PROCEDURE
The Redemptioner He is a creditor with a lien SUBSEQUENT to the judgment which was the basis of the execution sale.
REMEDIAL LAW
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
Unlike the judgment debtor, a redemptioner must prove his right to redeem by producing the documents required in Sec. 30, to wit: (1) Copy of the judgment or final order under which he claims the right to redeem certified by the clerk wherein judgment or final order was entered OR (2) If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the Register of Deeds; OR (3) An original or certified copy of any assignment necessary to establish his claim; OR (4) An affidavit executed by him or his agent showing the amount then actually due on the lien [Sec. 30]
(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
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
WHEN CAN REDEMPTION BE MADE
NOTE: The redemption price for subsequent redemption shall be the same, so the price becomes higher and higher.
[Rule 39, Sec. 28] Who
When Within 1 year from date of By the JUDGMENT registration of certificate DEBTOR of sale Within 1 year from date of By FIRST registration of certificate REDEMPTIONER of sale Within 60 days from last BY ALL redemption SUBSEQUENT PROVIDED that judgment REDEMPTIONERS debtor has not exercised his right of redemption
EFFECT OF REDEMPTION BY THE JUDGMENT OBLIGOR [Rule 39, Sec. 29] If Judgment debtor redeems the property: (1) No further redemption is allowed (2) He is restored to his estate 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.
In all cases, judgment debtor shall have the entire 1 year period from date of registration of sale to redeem the property. If judgment debtor redeems, no further redemption is allowed [Sec. 29].
Payments mentioned in Sec. 28 and 29 may be made to the: (1) Purchaser, or (2) Redemptioner, or (3) For him to the officer who made the sale
NOTE: There is no extension or interruption of redemption period.
PAGE 129
UP LAW BOC
CIVIL PROCEDURE
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
RIGHTS
PENDING
[Rule 39, Sec. 31 and 32]
REMEDIAL LAW
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
REDEMPTION
Right of Judgment Creditor Pending Redemption (1) Apply for injunction to restrain the commission of waste on the property 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 PRICE IF SALE IS 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; or (b) Judgment has been reversed or set aside; or (c) The property sold was exempt form execution; or (d) A third person has vindicated his claim to the property
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
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
Entitlement to a CONVEYANCE and POSSESSION: (1) To the PURCHASER If there is no redemption made within 1 year from date of registration of the certificate of sale (2) To the 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
Effect of revived judgment – it has the same force and effect as an original judgment would have as of the date of revival and no more
PAGE 130
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
amount of his debt or so much thereof as may be necessary to satisfy the judgment
REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION OR IF JUDGMENT IS NOT FULLY SATISFIED [Rule 39, Sec. 36 – 43]
(4) SEC. 38 – A party or other person may be compelled to attend before the court or commissioner to testify as provided in Sec. 36 and 37 (a) This must be done by order of the court or by subpoena (b) Failure to obey: Contempt (c) All examinations and answers must be under oath
(1) SEC. 36 – If execution is returned unsatisfied, he may cause examination of the judgment debtor as to his property and income (a) When: At any time after return is made (b) The court issues an order requiring the judgment debtor to appear and be examined (c) Limitations on examination: (i) Judgment debtor cannot be made to appear before a judge or commissioner outside the province where debtor resides (ii) He may no longer be examined after lapse of 5 years within which a judgment may be enforced by motion for execution [Umali v. Coquia]
(5) SEC. 40 – Order for application of property and income to satisfaction of judgment (a) Court may order any property of judgment debtor, or any money due him, or in the hands of another to be applied to the satisfaction of judgment (b) If the court finds the earning of the judgment debtor for his personal services are MORE than sufficient for his family’s needs, it may order payment in FIXED MONTHLY INSTALLMENTS (c) Failure to do so: Punish for contempt
(2) SEC. 37 – He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (a) Requisites: (i) The writ must be returned unsatisfied; and (ii) Proof that person, corporation, or other legal entity has property of such judgment debtor or is indebted to him (b) Where? Before a judge or commissioner appointed by him at a time and place where such debtor resides or is found (c) Effect: Service of order shall bind all credits due to judgment debtor and all money and property (d) This rule is not applicable if there is no issue concerning the indebtedness of the person
(6) SEC. 41 – Appointment of a Receiver (a) Court may appoint a receiver for the property of judgment debtor not exempt from execution (b) Court may also forbid disposition or interference with the property (7) SEC. 42 – Sale of Ascertainable Interest of Judgment Obligor in Real Estate by Receiver (a) Requisites: (i) The court finds that the judgment debtor has an ascertainable interest in real property (ii) Such interest can be ascertained without controversy (b) If the requisites are met, the court can order the sale of such interest. Procedure is the same as in sale of real estate upon execution
(3) SEC. 37 – If after examination, court finds property of the judgment debtor, either in his own hands or that of any a person, court may order the property applied to the satisfaction of judgment (a) SEC. 39 - Note that the person indebted to judgment obligor may pay to the sheriff holding the writ the PAGE 131
UP LAW BOC
CIVIL PROCEDURE
(8) SEC. 43 – Institution of an action to recover property (a) If person alleged to have property of judgment debtor or person indebted to him, claims an adverse interest in the property or denies his debt (b) Court may authorize judgment creditor to bring an action to recover the property, forbid its transfer (c) Action must be instituted within 120 days from notice of order (d) Failure is contempt (e) Such order may be modified or vacated at any time by the court
BAR BY FORMER JUDGMENT
Res judicata is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or causes of action. In Rem (Paragrah A) Decision is CONCLUSIVE upon title the thing, will or administration of condition, status or relationship of the person
EFFECT OF JUDGMENT OR FINAL ORDERS
Rule 39, Sec. 47 refers to judgments which are considered as conclusive and may be rebutted directly by means of relief from judgment or annulment of judgment or indirectly by offering them in evidence under the parole evidence rule.
e.g. land registration
DUAL ASPECT OF RES JUDICATA
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
(1) Bar by Former Judgment - Direct Estoppel by Judgment; covers paragraph (a) and (b) (2) Conclusiveness of Judgment –Estoppel by Verdict, Estoppel by Record, Collateral Estoppel by Judgment or Preclusion of Issues or Rule of Auter Action Pendant; it covers paragraph (c)
There is identity of parties, subject matter, and causes of action The first judgment constitutes as an absolute bar to all matters directly adjudged and those that might have been adjudged Preclusion of claims
In Personam (Paragraph B) The judgment or final order is CONCLUSIVE as between parties and their successors in interest, litigating for the same thing and under the same title an in the same capacity e.g. accion reinvindicatoria
Bar by prior judgment is a preclusion of claims - The first judgment is a bar to the prosecution of a second action upon the same claim, demand, or cause of action
Immutability of Judgments - Once a judgment attains finality it thereby becomes immutable and unalterable
Bar by Former Judgment
REMEDIAL LAW
Conclusiveness of Judgment There is only identity of parties and subject matter Cause of action are different The first judgment is conclusiveness only as to matters directly adjudged and actually litigated in the first action. The second action can be prosecuted Preclusion of issues only
General Rule: For res judicata to apply, trial must be made on the merits of the case. 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 otherwise provided by court. [Development Bank v. CA]
PAGE 132
UP LAW BOC
CIVIL PROCEDURE
Res Judicata in Judgments in Rem Judgments or final order Against a specific thing
REMEDIAL LAW
RES JUDICATA v. LAW OF THE CASE v. STARE DECISIS
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
Conclusive as to Title of the thing
The will or administration. However, the probate Probate of a will or of a will or granting of administration of the letters of estate of a deceased administration shall person only be prima facie evidence of the death of the testator or intestate; in respect to the personal, political, or legal condition or Condition, status or status of a particular relationship of the person or his person, relationship to another
Doctrine of the 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: Res Judicata The ruling in one case is carried over to another case between the same parties
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.
“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 as a precedent in subsequent litigation between other parties
CONCLUSIVENESS OF JUDGMENT Preclusion of issues (auter action pendant) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Issue Preclusion – The first judgment precludes the re-litigation of a particular fact or issue in another action between the same parties on a different cause of action. Requisite: Identity of ISSUES
PAGE 133
Stare Decisis
Once a point of law has been established by the court, that point of law 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
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS
REMEDIAL LAW
EFFECT OF FOREIGN JUDGMENTS [Rule 39, Sec. 48]
Nature Effect In judgments against Judgment is a specific thing (in CONCLUSIVE upon the rem) title to the thing Judgment is PRESUMPTIVE In judgments against evidence of a right as a person (in between parties and personam) their successors-ininterest by a subsequent title
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)]
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 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.
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.
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)]
This policy of preclusion rests on principles of comity, utility and convenience of nations. As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation 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.
PAGE 134
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRELIMINARY ATTACHMENT
Provisional Remedies
DEFINITION
NATURE OF PROVISIONAL REMEDIES
A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case [Davao Light v CA (1991)]
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.
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. [Quasha v. Juan (1982)]
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.
GROUNDS FOR ISSUANCE [Rule 57, Sec. 1] There are only specific situations where preliminary attachment may issue. The grounds are EXCLUSIVE:
The Provisional Remedies under the Rules of Court (1) Preliminary Attachment (Rule 57) (2) Preliminary Injunction (Rule 58) (3) Receivership (Rule 59) (4) Replevin (Rule 60) (5) Support Pendente Lite (Rule 61)
(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 about to depart from the Philippines with intent to defraud his creditors;
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
(2) Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: (a) A public officer, an officer of a corporation, an attorney, factor, broker, agent, or clerk, in the course of his employment as such, (b) OR by any other person in a fiduciary capacity, or for a willful violation of duty;
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 with it and is within its jurisdiction [Sec. 33, (1), BP 129]
PAGE 135
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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;
(3) Applicant must show by affidavit that there is no sufficient security for the claim sought to be enforced and that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims (4) Applicant must post a bond executed to adverse party
NOTE: rule makes no distinction between real and personal property [Riano]
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)]
(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; NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]
ISSUANCE AND CONTENTS ORDER OF ATTACHMENT
(5) Action against a party who has removed or disposed of his property, or is about to do so, AND with intent to defraud his creditors; or
OF
[Rule 57, Sec. 2]
When may one apply: A preliminary attachment may be applied for (1) At the commencement of the action or (2) At any time before the entry of judgment.
(6) Action against a party who does not reside and is not found in the Philippines, OR on whom summons may be served by publication.
Who may apply: It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, crossclaim, or a third party complaint)
Note: the rule also refers to persons on whom summons may be served by publication and against whose property, preliminary attachment may be availed of such as: (1) Residents defendants whose identity or whose whereabouts are unknown [Rule 14, Sec. 14] (2) Resident defendants who are temporarily out of the country [Rule 14, Sec. 16]
Methods to Procure Preliminary Attachment: (1) Writ may be prayed for in the complaint itself providing the allegations warranting its issuance (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 of a Preliminary Attachment: (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
REQUISITES FOR PRELIMINARY ATTACHMENT TO ISSUE:
(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
NOTE: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained
PAGE 136
UP LAW BOC
CIVIL PROCEDURE
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
REMEDIAL LAW
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 (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
Issuance of the Order of Attachment (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
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].
Contents of the Order of Attachment: (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
THE RULE ON PROR OR CONTEMPORANEOUS SERVICE OF SUMMONS General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. BUT a writ may not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano]
(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
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.
AFFIDAVIT AND BOND [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 Contents of the Affidavit: The affidavit must establish: (1) A sufficient cause of action exists (2) Cause is one of those mentioned in Sec. 1 (3) No other sufficient security for the claim sought to be enforced by action (4) Amount due to applicant or possession of which is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims
MANNER OF ATTACHING PROPERTY [Rule 57, Sec. 5] 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
PAGE 137
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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
ATTACHMENT OF REAL AND PERSONAL 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 (ii) And 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 of such shall be included in the registration
Property in custodia legis 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] A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano]
(2) Personal property capable of manual delivery (a) Issue a corresponding receipt therefor (b) Then sheriff takes it and safely keeps it in his custody
PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON
(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 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] (a) Note that a third-party claim may be filed with the sheriff while has possession of the properties levied upon, this being the only time fixed for the purpose (b) 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 (c) Substantial identical procedure as in terceria in Rule 39, Sec. 16
(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
(2) File independent property; or
action
to
recover
(3) File motion for intervention (a) This is available only before judgment is rendered
(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: PAGE 138
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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
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
SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED [Rule 57,
Grounds for Discharge of Preliminary Attachment: (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
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
PRELIMINARY INJUNCTION
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
DEFINITIONS AND DIFFERENCES
Injunction - a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act Preliminary Injunction - an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to REFRAIN (prohibitory) from or to PERFORM (mandatory) particular acts during the pendency of an action. It is only a temporary remedy.
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]
Injunction Main action
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
seeks a judgment embodying a final injunction
Preliminary injunction Ancillary; exists only as part or incident of an independent action or proceeding sole object of which is to preserve the status quo until the merits can be heard
Based on all evidence based solely on initial gathered by court to and incomplete evidence determine main action PAGE 139
UP LAW BOC
CIVIL PROCEDURE
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)]
Requisites: (1) There must be a verified application (2) The applicant must establish that: (a) He has a right to relief or a right to be protected and (b) The act against which the injunction is sought violates such right (c) There is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to him (3) A bond must be posted unless otherwise exempted by the court (4) The threatened injury must be incapable of pecuniary estimation (5) Prior notice and hearing for party/person sought to enjoined (except in 72-hour TROs)
The injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them. TRO v. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise
Injunction Cannot be granted without notice and hearing
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)] Same requirements for preliminary injunction.
application
REMEDIAL LAW
KINDS OF INJUNCTION Kinds of Injunction: (1) Preliminary Preventive Injunction – Prohibits the performance of a particular act or acts
as
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]
(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
Status Quo Order v. Injunction 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 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.
Preliminary Prohibitory Preliminary Injunction Mandatory Injunction Purpose is to prevent Purpose is to require a person from the a person to perform a performance of a particular act particular act 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
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. Status Quo Ante Order Directs the maintenance of the condition prevailing before the promulgation of the assailed decision. It has the nature of a TRO. [Dojillo v. COMELEC, 2006]
PAGE 140
UP LAW BOC
CIVIL PROCEDURE
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)]
REMEDIAL LAW
GROUNDS FOR THE ISSUANCE OF PRELIMINARY INJUNCTION [Rule 58, Sec. 3]
Preliminary injunction may be granted when it is established that: (1) Applicant is entitled to the relief demanded, or (2) Commission, continuance, or nonperformance of the act complained of would work injustice to applicant, or (3) 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
GROUNDS FOR OBJECTION TO, OR FOR MOTION OF DISSOLUTION OF, INJUNCTION OR RESTRAINING ORDR [Rule 58, Sec. 6] Grounds for objection or dissolution (1) Upon showing of its insufficiency
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)]
(2) Other grounds upon affidavits of the party or person enjoined. This may be opposed by the applicant 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 (a) PROVIDED that he files a bond (i) Amount to be fixed by the court (ii) Conditioned that he will pay all damages which the applicant may suffer by denial or dissolution of the injunction or TRO
WHEN WRIT MAY BE ISSUED
When: It may be issued at ANY stage PRIOR to the judgment or final order Who: 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]
If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
PAGE 141
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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
TEMPORARY RESTRAINING ORDER (TRO)
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 (a) 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 (a) There must be prior and contemporaneous service of summons (exceptions also apply)
Within the 72-hr period (i) 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 (ii) In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hours Effectivity of TRO (1) Effectivity is not extendible. No court shall have authority to extend or renew the same on the ground for which it was issued (2) If issued by the CA – effective for 60 days from service (3) If issued by SC – effective until further orders
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
TRO issued by executive judge (multi-sala) or TRO issued by ordinary judge (singleordinary judge sala) Matter is of extreme urgency and that grave If it appears that injustice and irreparable great or irreparable injury will arise unless injury would result immediately issued A summary hearing May be issued ex parte must be done before issuance Good for 20 days Good for 72 hours including first 72 hours Issued before raffling Issued after 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.
Within the 20 day period: (i) The applicant must show cause why injunction should not be granted (ii) The court will determine WON the preliminary injunction shall be granted. If granted, the court will issue the corresponding order (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
PAGE 142
UP LAW BOC
CIVIL PROCEDURE
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE PROJECTS
REMEDIAL LAW
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT
When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines.
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 (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.
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]
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. 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.
WHEN FINAL INJUNCTION GRANTED
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]
Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4]
PAGE 143
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
RECEIVERSHIP NATURE
(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 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;
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. 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 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.
(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.
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].
Specific cases where receiver was appointed (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)]
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]
CASES WHEN RECEIVER MAY BE APPOINTED [Rule 59, Sec. 1]
(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; (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 PAGE 144
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
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]
REQUISITES; REQUIREMENTS BEFORE ISSUANCE OF AN ORDER Procedure: (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. When the receiver is appointed, the receiver shall file a bond then take his oath. (6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.
Liability for refusal or neglect to deliver property to receiver: (1) Contempt; and (2) 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]
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]
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
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]
THE RECEIVER Who May Be Appointed As Receiver 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] A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. [Arigo v. Kayanan, 1983]
TWO KINDS OF BOND The Applicant’s Bond (1) Applicant must file a bond executed to the party against whom the application is presented (a) Amount to be fixed by the court (b) CONDITION: To the effect that applicant will pay such party all damages he may sustain by reason of the appointment IN CASE the PAGE 145
UP LAW BOC
CIVIL PROCEDURE
applicant shall have procured such without sufficient cause (2) The court may require additional bond after appointment in the exercise of its discretion as further security for such damages [Rule 59, Sec. 2]
REMEDIAL LAW
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
The Receiver’s Bond (1) As a precondition before entering into his duties, receiver must file a bond (2) The bond is executed to such person and in such sum as the court may direct (3) CONDITION: To the effect that he will faithfully discharge his duties and obey the orders of the court [Rule 59, Sec. 4]
REPLEVIN NATURE
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
Damages Resulting From Appointment
Damages Arising After Appointment Damages which arise Damages resulting due to receiver’s from appointment negligence or mismanagement The right rests on The right is statutory general principles of law The damages may be caused before the Liability rests on the receiver qualifies or mismanagement or takes possession of negligence of receiver the property The applicant’s bond The receiver’s bond is is responsible responsible
Writ of Preliminay Attachment The purpose is to have the property put in the The purpose is to custody of the court to recover personal secure the satisfaction property capable of of the judgment that manual delivery may be rendered in from the defendant favor of the plaintiff at some future time The property either belongs to the The property does not plaintiff or one over belong to the plaintiff which the plaintiff but to the defendant has a right of possession May be sought only Available even if when the principal recovery of property is action is for the only incidental to the recovery of personal relief sought property Can be sought only when defendant is in May be resorted to actual or even if property is in constructive possession of a third possession of the person property Cannot be availed of Can be availed of even when property is in if property is in custodia legis custodia legis Available from Available before commencement but defendant answers before entry of judgment Writ of Replevin
TERMINATION OF RECEIVERSHIP
Ground: The necessity for a receiver no longer exists Procedure: (1) The court shall determine that the necessity for a receiver no longer exists (a) 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
PAGE 146
UP LAW BOC
Writ of Replevin Bond is double the value of the property Extends only to personal property capable of manual delivery Available to recover personal property even if the same is not being concealed, removed, or disposed of
CIVIL PROCEDURE
REMEDIAL LAW
REQUISITES
Writ of Preliminay Attachment Bond is fixed by the court Extends to all kinds of property whether real, personal, or incorporeal Attachment to recover possession of personal property unjustly detained presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant
(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
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 (2) Application must contain an affidavit (3) Applicant must file a bond (4) Approval of the bond by the court (5) 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: There can be no replevin and preliminary attachment in the same case because the purposes are different. (1) In Rule 57, it is for security (2) In Rule 60, it is for recovery of possession
WHEN MAY WRIT BE ISSUED
NOTE: The writ of replevin may be served anywhere in the Philippines.
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
AFFIDAVIT AND BOND; REDELIVERY BOND Contents of the Affidavit (1) That the applicant is: (a) The owner of the property claimed – describe with particularity (b) Or is entitled to possession (2) Property is wrongfully detained by adverse party (a) Allege the cause of detention (b) According to his best knowledge, information, belief (3) That the property has not been : (a) Distrained, or (b) Taken for a tax assessment, or (c) Taken as a fine pursuant to law, or (d) Seized under a writ of execution or preliminary attachment, or under custodia legis; if so taken, that said property is exempt (4) The affidavit must also state the actual value of the property subject of replevin and not just its probable value. This value will be the basis of the bond.
NOTE: There can be no replevin before the appellate courts The provisional remedy of replevin is available where the PRINCIPAL PURPOSE of the action is to recover the possession of PERSONAL property. Who May Avail of the Remedy? (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 It is available to any other party asserting affirmative allegations praying for the recovery of personal property unjustly detained.
PAGE 147
UP LAW BOC
CIVIL PROCEDURE
The Applicant’s Bond (1) Executed to the adverse party (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
REMEDIAL LAW
(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. However, the rule requires that upon such order, the sheriff must serve a copy on the adverse party together with the required documents.
Return of Property [Sec. 5] (1) If the adverse party objects to the sufficiency of the bond, he cannot immediately require the return of the property even by counterbond.
A sheriff’s prerogative does not give him the liberty to determine who among the parties is entitled to possession.
(2) If the adverse party DOES NOT object to the sufficiency of the bond, he may require the return of the property (a) When: At any time before delivery to applicant (b) How: By filing a redelivery bond
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.
The Redelivery Bond (1) This is executed to the applicant and filed where the action is pending (2) Amount is double the value of the property as stated in the affidavit of the applicant (3) Conditions of the Bond: (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
DISPOSITION OF PROPERTY BY SHERIFF [Rule 60, Sec. 6]
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 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
SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT 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
NOTE: These remedies are alternative.
(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 PAGE 148
UP LAW BOC
CIVIL PROCEDURE
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, 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 in favor of the third person (the bond should not be less than the value of stated under Sec. 60, Sec. 2; the court shall determine the value in case of disagreement). 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. 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: (1) Sec. 14, Rule 57 – affidavit is served upon the sheriff while he has possession of the attached property (2) Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has possession (in connection with Sec. 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.
PAGE 149
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES Preliminary Attachment
Purpose
Subject Matter When applied/ Granted
How applied for
Requirement Of a hearing
Preliminary Injunction
Receivership
Replevin
To have the property of adverse party attached as security for To require a party or a court, agency, satisfaction of judgment that may be or a person to reframe from doing a recovered in cases falling under Sec. particular act/s To place the property subject of an 1, Rule 57 auction or proceeding under the control of a third party for its To recover possession of personal preservation and administration property To enable the court to acquire pendente lite or as an aid to jurisdiction over the action by the execution actual or constructive seizure of the Or to require the performance of property in those instances where particular act/s personal service of summons on creditor cannot be effected Personal or real property
Particular act/s
Personal or real property
At any time prior to satisfaction of At the commencement of action judgment At any stage prior to final judgment OR `At any time prior to entry of It may be availed of even after or final order judgment judgment becomes final under Sec. 41, Rule 39 File verified application and File verified application and applicant’s bond applicant’s bond If application is included in initiatory File affidavits and applicant’s bond pleading, adverse party should be Application may also be included in served with summons together with initiatory pleading in actions for a copy of initiatory pleading and foreclosure of mortgage applicant’s bond Required EXCEPT: Not required Great or irreparable injury would Required May be issued ex parte result or Extreme urgency and applicant will suffer grave injustice
PAGE 150
Personal property manual delivery
capable
of
At the commencement of the action BUT before the filing of answer
File affidavits and applicant’s bond
Not Required May be issued ex parte
UP LAW BOC
CIVIL PROCEDURE
Preliminary Attachment
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 for the claim exists Requisites for 4. Amount due to applicant or granting application value of property he is entitled to recover is equal to the sum which the order of attachment is granted
Preliminary Injunction and irreparable injury [Sec. 5, Rule 58] 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
PAGE 151
REMEDIAL LAW
Receivership
Replevin
Court where action is pending The CA or SC even if action is pending in the lower court Only the court were action is Appellate court may allow pending application for receivership to be decided by the court of origin 1. Applicant has interest in 1. Applicant is owner of the property or fund, subject matter property claimed or is entitled of action to possession 2. Property or fund is in danger of 2. Property is wrongfully detained being lost, or removed, or by the adverse party material injured 3. Property is not distrained or 3. Appointment is the most taken for tax assessment or fine convenient and feasible means pursuant to law, or seized (if of preserving, administering, seized, that the property is disposing of property in litigation exempt)
UP LAW BOC
CIVIL PROCEDURE
Special Civil Actions
JURISDICTION AND VENUE 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
IN GENERAL NATURE
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]
ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL ACTIONS
(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 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. Ordinary Civil Action Governed by ordinary rules Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law Must be based on a cause of action which means that the defendant has violated plaintiff’s rights Venue is determined by either the residences of the parties when action is personal or by the location of the property when the action is real
May be filed initially in either the MTC or RTC
They are denominated as “complaints” when filed
REMEDIAL LAW
Special Civil Action Also governed by ordinary rules but subject to specific rules prescribed
of
The venue of special civil actions is governed by the general rules on venue EXCEPT as otherwise indicated in the particular rule for said special action.
Special features not found in ordinary civil actions
Actions for certiorari, prohibition and mandamus should be commenced in the proper RTC, but the same may, in proper cases, be commenced in the SC or the CA and a specific rule of venue is provided for quo warranto proceedings
The concept of cause of action in an ordinary action does not always fit in a special civil action (e.g. interpleader) This dichotomy does not always apply in a special civil action (e.g. the venue in a petition for quo-warranto is where the SC or CA sits) There are special civil actions which can be filed with the MTC (e.g. forcible entry and unlawful detainer) There are also those which cannot be commenced in the MTC (e.g. certiorari, prohibition, mandamus) Some special civil actions are initiated by petitions
In the absence of special reasons, the SC will decline 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. Special civil actions that can be filed in or are within the jurisdiction of inferior courts: (1) Interpleader -- Provided that amount involved is within its jurisdiction (2) Ejectment suits (3) Contempt
PAGE 152
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
INTERPLEADER
WHEN TO FILE
NATURE
Who Files the Complaint - A complaint for interpleader is filed by the person against whom the conflicting claims are made
Definition - 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)]
When to File - 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 or undue delay. Jurisdiction and Venue – General rules on jurisdiction and venue apply as in ordinary civil actions.
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.
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
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]
(3) Summons shall then be served upon the conflicting claimants with a copy of the complaint and the order to interplead [Sec. 3].
REQUISITES FOR INTERPLEADER
NOTE: Interpleader applies regardless of nature of subject matter.
(4) Each claimant has a 15-day period to file: [Sec. 4] (a) An answer (b) A motion to dismiss. If filed, period to answer is filed (i) Grounds: (1) Same as in Rule 16 (2) Impropriety of interpleader action (ii) If motion is denied, movant may file his answer within the remaining period but it shall not be less than 5 days in any event from notice of denial
Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].
(5) From service of Answer, the claimants may file their Reply serving copies to all parties. Parties may file counterclaims, cross-claims, third-party complaints, responsive pleadings
(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 or more 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
EFFECT OF FAILURE TO ANSWER: Default. (a) The claimant may be declared, on motion, in default
PAGE 153
UP LAW BOC
CIVIL PROCEDURE
(b) Unlike ordinary default, default in interpleader allows the court to render judgment barring him from any claim in respect to the subject matter
REMEDIAL LAW
(2) Any person whose rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental regulation (a) He must file before violation
(6) Pre-trial is conducted.
PARTIES
NATURE
(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]
Note: The enumeration of the subject matter is EXCLUSIVE
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]
(7) After all pleadings have been fled, the court shall then determine the respective rights and adjudicate their several claims [Sec. 6]
DECLARATORY RELIEFS AND SIMILAR REMEDIES In Declaratory Relief, the subject matter is a deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance;
Issue is the validity or construction of the subject matter
WHERE TO FILE
It is filed In the appropriate RTC (incapable of pecuniary estimation)
Relief: declaration of the petitioner’s rights and duties
Original jurisdiction of a petition declaratory relief is with the RTC.
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.
for
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. (Enumeration is exclusive)
Characteristics (1) The concept of a cause of action is not applicable to declaratory relief since this SCA presupposes that there has been no breach or violation of the (2) Instruments involved (3) Unlike other judgments, judgment in an action for declaratory relief does not essentially entail any execution process
(2) Actual justiciable controversy or “ripening seeds” of one between person whose interests are adverse (3) No breach of documents in question
[Rule 63, Sec. 1]
(4) Doubtful as to the terms and validity of the document and require judicial construction
(1) Any person interested under a deed, will, contract or other written instrument (a) He must file before breach
(5) Issue is ripe for judicial determination, as where all administrative remedies have been exhausted
WHO MAY FILE THE ACTION
PAGE 154
UP LAW BOC
CIVIL PROCEDURE
(6) Adequate relief is not available through other means or other forms of action or proceeding
However we must make a distinction: (1) In those cases similar to declaratory relief, the court is BOUND to render judgment (2) In actions for declaratory relief, the court MAY REFUSE to exercise the power to declare rights and to construe instruments
WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Court has DISCRETION to REFUSE to Grant Declaratory Relief when [Rule 63, Sec. 5] (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
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE COMELEC AND COA SCOPE [Rule 64, Sec. 1]
Applicable only to judgments and final orders of the COMELEC and COA [Rule 64, Sec. 1]
How Done: Motu proprio, or on motion
CONVERSION TO ORDINARY ACTION
Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 195]
[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
An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64, Sec. 2]
Effect of Conversion: Parties shall be allowed to file such pleadings as may be necessary or proper
Basis: This new rule is based on the provisions of Art. IX-A, 1987 Constitution regarding the three constitutional commissions provided for therein.
NOTE: If there has been breach or violation BEFORE filing of the petition, declaratory relief cannot be availed of.
PROCEEDINGS CONSIDERED SIMILAR REMEDIES
REMEDIAL LAW
APPLICATION OF RULE 65 UNDER RULE 64
AS
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
Actions similar to Declaratory Relief and may be brought under Rule 63: (may be filed with the MTC) (1) Action for reformation [See Art. 1359-1369 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]
NOTE: The petition should EXCLUSIVELY with the SC
be
filed
Unlike in Rule 65, petition should be filed within 30 days from notice of judgment or final order or resolution sought to be reviewed.
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
Filing of MFR or MNT, if allowed under the procedural rules of the Commission, shall interrupt the 30-day period.
PAGE 155
UP LAW BOC
CIVIL PROCEDURE
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.
REMEDIAL LAW
Rule 64 Rule 65 The filing of a MR or a Motion for New Trial if allowed, interrupts the period for the filing of The period within the petition for which to file the certiorari. If the petition if the MR or motion is denied, the new trial is denied, is aggrieved party may 60 days from notice of file the petition within the denial of the the remaining period, motion. but which shall not be less than 5 days reckoned from the notice of denial.
NOTE: The Fresh Period Rule is NOT 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) 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] (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]
CERTIORARI, PROHIBITION, MANDAMUS DEFINITIONS AND DISTINCTIONS
Writ of 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. Writ of 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 the latter from usurping jurisdiction with which it is not legally vested.
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
Writ of Mandamus is a writ issued in the name of the State, to an inferior tribunal, corporation, board, or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust, or station.
Rule 64
Rule 65 Directed to any Directed only to the tribunal, board, or judgments, final officer exercising orders or resolutions judicial or quasiof COMELEC and COA judicial functions Filed within 30 days Filed within 60 days from notice of the from notice of the judgment judgment
PAGE 156
UP LAW BOC
CIVIL PROCEDURE
Certiorari v. Prohibition v. Mandamus Certiorari Directed against an entity or person exercising judicial or quasi-judicial functions
Prohibition Directed against an entity or person exercising judicial, quasijudicial, or ministerial functions
Distinguished from Injunction
Mandamus
Injunction Ordinary civil action
Directed against an entity or person exercising ministerial functions
Directed only to the party litigants, without in any manner interfering with the court
Entity or person is alleged to Entity or person is alleged to have: have acted: (1) Neglected (1) Without jurisdiction a ministerial (2) In excess of jurisdiction; or duty; or (3) With grave abuse of (2) Excluded discretion amounting to lack or another from excess of jurisdiction a right or office PURPOSE: PURPOSE To have To annul or respondent nullify a desist from proceeding further proceeding Covers discretionary and ministerial acts Negative and Corrective Preventive remedy remedy To correct To restrain or usurpation of prevent the jurisdiction said usurpation Covers discretionary acts
REMEDIAL LAW
Injunction Ordinary civil action
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
Mandamus Special civil action Directed against a Directed against a tribunal, corporation, litigant board, or officer Purpose is to either Purpose is for the refrain the defendant tribunal, corporation, from performing an board, or officer, to act or to perform not perform a ministerial necessarily a legal and legal duty and ministerial duty
PURPOSE: For respondent to: (1) Do the act required, and (2) Pay damages Covers ministerial acts This remedy is affirmative or positive or negative
PAGE 157
UP LAW BOC
CIVIL PROCEDURE
Certiorari as a Mode of Appeal and as a Special Civil Action
REMEDIAL LAW
Certiorari as a mode of appeal [Rule 45]
Certiorari as a special civil action [Rule 65] Does not stay the judgment or order Stays the judgment subject of the appealed from petition, unless enjoined or restrained Parties are the original parties with The tribunal, board, the appealing party officer, exercising as the petitioner and judicial or quasithe adverse party as judicial functions is the respondent impleaded as without impleading respondents the lower court or its judge May be filed with the Filed only with the SC, CA, SC Sandiganbayan, RTC SC may deny the decision motu proprio on specific grounds
Certiorari as a mode Certiorari as a special of appeal [Rule 45] civil action [Rule 65] A continuation of the An original action appellate process and not a mode of over the original appeal case May be directed against an interlocutory order of Seeks to review final the court or where no judgment or final appeal or plain or orders speedy remedy is available in the ordinary course of law Raises questions of jurisdiction – that is, whether a tribunal, board or officer exercising judicial or quasi-judicial Raises only functions has acted questions of law without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction Filed not later than 60 days from notice of judgment, order, Filed within 15 days or resolution sought from notice of to be assailed and in judgment or final case a motion for order appealed from, reconsideration or or of the denial of new trial is timely petitioner’s motion filed, the 60-day for reconsideration period is counted or new trial from notice of said denial
NOTE: An original action for Certiorari, Prohibition, or Mandamus, is an Independent Action, 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
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 - We follow rules on ordinary civil actions. Jurisdiction is acquired by: (a) Service of summons to respondent or (b) By his voluntary appearance in court
Extension of 30 days Extension no longer may be granted for allowed justifiable reasons Motion for Does not require a reconsideration is a prior motion for condition precedent, reconsideration subject to exceptions
(2) IF ACTION IS FILED WITH THE CA OR SC - 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 PAGE 158
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Discretionary Act
REQUISITES Requisites of Certiorari: (1) There must be a controversy (2) Respondent is exercising judicial or quasijudicial function (3) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (4) There must be no appeal or other plain, speedy, and adequate remedy
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
Requisites of Prohibition: (1) There must be a controversy (2) Respondent is exercising judicial, quasijudicial, or ministerial functions (3) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and (4) There must be no appeal or other plain, speedy, and adequate remedy
Ministerial Act 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
WHEN PETITION FOR CERTIORARI IS PROPER
Only to correct errors of jurisdiction, not errors of judgment. Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. [Suarez, NLRC, 1998]
Requisites of Mandamus: (1) There must be a clear legal right or duty If there is discretion as to the taking or non-taking of the action sought, there is no clear legal duty, and mandamus will not lie
Where appeal is available, certiorari will not lie. Exceptions: (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
(2) The act to be performed must be practical Within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated (3) Respondent must be exercising a ministerial duty A duty which is absolute and imperative and involves merely its execution (4) The duty or act to be performed must be existing A correlative right will be denied if not performed by the respondents (5) There is no other plain, speedy, and adequate remedy in the ordinary course of law
WHEN PETITION FOR INJUNCTION IS PROPER
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] 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] PAGE 159
UP LAW BOC
CIVIL PROCEDURE
General Rule: Prohibition does NOT ordinarily lie to restrain an act which is already fait accompli.
REMEDIAL LAW
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
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, et al. v. COMELEC]
(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
WHEN PETITION FOR MANDAMUS PROPER
The purpose of mandamus is to compel the performance, when refused, of a ministerial duty, this being its main objective.
(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
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. 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]
EXCEPTIONS TO FILING MOTION FOR RECONSIDERATION BEFORE FILING PETITION
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
General Rule: A 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 If a MR is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner within which to file the appropriate petition for certiorari or prohibition with the superior court [SC Admin Circular 00-2-03]
MANNER OF FILING THE PETITION
(1) A verified petition is filed in the proper court accompanied by: (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 (b) Prayer
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 passed upon by the lower court , or are the same as those raised and passed upon in the lower court
PAGE 160
UP LAW BOC
CIVIL PROCEDURE
(3) Where there is urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government (4) Where under the circumstances, a MFR would be useless, as where the court had already indicated that it would deny any motion for reconsideration of its questioned order (5) Where petitioner was deprived of due process and there is extreme urgency for relief (6) Where, in a criminal case, relief from an order of arrest is urgent and granting such relief by trial court is improbable (7) Where the proceedings in the lower court are a nullity for lack of due process (8) Where the proceeding was ex parte or in which the petitioner had no opportunity to object (9) Where the issue raised is one purely of law or where public interest is involved (10) Where the subject matter of the action is perishable
PROCEDURE
(1) A petition for prohibition is filed
REMEDIAL LAW
(e) The COMELEC in election cases involving an act or omission of the MTC/RTC (2) Order to Comment - If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65, Sec. 6] (3) Hearing or Memoranda - After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65, Sec. 8] (4) Judgment - If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled.
certiorari/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. (c) Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65, Sec. 4]
The court, however, may 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. [Rule 65, Sec. 8] (5) Service and Enforcement of Order or Judgment - A certified copy of the judgment rendered shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt.
Where filed: (Follow hierarchy of courts) (a) Supreme Court (b) Court of Appeals; Whether or not the same is in aid of its appellate jurisdiction BUT if it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules. (c) Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person. RTC must exercise jurisdiction over the territorial area (d) Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65, Sec. 4] PAGE 161
UP LAW BOC
CIVIL PROCEDURE
RELIEFS PETITIONER IS ENTITLED TO
REMEDIAL LAW
EFFECTS OF FILING AN UNMERITORIOUS PETITION
The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. [Rule 65, Sec. 8] In these cases, the court may award TREBLE COSTS solidarily against petitioner and counsel, in addition to administrative sanctions
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]
Court may impose, motu proprio, based on res ipsa loquitur, other disciplinary sanctions for patently dilatory and unmeritorious petitions [AM No. 07-7-12-SC]
INJUNCTIVE RELIEF Rule 65, Sec. 7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]
QUO WARRANTO NATURE
Quo Warranto literally means “by what authority”.
General Rule: The petition shall not interrupt the course of the principal case.
It is a prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.
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. 07-7-12SC)
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. Subject Matter: The subject matter of a quo warranto may be a public office, franchise, or position.
Exception: Unless a TRO or preliminary injunction has been issued against the public respondent from further proceedings in the case
NOTE: Rule 66 deleted an office in a corporation created by authority of law. This falls under the jurisdiction of the SEC under PD 902-A.
FACTS/OMISSIONS OF MTC/RTC IN ELECTION CASES
In election cases involving an act or an omission of a municipal or regional trial court, the petition shall be filed EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction [Rule 65, Sec. 4, as amended in AM No. 07-7-12-SC]
Jurisdiction to Issue Writ: Original jurisdiction to issue the writ of quo warranto is vested in the SC, CA, and RTC.
PAGE 162
UP LAW BOC
CIVIL PROCEDURE
DISTINGUISHED FROM QUO WARRANTO IN THE OMNIBUS ELECTION CODE
AGAINST WHOM MAY THE ACTION BE BROUGHT [Rule 66, Sec. 1]
(1) A PERSON who USURPS, intrudes into, or unlawfully holds or exercises a public office, position, or franchise (2) A PUBLIC OFFICER who does or suffers an act, which, by provision of law, constitutes a ground for FORFEITURE OF OFFICE (3) An ASSOCIATION which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to act
ROC Rule 66 OEC Sec. 253 Filed by whom Solicitor General or Public Prosecutor in behalf of the Republic; Individual
REMEDIAL LAW
Any voter
Where filed COMELEC, if against election of a Member of By SolGen: RTC Manila, Congress, Regional, CA or SC; Otherwise, Provincial or City RTC with jurisdiction Officer; over territorial area where respondent appropriate RTC or resides, CA or SC MTC, if against a municipal or barangay officer
Actions for quo warranto against corporations with regard to franchises and rights granted to them, as well as their dissolution now fall under the jurisdiction of the RTC [Securities Regulation Code, Sec. 5.2]
WHO MAY COMMENCE THE ACTION [Rule 66, Sec. 2 – 5]
General Rule: The Government, through the Solicitor General or public prosecutor (1) MANDATORY [Sec. 2]; 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 can be established by proof
Period for filing Within 1 year from Within 10 days after ouster, or from the time proclamation of the right to the position results arose Against whom, grounds A person, who usurps, intrudes into or unlawfully holds or exercises a public office, position or franchise; Ineligibility or disloyalty to the A public officer, who Republic does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office
(2) DISCRETIONARY [Sec. 3]; When to commence: (a) This is upon permission of court (b) Bringing such action (ex relatione) at the request and upon the relation of another person, PROVIDED: (i) Officer bringing it may require an indemnity bond (ii) Leave of court will have to be obtained Exception: An individual may commence the action [Sec. 5]; PROVIDED: (1) He institutes the action in his own name (a) He does not have to secure the intervention of the Solicitor General or public prosecutor (b) No leave of court necessary (2) HOWEVER, he must claim to be entitled to the office or position usurped or unlawfully held or exercised by another.
In fine, Rule 66 applies to quo warranto IN GENERAL while election law governs quo warranto against SPECIFIED elective officials.
PAGE 163
UP LAW BOC
CIVIL PROCEDURE
(a) He must aver and be able to show that he is entitled to the office in dispute. There must be an allegation that respondent is either a de facto or de jure officer
REMEDIAL LAW
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 petitioner’s right to the office in question [Sec. 11]
PERIOD FOR PLEADINGS AND PROCEEDINGS MAY BE REDUCED [Rule 66, Sec. 8]
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]
EXPROPRIATION NATURE
Laches does not attach and failure to file quowarranto proceedings does not operate 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].
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 a government’s right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.
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.
Requisites for the Valid Exercise of the Right (1) There must be due process of law (2) Payment of just compensation (3) Taking must be for public use
JUDGMENT IN QUO WARRANTO ACTION [Rule 66, Sec. 9]
Subject Matter of Expropriation: All properties can be expropriated, EXCEPT: (1) Money (futile; because of just compensation) (2) Choses in action (conjectural in nature; validity and its value)
When respondent is found guilty of usurping, intruding, or unlawfully holding, judgment rendered: (1) That such respondent is ousted and altogether excluded therefrom (2) That petitioner or relator, as the case may be, recover his costs (3) May determine the respective rights in and to the public office, position, or franchise of all parties
When is Expropriation Proper: (1) When the owner refuses to sell (2) When he agrees to sell but an agreement as to the price cannot be reached.
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
[Rule 66, Sec. 10]
Contents of the Complaint [Rule 67, Sec. 1] (1) State with certainty the right and purpose of expropriation (a) Where the right of the plaintiff to expropriate is conferred by law, complaint does not have to state with certainty the right of expropriation [MRR Co. v. Mitchel]
Rights of persons adjudged entitled to office: (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 PAGE 164
UP LAW BOC
CIVIL PROCEDURE
(2) Describe the real or personal property sought to be expropriated (3) Joining of defendants (a) 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 (b) Make the following averments, if needed: (i) If title appears to be in the Republic, although occupied by private individuals (ii) If title is otherwise obscure or doubtful so that plaintiff cannot with accuracy or certainty specify who the real owners are
REMEDIAL LAW
Preliminary deposit: Provide damages if court finds that the plaintiff has no right to expropriate Purposes
Advance payment for just compensation, if property is finally expropriated
If Real Property - Equivalent to the assessed value of the property for purposes of taxation Value If Personal Property – Value shall be provisionally ascertained and fixed by the court With the authorized government Where to depositary deposit Amount is to be held by such bank subject to the orders of the court Deposit shall be in money
Where to File: RTC where property is located. MTC has no jurisdiction since an action for expropriation is incapable of pecuniary estimation.
UNLESS, in lieu of money, court Form of authorizes deposit of a certificate Deposit of deposit of a government bank of the Republic, payable on demand to the authorized government depositary
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION First Stage: 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
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.
Second Stage: Determination of the just compensation for the property sought to be taken.
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.
NOTE: Multiple appeals is allowed in expropriation. Aggrieved party may appeal in each stage separately.
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]
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN RELATION TO R.A.
NO. 8974
On RA 8974 On Nov. 7, 2000, Congress enacted RA 8974, a special law to facilitate the acquisition of right of way, site, or location for national government infrastructure projects:
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] PAGE 165
UP LAW BOC
CIVIL PROCEDURE
Rule 67, Sec. 2
Application
Expropriation in general
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
REMEDIAL LAW
DEFENSES AND OBJECTIONS
RA 8974 Only when national government expropriates 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
No Objection or Has Objection or Defense to the Taking Defense to the Taking What to file and serve Notice of Answer to the appearance and complaint manifestation Period to file Time stated in the summons Contents Specifically designating/identifying Manifestation to the the property in which effect that he has no he claims to have an objection or defense; interest in and the nature and extent of Specifically the interest; designating/ identifying the property in which he ALL his objections and claims to be defenses to the interested complaint or any allegation therein Prohibited Counterclaim, crossclaim, third party complaint in any pleading
Remember the Applicable Rules: (1) RA 8974 specifically governs expropriation for national government infrastructure projects (2) Sec 19, LGC governs the exercise of the power of eminent domain by LGUs through an enabling ordinance
NOTE: 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.
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION
NOTE: In any case, in the determination of just compensation, defendant may present evidence as to the amount of compensation to be paid.
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 RA 8974 [Sec. 4, RA 8974]
NOTE: The defendant CANNOT be declared in default for failure to file Answer. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on the just compensation and to share in the distribution of the award.
PAGE 166
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Procedures: (a) Copies of the Order shall be served on the parties (b) Objections to appointment: (i) Filed with the court within 10 days from service (ii) Objections shall be served to all commissioners (iii) Resolved within 30 days after all commissioners shall have received copies
ORDER OF EXPROPRIATION [Rule 67, Sec. 4]
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
Just Compensation Just Compensation has been defined as the full and fair equivalent of the property taken from its owner by the expropriator. Just compensation means not only the correct determination of the amount to be paid but also the payment of the land within a reasonable time from its taking.
Contents of the Order: (1) That the plaintiff has a lawful right to take the property sought to be expropriated (2) For public use or purpose described in the complaint (3) 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
Market Value Is “that 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)]
Remedy of Defendant: Order of condemnation is final, not interlocutory. Hence, it is appealable. Effects of the Order: (1) Plaintiff not permitted to dismiss or discontinue the proceeding (a) EXCEPTION: On such terms as the court deems just and equitable, plaintiff may be allowed to dismiss or discontinue (2) Forecloses any further objections to the right to expropriate, including the public purpose of the same
Time when market value should be fixed: (1) When plaintiff takes possession before institution of proceedings, value should be fixed as of the TIME OF TAKING (2) When the taking coincides with or subsequent to the commencement of proceedings, DATE OF FILING of the complaint should be the basis
APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON REPORT
ASCERTAINMENT OF JUST COMPENSATION [Rule 67, Sec. 5]
Upon rendition of the Order of Expropriation, the court issues an Order of Appointment.
Qualifications of the Commissioners: (1) Competent and (2) Disinterested
Order of Appointment: (1) Court appoints not more than 3 commissioners to ascertain and report to the court the just compensation for the property
Proceedings by Commissioners [Rule 67, Sec. 6] (1) 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) Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them
(2) Contents: (a) It shall 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
PAGE 167
UP LAW BOC
CIVIL PROCEDURE
Duties of Commissioners: (1) View and examine the property sought to be expropriated and its surroundings, and may measure the same (a) Due notice to parties to attend must first be given UNLESS the parties consent to the contrary (b) After this, each party may argue the case
REMEDIAL LAW
(b) Recommit to commissioners for further report of facts, for cause shown (c) Set aside the report and appoint new commissioners; (d) Accept the report in part and reject in part (e) Make such order or render such judgment as shall secure the plaintiff and the defendant
(2) They shall assess the consequential damages to the property not taken and deduct from such the consequential benefits to be derived by owner (a) In no case shall the consequential benefits assessed exceed the consequential damages (b) In no case shall the owner be deprived of the actual value of his property taken
RIGHTS OF PLAINTIFF JUDGMENT AND PAYMENT
UPON
[Rule 67, Sec. 10]
When will the right of plaintiff TO ENTER the property sought to be appropriated or RIGHT TO RETAIN it should he have taken immediate possession thereof accrue? (1) RIGHT TO RETAIN: Upon filing of complaint, serving notice to defendant, and after depositing the assessed value of property for taxation purposes with authorized government depositary [Sec. 2]
Report by Commissioners [Rule 67, Sec. 7] Commissioners shall make a full and accurate report to the court of all their proceedings. Such proceeding shall not be effectual until court has accepted their report and rendered judgment in accordance with their recommendations.
(2) RIGHT TO ENTER: (a) Upon payment by plaintiff to defendant of compensation fixed by judgment, with legal interest from taking [Sec. 10] (b) After tender to defendant of amount so fixed and payment of the costs [Sec. 10]
Report shall be filed within 60 days from date commissioners were notified of their appointment. Time may be extended by court discretion,
EFFECT OF JUDGMENT
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
RECORDING
OF
Contents of the Judgment (1) Statement of the particular property or interest therein expropriated, with adequate description (2) Nature of the public use or purpose for which it is expropriated
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
In case of real estate, a certified true copy of such judgment shall be recorded in the registry of deeds of the place in which property is situated. Effect is to vest title. Title in Expropriation is vested: (1) If PERSONAL property, upon payment of just compensation [Sec. 10] (2) If REAL property, upon payment of just compensation AND registration of property [Sec. 13]
(2) Court may: (a) After hearing, accept the report and render judgment in accordance therewith
PAGE 168
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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 REAL ESTATE MORTGAGE NATURE
Foreclosure of Mortgage is a proceedings in a court of justice conducted according to legal forms 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.
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE [Rule 68, Sec. 2]
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.
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 including interests, other charges approved, costs
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. 99-1005-0.
(2) Render judgment for the sum so found due (3) Order that the amount be paid to the court or to judgment obligee (a) Within a period of not less than 90 days but not more than 120 days from entry of judgment (b) In default of such payment, property shall be sold at public auction to satisfy judgment
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 the Complaint: (1) The following dates: (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 (2) Its assignments, if any (3) 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 (4) Description of the mortgaged property (5) Amount claimed to be unpaid
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 NOTE: Multiple appeals are allowed under Rule 68 (1) Judgment of foreclosure is appealable [Sec. 2] (2) Order confirming foreclosure sale is a final disposition with respect to the issue of validity and regularity of the sale [Sec. 3] (3) Deficiency judgment is a disposition on the merits of the correctness of such award [Sec. 6]
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 PAGE 169
UP LAW BOC
CIVIL PROCEDURE
SALE OF MORTGAGED PROPERTY; EFFECT [Rule 68, Sec. 3]
REMEDIAL LAW
DISPOSITION OF PROCEEDS OF SALE [Rule 68, Sec. 4]
(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
When Proper: When Defendant fails to pay the amount of judgment within the period specified, the court shall order the property to be sold. 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 non-litigable and may be made ex parte. [Gov’t of P.I. v De las Cajigas (1931)]
DEFICIENCY JUDGMENT; INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT
NOTE: Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof.
[Rule 68, Sec. 6]
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.
Order of Confirmation - When confirmed by an order of the court, also upon motion, it shall 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.
In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)]
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]].
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)]
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, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale.
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 (a) If not, plaintiff shall be entitled to execution at such time as the balance remaining becomes due
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, unless a third party is actually holding the same adversely to the judgment obligor.
PAGE 170
UP LAW BOC
CIVIL PROCEDURE
Instances when court CANNOT render deficiency judgment (1) Recto Law [Art. 1484, par. 3] (2) When mortgagor is a non-resident and is not found in the Philippines (3) When mortgagor dies, mortgagee may file his claim with the probate court [Sec. 7, Rule 86] (4) If mortgagor is a third person but not solidarily liable with debtor No deficiency judgment may be rendered against owner who is not a mortgagor and has not assumed personal liability for the debt 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 [Sec. 7, Rule 86]
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
JUDICIAL FORECLOSURE vs. EXTRAJUDICIAL FORECLOSURE
Judicial Foreclosure
Extrajudicial Foreclosure Requires court No court intervention intervention necessary There is only an Right of redemption equity of redemption exists Governed by Rule 68 Governed by Act 3135 No Deficiency judgment because There could be a there is no judicial Deficiency Judgment proceeding but recovery of deficiency is allowed Recovery of Recovery of deficiency deficiency can be is through an done by mere independent action motion Judicial Foreclosure
No right of redemption, only equity of redemption
EXCEPT: Those granted by banks or banking institutions as provided by the General Banking Act (mortgagor may exercise a right of redemption)
EQUITY OF REDEMPTION vs. RIGHT OF REDEMPTION
Equity of Redemption is the 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
REMEDIAL LAW
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 or deed of
Period is 1 year from date of registration of certificate of sale Governed by Sec. 2931, Rule 39 Extrajudicial Foreclosure Mortgagor has a right to redeem the property within one year from registration of the deed of sale EXCEPT: Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, juridical persons shall have the right to redeem until, but not after, the registration of the certificate of foreclosure sale with the Register of Deeds which in no case shall be more than 3 months after foreclosure, whichever is earlier
NOTE: What Sec. 2 and 3, Rule 68 provide for is the mortgagor’s EQUITY, nor right, of redemption. - This may be exercised by him even beyond the period to pay the judgment obligation and even after the foreclosure sale itself, provided it be before the order of the confirmation of sale PAGE 171
UP LAW BOC
CIVIL PROCEDURE
PARTITION
WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS [Rule 69, Sec. 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.
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] Venue: An action for partition should be filed in the RTC of the province where the property or part thereof is situated.
Partition may be: (1) JUDICIAL – Procedure is Rule 69 (2) EXTRAJUDICIAL – No court intervention required
Parties (1) The plaintiff is the person who is supposed to be a co-owner of the property (2) Defendants are all the co-owners, who are indispensable parties (3) Creditors or assignees of co-owners may also intervene and object to the partition
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. 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.
WHEN CAN PARTITION BE MADE General Rule: It can be made anytime. The right to demand partition is imprescriptible.
REMEDIAL LAW
MATTERS TO ALLEGE IN COMPLAINT FOR PARTITION
THE
Contents of the Complaint: (1) Nature and extent of his title (2) Adequate description of the real estate sought to be partitioned (3) Joining of Defendants – All other persons interested in the property
TWO STAGES IN EVERY ACTION FOR PARTITION
Exception to Imprescriptibility of Right to Partition: 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.
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.
Exceptions to the Right to Ask for Partition: (1) When there is a stipulation against it, not exceeding 10 years [Art. 494, Civil Code] (2) When partition is prohibited by the donor or testator for a period not exceeding 20 years [Art. 494, 1083 Civil Code] (3) When partition is prohibited by law (e.g. ACP, party wall) [Art. 494, Civil Code] (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 [Art. 495 Civil Code] or (5) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084 Civil Code]
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)]
PAGE 172
UP LAW BOC
CIVIL PROCEDURE
Second Stage: Actual partitioning of the subject property
How Done: The court appoints not more than 3 competent and disinterested commissioners to make the partition. [Sec. 3]
This is also a complete proceeding and the order or decision is appealable.
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]
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.
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 (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
There can be no partition again because there is no more common property. [Noceda v. CA (1999)]
ORDER OF PARTITION PARTITION BY AGREEMENT
REMEDIAL LAW
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]
Assignment of Real Estate to One Party
[Sec. 5] (1) 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 (2) 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
PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT
Commissioner’s Report: Commissioners shall make a full accurate report to the court. Contents: (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
When proper: If parties fail to agree on the manner of partition, commissioners are appointed to make partition.
PAGE 173
UP LAW BOC
CIVIL PROCEDURE
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
Contents of Judgment
Effects of Judgment
If Property Is Sold And Sale Is Confirmed By The Court Judgment shall state Judgment shall vest the name of the the real estate in the purchaser or purchaser(s), making purchasers and a the payment(s) free definite description of from the claims of the parcels of real any parties to the estate sold to each action. purchaser
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
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]
(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; (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
PARTITION OF PERSONAL PROPERTY
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]
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.
JUDGMENT AND ITS EFFECTS [Rule 69, Sec. 11]
Contents of Judgment
REMEDIAL LAW
Effects of Judgment
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)]
If Actual Partition Is Properly Made Judgment shall state Judgment shall vest definitely, by metes in each party to the and bounds and action in severalty the adequate description, portion of the real the particular portion estate assigned to of the real estate him. assigned to each party. If The Whole Property Is Assigned To One Of The Parties After Payment Judgment shall vest Judgment shall state in the party making the fact of such the payment the payment and of the whole of the real assignment of the real estate free from any estate to the party interest on the part of making the payment. the other parties.
PAGE 174
UP LAW BOC
CIVIL PROCEDURE
DISTINGUISHED FROM ACCION PUBLICIANA, ACCION REIVINDICATORIA, ACCION
FORCIBLE ENTRY AND UNLAWFUL DETAINER
INTERDICTAL
NATURE
Ejectment cases are SUMMARY proceedings intended to provide an expeditious means of protecting actual possession of property.
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 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. However, if not brought within 1 year, RTC has jurisdiction
Reason: 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. NOTE: The Rule on Summary Procedure applies only in cases filed before the MTC
DEFINITIONS AND DISTINCTIONS Forcibly Entry (Detentacion) Possession of land by defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat, or stealth No previous demand for defendant to vacate the premises is necessary
REMEDIAL LAW
Unlaful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to possession of the property under his contract with the plaintiff Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with lease contract
Plaintiff must prove that he was in prior Plaintiff need not physical possession of have been in prior the premises until he physical possession was deprived thereof by defendant The 1-year period is Period is counted generally counted from the date of last from date of actual letter of demand entry on land 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.
Accion Accion Publiciana Reivindicatoria A plenary action for An action for recovery of recovery of real right of ownership, possession which when necessarily dispossession includes the has lasted for recovery of more than possession one year
RTC has jurisdiction if value of the property exceeds P20,000 outside Metro Manila; exceeds P50,000 within Metro Manila. MTC has jurisdiction if value of property does not exceed the above amounts (RA 7691 expanded the jurisdiction of 1st level courts)
HOW TO DETERMINE JURISDICTION In Accion Interdictal: In the proper Municipal Trial Court NOTE: 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 FEUD case involving agricultural tenants. Jurisdiction is with the HLURB PAGE 175
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Vendor may bring action for ejectment against vendee upon failure to pay installments (4) FEUD lie against the very owner of the property (5) 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
In accion publiciana and accion reivindicatoria: (1) RTC has jurisdiction where the assessed value of the property exceeds P20K or, in MM, P50k (2) MTC has jurisdiction if the assessed value does not exceed said amounts
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM MAINTAINED
PLEADINGS ALLOWED
Who May Institute Proceedings [Rule 70, Sec. 1] (1) In Forcible Entry: (a) A person deprived of possession of any land or building by force, intimidation, strategy, threat, or stealth (FISTS)
Pleadings must be VERIFIED. [Rule 70, Sec. 4] What must be alleged in a complaint for forcible entry: (1) That plaintiff was in prior physical possession of the property in litigation until he was deprived thereof by defendant (2) That the dispossession was through FISTS (3) That the complaint was filed within 1 year from dispossession
(2) In Unlawful Detainer: (a) Lessor, vendor, vendee or other person against whom any land or building is unlawfully withheld (b) Or their legal representatives or assigns
What must be alleged in a complaint for unlawful detainer: (1) That defendant is unlawfully withholding possession from plaintiff because his right to possess had expired (2) That landlord has made a demand upon tenant to comply with the terms of the contract and to return the possession of the property, and that the tenant failed to satisfy the demand within 15 or 5 days, in case of buildings (3) That the complaint is filed within 1 year from demand
Period of Filing: Within ONE (1) year after such unlawful deprivation or withholding of possession. Reckoning points: (1) For forcible entry, it is counted from date of entry or taking of possession (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 (b) Date of notice to quit, in case of tacit renewal of lease (c) Date of revocation of the permit in case of occupancy on mere tolerance or under temporary permit
Allowed pleadings: (1) Complaint (2) Compulsory Counterclaim pleaded in the answer (3) Cross-claim pleaded in the answer (4) Answer
Against whom may the action be maintained Person or persons unlawfully withholding or depriving of possession, or any person/s claiming under them: (1) Action of Forcible Entry and Unlawful Detainer (FEUD) may be maintained only against one in possession at the commencement of the action (2) Tenant with right of possession may bring action against another tenant
ACTION ON COMPLAINT [Rule 70, Sec. 5]
From the examination of allegations in the complaint, the court may: (1) Dismiss the case outright on any grounds mentioned in Rule 16 (2) If there is no ground for dismissal, court issues summons
PAGE 176
UP LAW BOC
CIVIL PROCEDURE
Answer by defendant [Rule 70, Sec. 6] Defendant shall file his answer within 10 days from service of summons
REMEDIAL LAW
(b) After 5 days in case of buildings NOTE: Demand contemplated by Sec. 2 is jurisdictional and is always two-fold.
Effect of Failure to Answer [Rule 70, Sec. 7] Court shall render judgment; motu proprio or upon motion (1) Judgment: (a) Warranted by the facts alleged in the complaint (b) Limited to what is prayed for (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
Demand upon a tenant may be oral. [Jakihaca v. Aquino, 1990] 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]
PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION
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].
Preliminary Conference [Rule 70, Sec. 8] Preliminary conference shall be held not later than 30 days after filing of last answer. Submission of Affidavits and Position Papers [Rule 70, Sec. 10] Affidavits and position papers are to be submitted within 10 days from receipt of the Order stating the matters taken in the preliminary conference.
How done: Possessor may present a motion in the action for issuance of preliminary mandatory injunction 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 [Rule 70, Sec. 15] (2) On appeal to the RTC [Sec. 2] upon motion of plaintiff within 10 days from perfection of appeal
Rendition of Judgment [Rule 70, Sec. 11] Court shall render judgment within 30 days after receipt of affidavits and position papers.
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand against the lessee before the lessor can proceed against him.
Preliminary preventive injunction is available in either case. Note that Sec. 15 makes the provisions of Rule 58 applicable to Rule 70.
NOTE: This applies ONLY to unlawful detainer cases.
NOTE: Note that there is no distinction as to the type of ejectment case involved.
It is only where defendant fails to comply with the demand within the periods provided by Sec. 2 will his possession become unlawful.
The injunction 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
Requisites before the lessor can proceed against lessee (1) Demand is made by lessor to lessee: (a) Demand to pay and vacate; or (b) Demand to comply with conditions of the lease and to vacate (2) Lessee fails to comply with the demand: (a) After 15 days in the case of lands; or PAGE 177
UP LAW BOC
CIVIL PROCEDURE
RESOLVING DEFENSE OF OWNERSHIP [Rule 70, Sec. 16]
REMEDIAL LAW
(b) But such pronouncement is merely provisional (c) It does not bar or prejudice an action between the same parties involving title
In an action for unlawful detainer, the question of possession is primordial while the issue of ownership is generally unessential. The issue of ownership should be raised by the affected party in an appropriate action.
HOW TO STAY IMMEDIATE EXECUTION OF JUDGMENT [Rule 70, Sec. 19]
Under BP 129, when in FEUD cases, the defendants raise the question of ownership in his pleadings, and the issue of ownership, the MTCs nevertheless have undoubted competence to resolve the issue of ownership ONLY TO DETERMINE THE ISSUE OF POSSESSION
General rule: Judgment of the MTC against defendant in ejectment cases is immediately executory 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 The supersedeas bond shall be transmitted by the MTC, with the other papers, to the RTC Clerk (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]
Guidelines laid down by the Court in Refugia, et al. v. CA regarding the legislative prescription in Sec. 33 (2). BP 129: (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 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
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]
(4) The rule in forcible entry, but not in unlawful detainer, is that a party who can prove prior possession can recover such possession even against the owner himself (a) Hence, it prior possession may be ascertained in some other way, inferior court cannot intrude into the issue of ownership
SUMMARY PROCEDURE, PROHIBITED PLEADINGS General rule: All actions for FEUD shall be governed by the summary procedure of Rule 70, irrespective of the amount of damages or unpaid rentals sought to be recovered Exceptions: (1) In cases covered by the agricultural tenancy laws (2) When the law otherwise expressly provides
(5) Where the question of who has prior possession hinges on the issue of who the real owner is (a) Inferior court may resolve issue of ownership
PAGE 178
UP LAW BOC
CIVIL PROCEDURE
Prohibited Motions: (1) Motion for a BILL of particulars (2) Motion for EXTENSION of time to file pleadings, affidavits, or any other paper (3) Motion for NEW trial, or for reconsideration of a judgment, or for reopening of trial (4) Motion to DISMISS the complaint; Except on the ground for lack of jurisdiction over the subject matter or failure to comply with Sec. 12 (5) Motion to DECLARE defendant in default (6) DILATORY motions for postponement
REMEDIAL LAW
Criminal Contempt Punitive in nature
Civil Contempt Remedial in nature Purpose is to provide a Purpose is to preserve remedy for an injured the court’s authority suitor and to coerce and to punish for compliance with an disobedience of its order; for the orders preservation of the rights of private persons Intent is necessary Intent is not necessary Instituted by the aggrieved party, or his State is the real successor, or someone prosecutor who has a pecuniary interest in the right to be protected
Prohibited Pleadings: (1) THIRD-party complaints (2) REPLY (3) INTERVENTIONS (4) PETITION for relief from judgment (5) PETITION for certiorari, mandamus, or prohibition against any interlocutory order issued by the court
CONTEMPT
Proof required is proof beyond reasonable doubt
Proof required is more than mere preponderance
If accused is acquitted, there can be no appeal
If judgment is for respondent, there can be appeal
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 court and justice
NATURE
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 of 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.
Direct Contempt Committed in the presence of or so near a court
Indirect Contempt Not committed within the presence of the court There is charge and Summary in nature hearing Punishment: Punishment: If committed against If committed against the RTC: Fine of not RTC: Fine not exceeding exceeding P2,000 P30,000 and/or and/or imprisonment imprisonment not not exceeding 10 days exceeding 6 months If committed against If committed against the MTC: Fine not MTC: Fine not exceeding P200 and or exceeding P5,000 imprisonment not and/or imprisonment exceeding 1 day not exceeding 1 month Remedy is certiorari or Remedy is appeal prohibition Otherwise known as Otherwise known as Contempt in Facie Constructive Contempt Curiae
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.
KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH 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
PAGE 179
UP LAW BOC
CIVIL PROCEDURE
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of contemptuous act.
Remedy of a person adjudged in direct contempt [Rule 71, Sec. 2] (1) He cannot appeal (2) But he may file certiorari or prohibition (a) Execution of judgment shall be suspended pending resolution of such petition, PROVIDED: (i) He files a bond fixed by the court which rendered judgment, and (ii) Conditioned that he will abide by and perform the judgment should the petition be decided against him
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.
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 interrupt the administration of justice …”
INDIRECT CONTEMPT Specific acts constituting indirect contempt [Rule 70, Sec. 3] (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 (8) Failure by COUNSEL to inform the court of the death of his client
Grounds for Direct Contempt [Rule 71, Sec. 1] (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 (5) When the counsel WILLFULLY and deliberately engages in forum shopping 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
Procedural requisites for indirect contempt proceedings: (1) A charge in writing or an order of the court to appear and explain (2) An opportunity for respondent to comment on the charge and to appear and explain his conduct
Penalties: Offense If RTC or a court of equivalent or higher rank If lower court:
REMEDIAL LAW
Penalty Fine not exceeding P2,000 and/or Imprisonment not exceeding 10 days Fine not exceeding P200 and/or Imprisonment not exceeding 1 day
Two modes of commencing a proceeding for indirect contempt [Rule 70, Sec. 4] (1) Motu proprio by the court against which contempt was committed (a) By order or any other formal charge requiring respondent to show why he should not be punished for contempt (2) Independent action in all other cases PAGE 180
UP LAW BOC
CIVIL PROCEDURE
(a) By a charge commenced by a verified petition with supporting particulars
REMEDIAL LAW
Remedy of a person adjudged in indirect contempt [Rule 71, Sec. 11] May be appealed to the proper court as in criminal cases, but execution shall not be suspended until BOND is filed.
Where Charge is to be Filed [Rule 70, Sec. 5] (1) General rule: Proceeding for Indirect Contempt shall be filed and tried by the court against which the contumacious conduct was committed.
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]
(2) Exceptions: (a) If committed against a lower court, it may be tried by the RTC, regardless of the imposable penalty; and (b) 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
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)]
Penalties for indirect contempt [Rule 71, Sec. 7] Offense If against RTC, or court of equivalent or higher rank
Penalty Fine not exceeding P30,000 and/or Imprisonment not exceeding 6 months Fine not exceeding P500, If committed and/or against lower Imprisonment not court exceeding 1 month Offender may also be ordered to make complete restitution to the party injured by such violation of If contempt the property involved or consists in such amount as may be violation of a writ alleged and proved. of injunction, TRO, or status quo If there is nothing more to order return, offender is personally liable for the restitution of the money equivalent to the lost thing (Rosario Textile Mills v. CA) If committed Penalty shall depend upon against a person the provisions of the law or entity which authorizes penalty exercising quasi- for contempt against such judicial functions persons or entities
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]
CONTEMPT AGAINST QUASIJUDICIAL BODIES [Rule 71, Sec. 12]
Rule 71 shall apply to contempt committed against persons, entities, bodies, or agencies exercising quasi-judicial functions or have 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.
PAGE 181
UP LAW BOC
CIVIL PROCEDURE
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), §13, Ch. 3, Bk VII, Admin Code of 1987]
PAGE 182
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
THE SPECIAL CIVIL ACTIONS
Interpleader
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 [Sec. 33, BP129] Rule 4 applies (2) RTC – value exceeds P300,000 outside Metro Manila, or P400,000 in Metro Manila, or if incapable of pecuniary estimation [Sec. 19, If the action affects title to or possession of real property BP129] Venue is where the real property involved or a portion thereof is situated Real Property (1) MTC – assessed value not more than P20,000 outside Metro Manila or not more than P50,000 in Metro Manila [Sec. 33, BP 129] (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]
All other actions—At the election of the plaintiff (1) Where plaintiff or any of the principal plaintiffs reside; or (2) Where defendant or any of the principal defendants resides; or (3) In case of an non-resident, where he may be found
Rule 4 applies General Rule: In the appropriate RTC Declaratory Relief
Review of Judgments and Final Orders of COMELEC/COA Certiorari Prohibition Mandamus
Quo Warranto
Expropriation Judicial Foreclosure
If the action affects title to or possession of real property Venue is where the real property involved or a portion thereof is situated
Exception: Where the action is for reconveyance, cancellation or quieting of title to real property, jurisdiction will depend on the assessed value of All other actions—At the election of the plaintiff the property (1) Where plaintiff or any of the principal plaintiffs reside; or (2) Where defendant or any of the principal defendants resides; or (3) In case of an non-resident, where he may be found With the SC Via Special Civil Action of Certiorari
Certiorari rules apply
RTC, CA, SC, RTC where the respondent is situated, where petition relates to an act or omission of a Sandiganbayan (in aid of its appellate jurisdiction), corporation, board, an officer, or person COMELEC (in election cases involving an act or omission by MTC or [Rule 65, Sec. 4] RTC, in aid of its appellate jurisdiction_ Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area RTC, CA, SC where respondent resides or any of the respondent resides Sandiganbayan (exclusive original jurisdiction over quo warranto cases filed by the PCGG) If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC COMELEC (exclusive jurisdiction over cases falling under the OEC) SEC for quo warranto against duly licensed association (Corp Code rules File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation apply, not the ROC) or against persons who usurp an office in a corporation With the RTC Where the real property involved, or a portion thereof, is situated With the RTC Where the real property involved, or a portion thereof, is situated PAGE 183
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 4 applies Partition
With the RTC
If the action affects title to or possession of real property Venue is where the real property involved or a portion thereof is situated All other actions—At the election of the plaintiff
Forcible Entry And Unalwful Detainer
Contempt
With the MTC
Where the real property involved, or a portion thereof, is situated
MTC, RTC, CA, SC
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 lower 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
PAGE 184
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
CASES COVERED BY THE RULE
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
Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the following cases falling within their jurisdiction:
EFFECT OF FAILURE TO ANSWER [Sec. 6] If defendant fails to answer the complaint within the period provided, court (motu proprio or on motion of plaintiff) shall render judgment
Special Rules REVISED RULES ON SUMMARY PROCEDURE [Sec. 1]
The judgment: (1) As may be warranted by the facts alleged in the complaint and (2) Limited to what is prayed for
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 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
PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES [Sec. 7]
A preliminary conference shall be held not later than 30 days after the last answer is filed.
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
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 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
PAGE 185
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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.
KATARUNGANG PAMBARANGAY LAW [PD 1508; RA 7160 as amended] 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
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.
CASES COVERED
All disputes, civil and criminal in nature, where parties actually reside in the SAME CITY/MUNICIPALITY are subjected barangay conciliation.
VENUE [RA 7610, Sec. 40])
SUBJECT MATTER FOR AMICABLE SETTLEMENT [Sec. 408, RA 7160]
Parties Between actual residents of the same barangay Between actual residents of different barangays but within same city/municipality
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.
Lupon Lupon of said barangay
Lupon of the barangay where the respondent or any of the respondents actually resides at the option of complainant Involving real property Lupon of barangay or any interest therein were the real property or the larger portion thereof is located Between parties arising Lupon of the barangay at the workplace or at were the workplace or institutions of learning institution is located
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; (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;
EXECUTION
The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. [Sec. 417, RA 7160]
PAGE 186
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(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.
REPUDIATION 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]
COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE [Sec. 5] How commenced: By filing with the court an accomplished and verified STATEMENT OF CLAIM in duplicate
RULES OF PROCEDURE FOR SMALL CLAIMS CASES
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
[A.M. No. 08-8-7-SC]
SCOPE AND APPLICABILITY OF THE RULE
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]
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.
This Rule is applicable in all actions which are; [Sec. 4] (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.
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]
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 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
(2) For damages arising from any of the following; (a) Fault or negligence; (b) Quasi-contract; or (c) Contract;
NOTE: No evidence shall be allowed during hearing which was not attached or submitted together with the Response.
PAGE 187
UP LAW BOC
CIVIL PROCEDURE
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]
PROHIBITED PLEADINGS MOTIONS [Sec. 14]
REMEDIAL LAW
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. (2) If defendant fails to appear – same effect as failure to file Response.
HEARING; DUTY OF THE JUDGE
AND
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]
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.
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] 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.
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]
FINALITY OF JUDGMENT
After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence. The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties.
No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant. [Sec. 17]
The decision shall be final and unappealable. [Sec. 23]
PAGE 188
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
All members of the Court shall share the extra copies of annexes in the interest of economy of paper.
EFFICIENT USE OF PAPER RULE [A.M. No. 11-9-4-SC]
FORMAT AND STYLE
In the Court of Appeals and Sandiganbayan, (1) One original (properly marked) and (2) Two copies with their annexes;
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
the
In the Court of Tax Appeals, (1) One original (properly marked) and (2) 2 copies with annexes On appeal to the En Banc: (a) One Original (properly marked) (b) 8 copies with annexes; and
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.
In other courts, (1) One original (properly marked) (2) With the stated annexes attached to it.
ANNEXES SERVED ON ADVERSE PARTY
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.
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. 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.
Every page must be consecutively numbered.
COPIES TO BE FILED
APPLICABILITY
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:
This Rule applies to all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court.
In the Supreme Court, (1) One original (properly marked) and 4 copies (2) Two sets of annexes, one attached to the original and an extra copy If the case is referred to the Court En Banc: (a) Parties shall file 10 additional copies. (b) For the En Banc, the parties need to submit only 2 sets of annexes, one attached to the original and an extra copy.
PAGE 189
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 190
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Preliminary Matters Special proceedings - A remedy by which a party seeks to establish a status, right or a particular fact [Rule 1, Sec. 3(c)].
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]. There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data). 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)].
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES 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. [Sec. 1, Rule 72]
PAGE 191
In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. [Sec. 2, Rule 72]
DIFFERENCE BETWEEN ACTION AND SPECIAL PROCEEDING Ordinary Civil Action
Special Proceeding
To protect/enforce a To establish right or prevent/ right/status/fact redress a wrong
a
Involves 2 or more May involve only 1 party parties Governed by ordinary Governed by special rules supplemented by rules, supplemented by special rules ordinary rules Courts of GENERAL Courts of jurisdiction 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 answer, counterclaim, applicable. cross-claim, third-party complaint
pleadings not
Period of appeal only Period to appeal is 30 15 days and notice of days. Record of appeal appeal is sufficient. is required in addition to a notice of appeal. Action - formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law. Special proceeding - application or proceeding to establish the status or right of a party, or particular fact. No formal pleadings are required, unless the statute expressly so provides.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS Special Proceeding Venue Settlement of the Estate Residence of the decedent of a Deceased Person If non-resident, place where he had an estate
Jurisdiction MTC if gross value of the estate does not exceed P300,000, or does not exceed P400,000 in Metro Manila otherwise, RTC Escheat Person dies intestate leaving no heir – Residence of RTC the decedent or if non-resident, place where he had estate Reversion – where land lies in whole or in part RTC Unclaimed Balances Act – where deposits are located RTC Appointment of Where minor resides Family Court Guardians Where incompetent resides RTC Appointment of Where will was allowed or RTC Trustees Where the property or portion thereof affected by the trust is situated Adoption Domestic – where adopter resides Family Court Inter-country Adoption – ICAB or, where adoptee ICAB or Family Court resides if filed with the Family Court Rescission of Adoption Where adoptee resides Family Court Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the province or city in case there is no RTC judge Sandiganbayan, only in aid of its appellate jurisdiction For the custody of minors, where petitioner resides or Family Court, CA, SC where minor may be found Habeas Data Where the petitioner or respondent resides, or that RTC generally which has jurisdiction over the place where the data If concerning public or information is gathered, collected, or stored, at the data files or option of the petitioner government offices, SC, CA or Sandigabayan Amparo Where the threat, act or omission was committed or RTC, Sandiganbayan, any of its elements occurred CA, SC or any justice thereof Change of Name Judicial - where petitioner resides RTC Administrative: Local Civil Registry/ Local civil registry where the record sought to be Philippine consulate changed is kept Local civil registry of the place of residence of the interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept) Philippine consulates only for non-resident citizen
PAGE 192
UP LAW BOC
Special Proceeding Appointment of Representative of Absentee/ Declaration of Absence Cancellation / Correction of Entries in Civil Registries Petition for declaration of nullity, annulment, legal separation
SPECIAL PROCEEDINGS
REMEDIAL LAW
Venue Where Absentee resides before his disappearance
Jurisdiction RTC
Judicial - Where corresponding civil registry is located RTC Administrative - Same as change of name Local Civil Registry/ Philippine consulate Where petitioner or respondent has been residing for Family Court at least 6 months prior to the date of filing If non-resident petitioner, where he may be found at the election of the petitioner
Settlement of Estate of Deceased Persons, Venue and Process Modes of Settlement of Estate [Herrera] (1) Extrajudicial Settlement of Estate [Rule 73, Section 1] (2) Summary Settlement of Estate of Small Value [Rule 74, Section 2] (3) Partition [Rule 69] (4) Probate of Will [Rule 75-79] (5) Petition for Letters of Administration [Rule 79]
Uriarte vs. CFI (1970) 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. General Rule: Jurisdiction assumed by a court shall not be contested in a suit or proceeding,
JURISDICTION JURISDICTION OF RTCS
When the value of the estate exceeds P300,000 or P400,000 in Metro Manila. [SC Circular 2199]
JURISDICTION OF MTCS
Exceptions: (1) In an appeal from that court, in the original case, OR (2) When the want of jurisdiction appears on the record.
When the value of the estate does not exceed P300,000 or P400,000 in Metro Manila. [SC Circular 21-99]
VENUE IN JUDICIAL SETTLEMENT OF ESTATE
Sandoval v. Santiago (1949) Court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts and cannot be divested by subsequent act of interested parties.
Inhabitant of the RTC of the province in Philippines at time of which he resides death (citizen/alien)
Testate proceedings take precedence over intestate proceedings of the same estate.
PAGE 193
Decedent
Venue
Inhabitant of foreign RTC of any province in country which he had estate
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 73 relates to venue and not to jurisdiction. The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is only constitutive of venue. Meaning of term “resides” Resides – the personal, actual or physical habitation of a person, actual residence of place of abode and not to his permanent residence or domicile. [Festin]
EXTENT OF JURISDICTION PROBATE COURT
OF
Probate court is of limited jurisdiction General rule: Probate court cannot decide questions as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his property. 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)] POWERS AND DUTIES OF PROBATE COURT Dariano vs. Fernandez Fidalgo (1909) 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
REMEDIAL LAW
In Re: Baldomero Cosme (1937) 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.
Summary Settlement of Estates General Rule: Judicial Settlement Exception: (1) Extrajudicial Settlement of Estate (2) Summary Settlement of Estate of Small Value Extrajudicial Settlement
Summary Settlement
Court intervention not Summary judicial required adjudication needed No will (intestate)
Will may or may not exist (intestate/testate)
No debts
Debts may or may not exist
Heirs are all of age, or minors are represented by judicial or legal reps Instituted only at the May be instituted by instance and by any interested party agreement of all heirs even by a creditor of the estate without the consent of the heirs. Value of the estate is Gross value of estate IMMATERIAL may not exceed P10,000 Bond filed with Bond filed with and to Register of Deeds in an be determined by the amount equal to the court value of the personal property
PAGE 194
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED
BOND REQUIREMENT
Requisites [Sec. 1, Rule 74] (1) Decedent died intestate (2) No debts OR the heirs have already paid such at the time of partition (3) Heirs are all of age OR the minors are represented by their judicial or legal representatives (4) Settlement made in public instrument filed with the register of deeds (5) Fact of the extrajudicial settlement shall be published in a newspaper of general circulation 3 times a week, once each week.
File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed of deprived heirs and creditors. [Sec. 1, Rule 74]
Required only if personal property is involved because real estate is subject to lien
VALIDITY OF ORAL PARTITION
PROCEDURE
Such is VALID, because there is no law that requires partition among heirs to be in writing to be valid. [Pada Kilario v. CA (2000)]
Death of the decedent Division of estate in public instrument or affidavit of adjudication
The requirement under Rule 74.1 is merely for the protection of creditors and the heirs themselves against tardy claims. Where there are no creditors, the requirements no longer apply.
Filing of the public instrument, or affidavit of adjudication if there is only one heir, and bond equivalent to the amount of personal property with the proper Registry of Deeds
VALIDITY OF COMPROMISE AGREEMENT
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
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)]
Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice If there is no disagreement between the heirs If there is disagreement If only one heir
The extrajudicial settlement is not binding on any person who: (1) Has not participated in the extrajudicial settlement; or (2) Had no notice thereof. [Sec. 1, Rule 74]
NO PRECLUSION FROM INSTITUTING ADMINISTRATION PROCEEDINGS
The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds. They may divide the estate in an ordinary action of partition. He may adjudicate to himself the entire estate by means of an affidavit filed in the Registrar of Deeds.
PAGE 195
Sec. 1, Rule 74 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Sec. 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 as if they have good reasons to take a different course of action. [Pereira v CA (1989)]
UP LAW BOC
SPECIAL PROCEEDINGS
TWO-YEAR PRESCRIPTIVE PERIOD Claim by creditors and deprived heirs must be filed within 2 years from the time of distribution/publication. PRESUMPTION OF NO DEBTS It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. [Sec. 4, Rule 74]
AFFIDAVIT OF SELFADJUDICATION BY SOLE HEIR If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of register of deeds. [Sec. 1, Rule 74]
BOND REQUIREMENT
File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed [Sec. 1, Rule 74]
SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE
REMEDIAL LAW
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 any there be (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. [Sec. 2, Rule 74]
PROCEDURE Death of the decedent Application 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
WHEN ALLOWED
(1) Gross value of estate does not exceed P10,000 (2) Fact is made to appear to the RTC (3) Through petition of an interested person (4) Upon hearing Held not less than 1 month nor more than 3 months Counted from the date of the last publication of a notice (5) Notice Which shall be published once a week for 3 consecutive weeks In a newspaper of general circulation in the province 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. (6) Notice to interested persons as the court may direct. (Sec. 2, Rule 74]
PAGE 196
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 Grant allowance of the will, if any Determine persons entitled to estate Pay debts of estate which are due Filing of bond fixed by the court Partition of estate
UP LAW BOC
SPECIAL PROCEEDINGS
There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court will make provisions for such in its resolution of the proceedings.
REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE (1) CLAIM AGAINST THE BOND OR THE REAL ESTATE WITHIN TWO YEARS BOND AND REAL ESTATE REMAIN CHARGED Rule: bond and real estate shall remain charged with a liability to creditor, heirs or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. When applicable: there is an heir or other person who (1) has been unduly deprived of his lawful participation in the estate: 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, settle the amount of such debts or lawful participation, and may issue execution against the bond or against the real estate belonging to the deceased, or both. [Sec. 4, Rule 74] 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)
PAGE 197
REMEDIAL LAW
This is only a Bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto 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, or is in prison or (2) outside the Philippines, he may present his claim within 1 year after such disability is removed. [Sec. 5, Rule 74]
(2) ACTION AGAINST DISTRIBUTES After the two years has passed, claimant must file an ordinary action against the distributees within the statute of limitations. The court shall order how much and in what manner each distributee shall contribute in the payment thereof. [Sec. 4, Rule 74]
(3) ACTION TO ANNUL A DEED OF EXTRAJUDICIAL PARTITION
Prescriptive period: within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents). [Gerona v. De Guzman, 11 SCRA 154 (1964)] HOWEVER, in Amerol v. Bagumbaran (1987), the Court applied Article 1144 (NCC) which stated that actions upon an obligation created by law must be brought within 10 years from the time the right of action accrues. Since implied or constructive trusts are obligations created by law, then the prescriptive period to enforce the same prescribes in 10 years. Thus, an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise. The ruling in the Gerona case was reiterated in Pedrosa v. CA (2001).
(4) NEW ACTION TO ANNUL SETTLEMENT WITHIN REGLEMENTARY PERIOD OF TWO YEARS
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Production and Probate of Will
(5) REOPENING BY INTERVENTION BEFORE RENDITION OF JUDGMENT WITHIN THE REGLEMENTARY PERIOD OF TWO YEARS Jerez v. Nietes (1969) 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.
(6) PETITION FOR RELIEF
Petition for Relief on the ground of fraud, accident, mistake or excusable negligence within 60 days after the petitioner learns of the 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]
(7) RESCISSION IN CASE OF PRETERITION
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]
NATURE OF PROBATE PROCEEDING (1) In Rem (2) Mandatory (3) Imbued with public policy, thus imprescriptible and the doctrine of estoppel does not apply General Rule: A probate proceeding only looks at extrinsic validity. Extrinsic validity - due execution of the will (whether or not the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law) 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) But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings)
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)
PAGE 198
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
DUTY OF CUSTODIAN, EXECUTOR Rodelas v Aranza (1982) General Rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. Exception: A photostatic copy or xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator.
WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE Petitioner for the allowance of the will (1) Executor (2) Devisee (3) Legatee (4) Other person interested in the estate (5) Testator himself, during his lifetime [Sec. 1, Rule 76]
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)]
JURISDICTION, HOW ACQUIRED
(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) If testator files for probate of his will, no publication is required and notice is only to the compulsory heirs. [Sec. 3, Rule 76]
PAGE 199
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. [Sec. 2, Rule 75] The person named executor shall present the will to the court having jurisdiction, unless the will has reached it in any manner, and signify 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. [Sec. 3, Rule 75] Penalty for neglect without excuse satisfactory to the court: Fine not exceeding P2,000 [Sec. 4, Rule 75] PERSON RETAINING WILL MAY BE COMMITTED TO PRISON (1) Has custody of will (2) There is a court order directing him to deliver the will (3) Neglects without reasonable cause to deliver the same [Sec. 5, Rule 75]
Allowance or Disallowance of Will 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
UP LAW BOC
SPECIAL PROCEEDINGS
(5) If the will has not been delivered to the court, the name of the person having custody of it. [Sec. 2, Rule 76]
DEFECT IN PETITION
Defect in petition will not void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. [Sec. 2, Rule 76]
GROUNDS FOR DISALLOWING A WILL (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 [Sec. 9, Rule 76] Note: The grounds for disallowance of will are exclusive.
REPROBATE Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines (now RTC). [Sec. 1, Rule 77]
REQUISITES FOR ALLOWANCE
(1) Copy of the will (2) Order or decree of the allowance in foreign country (3) Filed with a petition for allowance in the Philippines by executor or other person interested (4) Court having jurisdiction shall fix a time and place for the hearing (5) Cause notice thereof to be given as in case of an original will presented for allowance. [Sec. 2, Rule 77]
PAGE 200
REMEDIAL LAW
Evidence necessary for reprobate [Vda. De Perez v. Tolete (1994)] (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
EFFECT
The will shall have the same effect as if originally proved and allowed in such court.
Letters Testamentary and of Administration WHEN AND TO WHOM LETTERS OF ADMINISTRATION ARE GRANTED Letters Testamentary – issued to the executor named in the will, if s/he is competent, accepts the trust, and gives the required bond. [Sec. 4, Rule 78] Letters of Administration – issued to an administrator when (1) No executor named or (2) Executor or executors are incompetent, refuse the trust, or fail to give bond or (3) Person dies intestate. [1st para., Sec. 6, Rule 78]
WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS
(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 drunkenness, improvidence, want of understanding or integrity or conviction of an offense involving moral turpitude. [Sec. 1, Rule 78]
UP LAW BOC
SPECIAL PROCEEDINGS
An executor of an executor cannot administer the estate of the first testator. [Sec. 2, Rule 78]
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 in (1) 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. (Sec. 6, Rule 78) Next of kin are those entitled by law to receive the decedent’s properties. [Gonzalez v. Aguinaldo, et al., (1990)]
REASON FOR PREFERENCE
ORDER
OF
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)] 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 Exception: If the person enjoying such preferential rights is 1) Unsuitable 2) Incompetent 3) Unwilling
PAGE 201
REMEDIAL LAW
4) Neglect to apply for letters 30 days after the death of the decedent Court may reject order of preference when circumstances warrant. [Villamor v. Court of Appeals, (1988)] 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)]
OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Who may oppose - Any person interested in will [Sec. 1, Rule 79]
MEANING OF INTERESTED PERSON
One who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor; thus interest must be immaterial and direct, not merely indirect or contingent. [Saguinsin v. Lindayag, 6 SCRA 874]
GROUNDS
(1) Incompetency of the person/s named in the will as executor/s, or (2) Contestant’s right to the administration [Sec. 4, Rule 79]
UP LAW BOC
SPECIAL PROCEEDINGS
FORM REQUIRED State in writing the grounds why letter should not issue; the court shall then hear and pass upon sufficiency of such grounds. [Sec. 1, Rule 79]
CONTENTS
1) Jurisdictional facts 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 [Sec. 2, Rule 79] 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)] 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. [Sec. 3, Rule 79 and Secs. 3 & 4, Rule 76] 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. [Sec. 4, Rule 79] Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings. [Herrera] Appointment of regular administrator is final and thus, appealable.
PAGE 202
REMEDIAL LAW
POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS Executor
Administrator
Named by the testator Appointed when: in his will and (1) Testator did not subsequently appoint an executor appointed by the court. (2) The appointment was refused (3) The will was disallowed (4) No will (intestate succession) Executor
Administrator
Has the duty to present No such duty as will to the court within regards the 20 days after administrator. (1) he knows of the death of the testator or (2) he knew that he was appointed as executor Unless the will has reached in another manner. The testator may Bond is required unless provide that he may exempted by law. serve without a bond but the court shall direct him to post a bond conditioned only to pay debts. Compensation Apply Sec. 7 of Rule provided in the will 85. controls, unless renounced. If there’s no provision for compensation, Sec. 7 of Rule 85 shall apply.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
RESTRICTIONS ON POWERS OF EXECUTORS AND ADMINISTRATORS
(1) HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY AT ALL TIMES
(1) EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME
(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. [Sec. 1, Rule 84] Failure to freely permit the exercise of the may subject any partner for contempt. (2) 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. [Sec. 2, Rule 84] (3) RIGHT TO POSSESSION AND MANAGEMENT OF THE REAL AND PERSONAL PROPERTIES (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. [Sec. 3, Rule 84] 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)]
PAGE 203
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: (a) With all the interest, (b) Profit (c) Income of such estate and (d) With the proceeds of as much of the estate as is sold by him, at the price at which it was sold. [Sec. 1, Rule 85] (2) PROHIBITED FROM PROFITING BY INCREASE OR LOSING BY DECREASE IN VALUE (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 [Sec. 2, Rule 85] (e) Not accountable for debts due the deceased which remain uncollected without his fault [Sec. 3, Rule 85] (3) ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM 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. [Sec. 4, Rule 85]
UP LAW BOC
SPECIAL PROCEEDINGS
(4) 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. (c) Damages sustained may be charge and allowed against executor or administrator in his/her account; liable on his/her bond. [Sec. 5, Rule 95] (5) ONLY NECESSARY EXPENSES SHALL BE ALLOWED (a) The amount paid by an executor/administrator for costs awarded against him shall be allowed in his administration account [Sec. 6, Rule 85] (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. [Sec. 7, Rule 85] 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)] Attorney’s fees as expenses of administration Administrator may not recover attorney’s fees from estate. (6) EXECUTOR OR ADMINISTRATOR TO MAKE INVENTORY AND RENDER ACCOUNT Inventory Of all real and personal estate of the deceased which has come into his possession or knowledge within 3 months after his appointment [Sec. 1, Rule 83]
PAGE 204
REMEDIAL LAW
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 [Sec. 2, Rule 83] Widow’s allowance The widow and minor or incapacitated children shall, during the settlement of the estate, receive such allowance under the direction of the court [Sec. 3, Rule 83] Accounting mandatory Within 1 year from the time of receiving letters testamentary or of administration unless the court otherwise directs [Sec. 8, Rule 85] 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 [Sec. 9, Rule 85] The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account. (Sec. 9, Rule 85)
APPOINTMENT OF SPECIAL ADMINISTRATOR WHEN APPOINTED
(1) When there is delay in granting letters testamentary or administration, or (2) By any cause, including an appeal from allowance or disallowance of a will. [Sec. 1, Rule 80]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Sec. 8, Rule 86 provides that a special administrator may be appointed with respect to the settlement of the claim of an executor/regular administrator against the estate.
(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. [Sec. 2, Rule 80]
PROCEDURE FOR APPOINTMENT
WHEN SPECIAL DUTIES
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)] Appointment of special administrator lies entirely in the sound discretion of the court. [De Gala v. Gonzales, 53 Phil. 104 (1929)] 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. Order of Appointment Order of Appointment is final and appealable. is interlocutory and is not appealable
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR
(1) Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased, and (2) Preserve the same for the executor/administrator afterwards appointed, and (3) For that purpose may commence and maintain suits as administrator.
PAGE 205
ADMINISTRATOR
CEASES
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. [Sec. 3, Rule 80] Appointment of Special Administrator is interlocutory and is not appealable. [Garcia v. Flores, 101 Phil. 781 (1957)]
GROUNDS FOR REMOVAL OF ADMINISTRATOR 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 EXECUTOR ADMINISTRATOR
OR
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 (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable discharge the trust. [Sec. 2, Rule 82]
to
UP LAW BOC
SPECIAL PROCEEDINGS
REMOVAL OF SPECIAL ADMINISTRATORS Ocampo v Ocampo (2010) 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.
EFFECT OF REMOVAL, DEATH, OR RESIGNATION
(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. [Sec. 2, Rule 82] Acts of the executor/administrator before removal/resignation are valid. [Sec. 3, Rule 82]
Claims Against the Estate ESTATE BURDENED WITH LIEN OF CREDITORS Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. [Suiliong & Co. v. Chio Tayaan, 12 Phil. 13]
PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE (1) To protect the estate of the deceased.
PAGE 206
REMEDIAL LAW
(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)]
TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS General Rule: Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice. [Sec. 2, Rule 86]
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); Sec. 2, Rule 86] Publication for 3 consecutive weeks and posting in 4 public places in the province and in 2 public places in the municipality where the decedent last resided. [Sec. 4, Rule 86]
STATUTE OF NON-CLAIMS 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. [Sec. 5, Rule 86]
UP LAW BOC
SPECIAL PROCEEDINGS
The period, once fixed by the courts, is mandatory. General Rule: Claim must be filed within the time fixed by the notice otherwise they are barred forever. [Sec. 5, Rule 86] 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. Exceptions: (1) When set forth as counterclaims in any action that the executor/administrator may bring against the claimants [Sec. 5, Rule 86] (2) Belated claims [Sec. 2, Rule 86]
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 IF DISPUTED It may be proved and allowed or disallowed by the court as the facts may warrant [Sec. 5, Rule 88] 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 The presentation of a money claim may be waived. [Ignacio v. Pampanga Bus co., Inc., (1967)] If obligation solidary - file claim against decedent as if he is the only debtor If obligation joint - claim confined to the portion belonging to the decedent [Sec. 6, Rule 86]
PAGE 207
REMEDIAL LAW
ALTERNATIVE REMEDIES OF A MORTGAGE 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 (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 (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.
CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE 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. (Sec. 8, Rule 86)
UP LAW BOC
SPECIAL PROCEEDINGS
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 Executor/administrator shall pay the same within the time limited for that purpose. [Sec. 1, Rule 88] 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)]
PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION MADE BY WILL
(1) Testator provided for payment of debt Expenses of administration, or family expenses shall be paid according to such provisions (2) If not sufficient The part of the estate not disposed of by will shall be appropriated for the purpose (Sec. 2,Rule 88)
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN REALTY
General Rule: Personal estate not disposed of by will shall be FIRST chargeable [Sec. 3, Rule 88] Exceptions: (1) Not sufficient for the purpose; or (2) Its sale will redound to the detriment of the participants for the estate
PAGE 208
REMEDIAL LAW
In which case— 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, Court approval must be obtained first, and Any deficiency shall be met by contributions in accordance with the provisions of Sec. 6 of this rule. [Sec. 3, Rule 88]
ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS If court is satisfied that such 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. (2) If estate insolvent - Retain a portion equal to the dividend of the other creditors. [Sec. 4, Rule 88]
PAYMENT OF CONTINGENT CLAIM
If allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. Claim not presented after becoming absolute and allowed within 2 year period – 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. [Sec. 5, Rule 88]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATES, OR HEIRS HAVE BEEN IN POSSESSION
INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY
(2) Liability of heirs and distributes
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
(1) Possession before debts and expenses are paid 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. [Sec. 6, Rule 88] 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, 55 Phil. 13 (1930)]
ORDER OF PAYMENT IF ESTATE IS INSOLVENT
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) [Sec. 7, Rule 88]
DIVIDENDS TO BE PAID PROPORTION TO CLAIMS
IN
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. [Sec. 8, Rule 88]
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. [Sec. 9, Rule 88]
PAGE 209
(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
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. [Sec. 10, Rule 88]
ORDER OF PAYMENT OF DEBTS
Before the expiration of the time limited for the payment of the debts (1) The court shall order the payment thereof, and the distribution of the assets received by the executor/administrator for that purpose among the creditors, (2) As the circumstances of the estate require and in accordance with the provisions of this rule [Sec. 11, Rule 88]
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.
UP LAW BOC
SPECIAL PROCEEDINGS
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. [Sec. 12, Rule 88]
FROM TIME TO TIME FURTHER ORDERS OF DISTRIBUTION
(1) Whole of the debts not paid on first distribution; and (2) If the whole assets not distributed or other assets afterwards come to the hands of executor/administrator. [Sec. 13, Rule 88]
CREDITORS TO BE PAID ACCORDANCE WITH TERMS ORDER
IN OF
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. [Sec. 14, Rule 88]
COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND LEGACIES PERIOD ALLOWED TO ORIGINAL OR EXECUTOR OR ADMINISTRATOR Not exceeding 1 year Two years when special circumstances require [Sec. 15, Rule 88] EXTENSION ALLOWED TO SUCCESSOR OF DEAD EXECUTOR OR ADMINISTRATOR Not exceeding 6 months at a time and not exceeding six months beyond the time allowed to original executor or administrator or Not exceeding two years and a half. [Moran 525, 1980 Ed.; Sec. 16, Rule 88] GROUNDS FOR EXTENSION (1) Original executor/administrator dies (2) New administrator appointed
PAGE 210
REMEDIAL LAW
Requisites (1) Executor/administrator must apply. (2) Notice of the time and place of hearing. (3) Court must hear the application.
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] Sold, even if not to pay the debts when: 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]
WRIT OF EXECUTION FOR PAYMENT OF CLAIMS
General Rule: The probate court does not have the power to issue writs of execution for the payment of claims against the estate. [Aldamiz v. Judge of CFI-Mindoro (1949)] 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.
UP LAW BOC
SPECIAL PROCEEDINGS
Actions by and Against Executors and Administrators
REMEDIAL LAW
WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED
ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS ACTIONS TO BE BROUGHT AGAINST ADMINISTRATORS (1) Recover real or personal property or interest therein (2) Or to enforce a lien thereon and (3) Actions to recover damages for an injury to a person or property [Aguas v. Llenos (1962); Sec. 1, Rule 87]
(1) There is deficiency of assets 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) 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. [Sec. 9, Rule 87]
RECOVERY BY THE
EXECUTOR/ADMINISTRATOR OF PROPERTY FRAUDULENTLY CONVEYED
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)]
EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND ACTIONS WHICH SURVIVE DEATH
For the recovery or protection of the property or rights of the deceased [Sec. 2, Rule 87] Covers injury to property i.e. not only limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished. [Javier v. Araneta, 93 Phil. 1115; Aguas v. Llenos, supra]
PAGE 211
(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. [Sec. 9, Rule 87] If a person before granting letters testamentary or administration (1) Embezzles or alienates (2) Any of the money, goods, chattels, or effects of such deceased Consequence: Such person shall be liable to an action in favor of the executor/administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. [Sec. 8, Rule 87]
UP LAW BOC
SPECIAL PROCEEDINGS
RECOVERY BY CREDITOR OF PROPERTY FRAUDULENTLY CONVEYED
REMEDIAL LAW
LIQUIDATION
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: (1) If executor/administrator failed to commence such action (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 (2) If conveyance or attempt is made in favor of executor/administrator No need for court permission No need for Bond. 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. [Sec. 10, Rule 87]
Distribution and Partition Before there could be a distribution of estate, the following stages must be followed: (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]
PAGE 212
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. Exception: The distributees give a bond conditioned on the payment of above obligations [Sec. 1, Rule 90] The part distributed must not be subject to any controversy or appeal. [Sec. 2, Rule 109]
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)] 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 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. Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares such shall be heard and decided as in ordinary cases. [Sec. 1, Rule 90]
UP LAW BOC
EFFECT OF FINAL DISTRIBUTION
SPECIAL PROCEEDINGS
DECREE
OF
(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)] (4) The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. [Vda. De Alberto v. CA (1989)]
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)]
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION General Rule: Writ of Execution is not allowed in probate proceedings [Vda de Valera v. Ofilada, 59 SCRA 96] 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, provided: - No sufficient effects are retained in the hands of the executor or administrator at the time of distribution
PAGE 213
REMEDIAL LAW
-
Expenses of partition are to be paid by interested parties in proportion to their respective shares or interest - Such apportionment are settled and allowed by the court - Any person interested in the partition does not pay his/her proportion or share [Sec. 3, Rule 90] (3) To satisfy the costs when a person is cited for examination in probate proceedings [Sec. 13, Rule 142]
Trustees DISTINGUISHED FROM EXECUTOR OR ADMINISTRATOR Araneta v. Perez (1962) A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. 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.
BOND Trustee must file bond before performing duties (1) Filed with the clerk of court (2) Amount fixed by the judge (3) Payable to the government of Philippines (4) Sufficient and available for the protection of any party in interest If the trustee fails to furnish a bond as required by the court, he fails to qualify as such. Nonetheless, the trust is not defeated by such a failure to give bond, he is considered to have declined or resigned the trust. [Sec. 5, Rule 98]
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN EXEMPT (1) When testator has directed such exemption; or (2) All persons beneficially interested in the trust, request such exemption Exemption may be cancelled by the court at any time. [Sec. 5, Rule 98]
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. Exemption from inventory: (a) When trustee is not the original trustee appointed (b) Court’s discretion (c) If an inventory has already been filed (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 (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 (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 the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto. [Sec. 6, Rule 98]
PAGE 214
REMEDIAL LAW
REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE (1) Petition by parties beneficially interested (2) Due notice to the trustee (3) Hearing
GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE 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
RESIGNATION
He may resign but the court will determine if resignation is proper
EXTENT OF TRUSTEE
AUTHORITY 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. 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)].
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. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. [Herrera]
UP LAW BOC
SPECIAL PROCEEDINGS
Escheat
REMEDIAL LAW
PROCEDURE
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.
WHEN TO FILE
(1) Person dies intestate; (2) Left properties in the Philippines; and (3) Leaves no heir or person by law entitled to the same [Sec. 1, Rule 91]
REQUISITES FOR FILING OF PETITION (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] 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
Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition: Deceased was a resident of the Philippines—in the RTC of the province where he last resided Deceased was a 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 fix a date and place for the hearing 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 If the court rules in favor of the Republic, It shall assign the personal estate to the municipality or city where the deceased last resided, and the real estate 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. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.
The right of escheat may be waived, either expressly or impliedly. [Roman Catholic Archbishop of Manila v. Monte de Peidad, et al., 68 Phil. 1]
PAGE 215
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM
REMEDIAL LAW
KINDS OF GUARDIANS [Regalado]
PERIOD TO APPEAL AND CLAIM THE ESTATE
Appeal must be made within 5 years from date of judgment; otherwise, barred forever [Sec. 5, Rule 91]
FILED BY WHOM
Devisee, legatee, heir, widow, widower, or other person entitled to such estate appears Such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate [Sec. 5, Rule 91]
PERIOD FOR FILING CLAIM
5 years from date the property was delivered to the State [Sec. 5, Rule 91]
(1) Legal Guardian – deemed as guardian by provision of law, without need of court appointment [Art. 320, CC; 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) The Rules on Guardianship in the Rules of Court govern guardianship of incompetent. Guardianship of minor is now governed by AM 03-02-05-SC.
GUARDIANSHIP OF INCOMPETENT PROCEDURE
Guardianship
Filing of Petition
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] Guardian - 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]
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)].
PAGE 216
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 If granted, service of judgment to the Local Civil Registrar and payment of bond of the guardian.
GENERAL POWERS DUTIES OF GUARDIANS
AND
(1) Care and custody of the person of his ward and management of his property. (2) Management of his property only. (3) Management of property within the Philippines (in case of non-resident ward). [Sec. 1, Rule 96]
UP LAW BOC
SPECIAL PROCEEDINGS
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. [Sec. 2, Rule 96] (2) To settle all accounts of his ward [Sec. 3, Rule 96] (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 [Sec. 3, Rule 96] (4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose [Sec. 3, Rule 96] (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 [Sec. 4, Rule 96] (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. [Sec. 5, Rule 96] (7) To submit to the court a verified inventory of the property of the ward: (a) Within three months after his appointment (b) Annually, and (c) Whenever required upon the application of an interested person. [Sec. 7, Rule 96] (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 [Sec. 4, Rule 96]
PAGE 217
REMEDIAL LAW
(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. [Secs. 7 & 8, Rule 96]
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. [Sec. 8, Rule 96]
PAYMENT OF COMPENSATION
Court may order payment of reasonable compensation not exceeding 10% of the net income of the ward. [Sec. 8, Rule 96]
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF WARD’S PROPERTIES COMPLAINT FILED BY WHOM (1) The guardian or ward, or (2) Any person having actual or prospective interest in the property of the ward. COURT EXAMINATION The court may: (1) require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof, and (2) issue such orders as would secure the property against such embezzlement, concealment or conveyance [Sec. 6, Rule 96]
UP LAW BOC
SPECIAL PROCEEDINGS
SELLING AND ENCUMBERING THE PROPERTY OF THE WARD GROUNDS (1) When the income of a property under guardianship is insufficient to maintain and educate the ward (2) When it is for the benefit of the ward 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. [Sec. 1, Rule 95] ORDER FOR SALE OR ENCUMBRANCE Contents: (1) Grounds for the sale or encumbrance. (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. [Sec. 4, Rule 95]
INVESTMENT OF PROCEEDS AND MANAGEMENT OF PROPERTY
REMEDIAL LAW
(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 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. [Sec. 1, Rule 94]
RULE ON GUARDIANSHIP OVER MINORS [A.M. NO. 03-02-05-SC]
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.
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]
The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. [Sec. 1, Rule 95]
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
(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
PAGE 218
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.
PETITION FOR APPOINTMENT OF GUARDIAN WHO MAY FILE (1) Resident minor (a) Any relative (b) Other person on behalf of a minor (c) The minor himself, if 14 years of age or over
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
(d) The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized. [Sec. 2]
No defect in the petition or verification shall render void the issuance of letters of guardianship. [Sec. 7]
(2) Non-resident minor (a) Any relative or friend of such minor (b) Anyone interested in his property, in expectancy or otherwise. [Sec. 12]
WHO MAY FILE OPPOSITION (1) Any interested person [Sec. 10] (2) The social worker ordered to make the case study report, if he finds that the petition for guardianship should be denied. [Sec. 9]
WHERE TO FILE 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] GROUNDS FOR FILING (1) Death, continued absence, or incapacity of his parents (2) Suspension, deprivation or termination of parental authority (3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority (4) When the best interests of the minor so require. [Sec. 4] CONTENTS OF PETITION (1) Jurisdictional facts (2) Name, age and residence of the prospective ward (3) Ground rendering the appointment necessary or convenient (4) Death of the parents of the minor or the termination, deprivation or suspension of their parental authority (5) Remarriage of the minor’s surviving parent (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 (7) Probable value, character and location of the property of the minor (8) Name, age and residence of the person for whom letters of guardianship are prayed. The petition shall be verified and accompanied by a certification against forum shopping.
PAGE 219
How filed If by interested person - by filing a written opposition. [Sec. 10] If by social worker – by filing an intervention if based on finding the petition should be denied. [Sec. 9] Grounds for Opposition (1) Majority of the minor (2) Unsuitability of the person for whom letters are prayed.
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE Filing of petition. Court shall fix a time and place for hearing. Notice requirement 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 - 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 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. Hearing 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. Issuance or denial of letters of guardianship. 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.
PAGE 220
REMEDIAL LAW
ORDER OF PREFERENCE OF APPOINTMENT (in default of parents or a court-approved guardian) (1) The surviving grandparent. In case several grandparents survive, the court shall select any of them taking into account all relevant considerations. (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. (4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor QUALIFICATIONS The court shall consider the guardian’s: (1) Moral character (2) Physical, mental and psychological condition (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 (6) Lack of conflict of interest with the minor (7) Ability to manage the property of the minor. [Secs. 5 & 10] Grounds are not exhaustive. [Herrera] POWERS AND DUTIES In general (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. (2) Guardian of non-resident minor: Management of all his property within the Philippines [Sec. 17] 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] 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]
UP LAW BOC
SPECIAL PROCEEDINGS
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]
REMOVAL, RESIGNATION, AND TERMINATION OF GUARDIANSHIP REMOVAL How: Upon reasonable notice to the guardian. Grounds: The guardian: (1) Becomes insane or otherwise incapable of discharging his trust (2) Is found to be unsuitable (3) Wasted or mismanaged the property of the ward (4) Failed to render an account or make a return for thirty days after it is due. [Sec. 14] RESIGNATION Ground: Any justifiable cause. 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] TERMINATION Grounds (1) The ward has come of age. (2) The ward has died. How (1) Court motu proprio terminates guardianship (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]
PAGE 221
REMEDIAL LAW
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]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
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)] Objective: Best interest of the child
DOMESTIC ADOPTION v. INTER-COUNTRY ADOPTION Domestic Adoption (RA 8552) Governing Body DSWD Adoption need not be the last resort When may adoption be resorted to (1) Any FILIPINO CITIZEN (regardless of where residing) (a) of legal age (b) at least sixteen (16) years older than the adoptee, (may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent) (c) in possession of full civil capacity and legal rights, (d) of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, (e) who is in a position to support and care for his/her children in keeping Who may adopt with the means of the family. (2) Any ALIEN possessing the same qualifications as above stated for Filipino nationals: Provided, (a) that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, (b) that his/her country has diplomatic relations with the Republic of the Philippines,
PAGE 222
Inter-Country Adoption (RA 8043) Inter-country Adoption Board (ICAB) Adoption only as last resort: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally [Sec.11] (1) FILIPINO CITIZEN permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: (a) is at least twenty-seven (27) years of age (b) 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: (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 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 (f) if married, his/her spouse must jointly file for the adoption; (g) is eligible to adopt under his/her national law;
UP LAW BOC
SPECIAL PROCEEDINGS
Domestic Adoption (RA 8552) (c) he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and (d) that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter; (e) that the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter 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 fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
REMEDIAL LAW
Inter-Country Adoption (RA 8043) (h) 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; (i) 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; (j) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. [Sec. 9] (2) ALIEN with above qualifications [Sec. 9]
(3) The GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. [Sec. 7] When 16 year difference may be waived: (1) If adopter is the biological parent of adoptee (2) If adopter is the spouse of adoptee’s parent [Sec. 7] (a) Any person below eighteen (18) years of (a) Filipino children [Sec. 3(a)] age who has been administratively or judicially declared available for adoption; (b) Below 15 years of age [Sec. 3(b)] Who may be adopted
(b) The legitimate son/daughter of one (c) Who are legally free, meaning children spouse by the other spouse; who have been voluntarily or involuntarily committed to the DSWD [Sec. 3(f) and Sec. (c) An illegitimate son/daughter by a 8] qualified adopter to improve his/her status to that of legitimacy;
PAGE 223
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Domestic Adoption (RA 8552) (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;
Inter-Country Adoption (RA 8043) IRR of 2004 adds that: Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the (e) A child whose adoption has been subject of Inter-Country Adoption xxx [Sec. previously rescinded; or 26] (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). [Sec. 8] Petition for adoption shall be filed with Family Court of the province or city where the prospective adoptive parents reside [Sec. 6, Adoption Rule]
IRR of 2004 provides that: Application shall be filed with the Board or the Central Authority or the Foreign Adoption Agency in the country where the applicant resides. In case of foreign nationals who file petition for adoption under RA 8552 or Domestic Adoption Law, the Court after finding petition to be sufficient in form and substance and proper case for inter-country adoption shall immediately transmit the petition to the board for appropriate action. [Sec. 30] Where adoptive parents reside [Sec. 14]
Venue
Trial Custody
Either with the Philippine RTC having jurisdiction over the child, or with the Intercountry Board through an intermediate agency, in the country of the adoptive parents [Sec. 10]
Takes place in the Philippines
PAGE 224
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Domestic Adoption (RA 8552) Inter-Country Adoption (RA 8043) Only upon petition of adoptee, never by No provision limiting act of rescission only adopters. However, the adopter may to adoptee. disinherit the adoptee. [Sec. 19] In IRR, the procedure is provided for when adoption process is terminated: SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. - In the event of serious damage in the relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care. The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the preadoptive relationship.
Rescission
SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the preadoptive relationship, the Board shall identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family.
PAGE 225
UP LAW BOC
SPECIAL PROCEEDINGS
DOMESTIC ADOPTION ACT RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children. General Rule: Husband and wife shall adopt jointly
REMEDIAL LAW
(2) LEGITIMACY The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes, and entitled to all rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Adoptee is entitled to love, guidance, and support. [Sec. 17, RA 8552]
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), RA 8552]
(3) SUCCESSION Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. [Sec. 18, RA 8552]
PROCEDURE
The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with the court’s order, and all incidents arising after the issuance of the decree. [Sec. 17, Adoption Rule (AR)]
Order of hearing 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
BOOK OF ADOPTIONS
CONFIDENTIALITY PROCEEDINGS
OF
ADOPTION
All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public.
Child and Home Study Report Hearing within six months from issuance of Order
If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used. [Sec. 15, RA 8552]
Supervised Trial Custody for at least six (6) months Decree of Adoption Amendment of Birth Certificate
EFFECTS OF ADOPTION
RESCISSION OF ADOPTION
(1) PARENTAL AUTHORITY All legal ties between the biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter [Sec. 16, RA 8552]
Who may file: 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, RA 8552]
PAGE 226
UP LAW BOC
SPECIAL PROCEEDINGS
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. 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, RA 8552] Where to file: Family Court of the city or province where the adoptee resides. [Sec. 20, AR] 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, AR]
EFFECTS OF RESCISSION OF ADOPTION (1) RESTORATION OF PARENTAL AUTHORITY to original parent if adoptee is a minor (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]
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)]
PAGE 227
REMEDIAL LAW
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 inter-country adoption is in the best interest of the child [Sec. 7, RA 8043]
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 or AR Part II] (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.
“BEST INTEREST OF THE MINOR” STANDARD
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] 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] Placement may be terminated if it is not in the best interests of the child. [Sec. 48, IRR of RA 8043] Any doubt or vagueness in the provisions of these Rules shall be interpreted in consideration of the best interests of the child. [Sec. 61, IRR of RA 8043]
UP LAW BOC
SPECIAL PROCEEDINGS
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. [Sec. 1, Rule 102] Can only be suspended in cases of rebellion or invasion and when public interest requires it. [Art. III Sec. 15] VITAL PURPOSES: In General (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)]
TEMPORARY RELEASE CONSTITUTE RESTRAINT
REMEDIAL LAW
MAY
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)] General Rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot.
Prime specification of the application for a writ of habeas corpus is restraint of liberty. [Moncupa v. Enrile (1986)]
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
In the case of minors (1) Prosecuted for the purpose of determining the right of custody of a child. (2) Question of identity is relevant and material and must be convincingly established. [Tijing v. CA (2008)]
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 action is sufficient. [Villavicencio v Lukban (1919)]
The underlying rationale is not the illegality of the restraint but the right of custody. [Tijing v. CA (2001)]
2) Violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts: (1) Threat of killing their families if they tried to escape (2) Failure of the military to protect them from abduction (3) Failure of the military to conduct effective investigation [Secretary of Justice v. Manalo]
WHO MAY ISSUE THE WRIT (1) The SC,CA, and RTC have concurrent jurisdiction to issue WHC (Sec.2, Rule 102) (2) Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the 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. [Alimpoos v. CA, 106 SCRA 159 (1981)]
PAGE 228
UP LAW BOC
SPECIAL PROCEEDINGS
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] In the case of People v. Valte (1922), it was stated that 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. 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 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)]
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)] 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]
PAGE 229
REMEDIAL LAW
WHC IS NOT THE PROPER REMEDY FOR THE CORRECTION OF ERRORS OF FACT OR LAW
Exception: Error affects court’s jurisdiction (making the judgment void) [Herrera] WHC does not lie where the petitioner has the remedy of appeal or certiorari. [Galvez v. CA (1994)]
WHC IS NOT PROPER: To assert or vindicate denial of right to bail [Galvez v. CA (1994)] For correcting errors in appreciation of fact or law [Sotto v. Director of Prisons (1962)]
WHC IS PROPER: Remedy for reviewing proceedings for deportation of aliens [De Bisschop v. Galang, (1963)] Where the court has no jurisdiction to impose the sentence [Banayo v. President of San Pablo, 2 Phil. 413 (1903)]
CONTENTS OF THE PETITION
WHO MAY APPLY: 1) The party for whose relief it is intended, or 2) By some person on his behalf [Sec. 3, Rule 102] 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)] REQUISITES OF APPLICATION: (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.
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE:
(1) Application for the writ by petition [Sec. 3, Rule 102] (2) Grant or disallowance by court or judge [Secs. 4 & 5, Rule 102] (3) Clerk of Court issues the writ under the seal of court (in case of emergency, by the judge himself) [Sec. 5. Rule 105] (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) [Sec. 7, Rule 105] (5) Execution and return: Officer brings the person before the judge, and Officer makes due return [Sec. 8, Rule 102]
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 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 (4) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Sec. 10, Rule 102]
PAGE 230
REMEDIAL LAW
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. [Sec. 11, Rule 102]
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. 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. (Sec. 13, Rule 102)
DISTINCTION BETWEEN PEREMPTORY WRIT AND PRELIMINARY CITATION
Preliminary citation – requires the respondent to appear and show cause why the peremptory writ should not be granted 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)]
WHEN WRIT NOT PROPER OR APPLICABLE WHC will not issue where: (1) The person alleged to be restrained of his liberty is in custody of an officer (2) Under process issued by the court or judge (3) By virtue of a judgment or order of a court of record (4) The Court or judge had jurisdiction to issue the process, render the judgment or make the order. [Sec. 4, Rule 102]
UP LAW BOC
SPECIAL PROCEEDINGS
The operative act is detention or restraint (whether or not physical). If there is none, no WHC will issue despite the possibility of respondent being liable to civil, criminal, or administrative action. Judicial discretion is exercised in the issuance of the writ, and will not issue as a matter of course [Eugenio, Sr. v. Velez (1990)] Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC. The proper remedy is a motion to quash the warrant of arrest and/or information before the trial court [Ilagan v. Enrile, 1985] Posting of a bail is not a waiver of the right to challenge the validity of the arrest, and therefore the right to resort to WHC [Sec. 26, Revised Rules of Criminal Procedure] A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC. [Tan Me Nio v. Collector of Customs, (1916)
WHEN DISCHARGE NOT AUTHORIZED
REMEDIAL LAW
(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)]
DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA See Annex A.
CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC)
APPLICABILITY
Applies to petitions for custody of minors and writs of habeas corpus in relation thereto.
Discharge from custody will not be allowed if: (1) Jurisdiction appears after the writ is allowed, despite any informality or defect in the process, judgment, or order. (2) Person is charged with or convicted of an offense in the Philippines (3) Person is suffering imprisonment under lawful judgment [Sec. 4, Rule 102] (4) If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death [Sec. 14, Rule 102] (5) Even if the arrest of a person is illegal, due to supervening events (a) Issuance of a judicial process [Sayo v. Chief of Police of Manila (1948)] Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law. [Malaloan v. CA (1994)]
PAGE 231
Rules of Court shall apply suppletorily. [Sec. 1]
PETITION FOR RIGHTFUL CUSTODY
A verified petition for the rightful custody of a minor may be filed by any person claiming such right. Party against whom it may be filed shall be designated as the respondent. [Sec. 2] 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] CONTENTS (1) The personal circumstances of the petitioner and of the respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent
UP LAW BOC
SPECIAL PROCEEDINGS
(3) The material operative facts constituting deprivation of custody (4) Such other matters which are relevant to the custody of the minor [Sec. 4] Verified and accompanied with a certificate against forum shopping signed by the petitioner personally. [Sec. 4] If court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent. [Sec. 5]
ANSWER TO THE PETITION
General rule: Motion to dismiss the petition is not allowed. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. Exception: On the ground of lack of jurisdiction over the subject matter or over the parties. [Sec. 6]
REMEDIAL LAW
Pre-trial brief contains the following: (1) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms (2) A concise statement of their respective claims together with the applicable laws and authorities (3) Admitted facts and proposed stipulations of facts (4) The disputed factual and legal issues (5) All the evidence to be presented (6) The number and names of the witnesses and their respective affidavits (7) Such other matters as the court may require to be included. 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] If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed.
Verified Answer – Personally verified and filed within 5 days after service of summons. [Sec. 7]
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]
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]
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]
MANDATORY PRE-TRIAL
At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have 5 days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial. [Sec. 12]
Notice - 15 days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) Fixing a date for the pre-trial conference (2) Directing the parties to file and serve their respective pre-trial briefs (3) Requiring the respondent to present the minor before the court. The notice of its order shall be served separately on both the parties and their respective counsels. [Sec. 9]
PAGE 232
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 to: (1) Both parents jointly (2) Either parent
UP LAW BOC
SPECIAL PROCEEDINGS
(3) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment (4) The eldest brother or sister over 21 years of age (5) The actual custodian of the minor over 21 years of age (6) Any other person or institution the court may deem suitable. [Sec. 13]
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. 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. 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. 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. The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing. [Sec. 16]
PAGE 233
REMEDIAL LAW
(3) Protection Order (PO) - court may issue a PO requiring any person: (a) 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 (b) 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 (c) To refrain from acts or omission that create an unreasonable risk to minor (d) 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 (e) 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 (f) To comply with such other orders as are necessary for the protection of the minor. [Sec. 17]
JUDGMENT
Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. 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, 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 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]
UP LAW BOC
SPECIAL PROCEEDINGS
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]
REMEDIAL LAW
Petition may also be filed with the appropriate regular courts in places where there are no Family Courts. 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 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. Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20]
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.
PAGE 234
UP LAW BOC
Rights involved
Situations applicable
Party authorized to file Respondents
Before which court or judicial authority filed
SPECIAL PROCEEDINGS
REMEDIAL LAW
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) Right to liberty Petition for the rightful custody of a minor Rightful custody of the aggrieved party Actual violation of the aggrieved party’s right to Unlawful deprivation of rightful custody, or liberty, or rightful custody [Sec. 1] 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 by some Any person claiming rightful custody – this person in his behalf [Sec. 1] covers: (1) Unlawful deprivation of the custody of a minor (2) Which parent shall have the care and custody of a minor [Herrera] May or may not be an officer (1) RTC or any judge thereof A verified petition for a writ of habeas corpus (2) CA or any member thereof in instances involving custody of minors shall be filed with authorized by law the Family Court. The writ shall be enforceable (3) SC or any member thereof [Sec. 2] within its judicial region to which the Family (4) Special jurisdiction given to first level courts Court belongs. in the absence of RTC judges in a province or city [Sec. 35, BP 129] However, the petition may be filed with the (5) In aid of appellate jurisdiction of the regular court in the absence of the presiding Sandiganbayan [RA 8249 further expanding judge of the Family Court, provided, however, its jurisdiction] 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 verified petition shall allege the following: (1) The personal circumstances of the petitioner and of the 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.
Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (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 Contents of the appellation, and the person who is served petition with the writ shall be deemed the person The verified petition shall be accompanied by a intended; certificate against forum shopping, which the (3) The place where he is so imprisoned or petitioner must sign personally. [Sec. 4] 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]
PAGE 235
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Writ of Amparo
the protection of law [Sec. of National Defense v. Manalo (2008)]
WRIT OF AMPARO
The writ applies only to the right to life, liberty and security of persons and not property.
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
“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.
Literally means “to protect”
AM No 7-9-12-SC (Rules on the Writ of Amparo) [Amparo Rule] was promulgated by the Supreme Court by 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].
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. The writ shall cover: (1) Extralegal killings (killings committed without due process of law) and (2) Enforced disappearances [Sec. 1, Amparo Rule] ELEMENTS OF ENFORCED DISAPPEARANCE: (a) An arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government (b) 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
PAGE 236
DISTINGUISHED FROM WRIT OF HABEAS CORPUS AND HABEAS DATA See Annex A.
DISTINGUISHED FROM SEARCH WARRANT 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.” 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 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...”
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
WHO MAY FILE
CONTENTS OF PETITION
(1) Aggrieved party (2) Any member of the immediate family namely: the spouse, children and parents of the aggrieved party (3) 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 (4) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party.
(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.
The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. [Sec. 2]
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
WHERE TO FILE
(1) RTC where the threat, act or omission was committed or any of its element occurred (2) Sandiganbayan—unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions (3) Court of Appeals (4) Supreme Court (5) Any justice of such courts [Sec. 3] May be filed on any day, including Saturdays, Sundays, and holidays; from morning until evening.
PAGE 237
May include a general prayer and equitable reliefs. Signed and verified [Sec. 5] No docket fees and other lawful fees. [Sec. 4]
CONTENTS OF RETURN Upon the filing of the petition, the court shall order the issuance of the writ. The respondent shall file a verified written return together with supporting affidavits within 72 hours after service of the writ. Contents: (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
UP LAW BOC
SPECIAL PROCEEDINGS
(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. (5) The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case. No general denial allowed. [Sec. 9]
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 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]
OMNIBUS WAIVER RULE
Defenses not pleaded deemed waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived. [Sec. 10]
EFFECT OF FAILURE TO FILE A RETURN
In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.
PROCEDURE FOR HEARING ON THE WRIT SUMMARY HEARING
REMEDIAL LAW
BUT: The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. [Sec. 13]
PROHIBITED MOTIONS
PLEADINGS
AND
(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. 11] Allows motion for new trial and petition for relief from judgment.
JUDGMENT
The court shall render judgment within ten (10) days from the time of petition is submitted for decision.
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]
INSTITUTION ACTIONS
OF
SEPARATE
The Rule shall neither preclude the filing of separate criminal, civil or administrative actions nor suspend the filing of criminal, civil or administrative actions. [Sec. 21] But a claim for damages should instead be filed in a proper civil action.
Hearing on the petition shall be summary.
PAGE 238
UP LAW BOC
SPECIAL PROCEEDINGS
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.
EFFECT OF FILING OF 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. Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. [Sec. 22]
CONSOLIDATION
When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition. [Sec. 23]
REMEDIAL LAW
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)] 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. (2) INSPECTION ORDER. Issued only upon verified motion and after due hearing 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. The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons. [Sec. 14(b)] Requires hearing, may be availed of both the petitioner and the respondent 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
INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT When: Upon filing of the petition or at any time before final judgment
INTERIM RELIEFS AVAILABLE TO THE PETITIONER (1) TEMPORARY PROTECTION ORDER. Issued upon motion or motu proprio
PAGE 239
(3) PRODUCTION ORDER Issued only upon verified motion and after due hearing 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.
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Grounds for Opposition 1) National security 2) Privileged nature of the information In which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. [Sec. 14(c)]
IF RESPONDENT IS A OFFICIAL OR EMPLOYEE
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
More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure. (4) WITNESS PROTECTION ORDER Issued upon motion or motu proprio 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))
INTERIM RELIEFS AVAILABLE TO THE RESPONDENT (1) INSPECTION ORDER (2) PRODUCTION ORDER [Sec. 15]
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. [Sec. 15]
PUBLIC
Must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty.
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] 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.
Writ of Habeas Data SCOPE OF WRIT The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1]
AVAILABILITY OF WRIT
QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT: SUBSTANTIAL EVIDENCE
Any aggrieved party may file a petition for the writ of habeas data.
The parties shall establish their claims by substantial evidence.
PAGE 240
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
UP LAW BOC
SPECIAL PROCEEDINGS
(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]
REMEDIAL LAW
See Annex A.
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.
CONTENTS OF THE PETITION
A general denial of the allegations in the petition shall not be allowed. [Sec. 10]
DISTINGUISHED FROM HABEAS CORPUS AND AMPARO 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. 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]
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. 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
PAGE 241
INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS
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. 10]
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]
EFFECT OF FILING OF 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]
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]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
DIFFERENCES UNDER THE APPLICABLE RULES [RULE 103, RULE 108, RA 9048]
Applicability
Nature
Rule 103 Rule 108 RA 9048 Substantial Changes in Substantial changes in Change of First Names or name entries in the civil registry Nicknames (other than name) Change brought about by clerical or typographical errors (includes day and month in the date of birth or sex), except nationality, age, or status Judicial
Judicial
Administrative
Natural person having direct and personal interest in the correction of error in an entry in the civil register
A natural person having direct and personal interest in the change of first name or nickname in the civil register.
RTC of the province in RTC of the province where which the person the civil registry is located desiring to change his name resides.
The local civil registry office of the city or municipality where the record being sought to be corrected/changed is kept.
1. The person desiring to change his name 2. Some other person on Who May File his behalf
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
Where Filed
(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 the LCR Notice requirement
Not a party to the Made a party to the proceeding proceeding as a respondent No mention of notice to The court shall cause be sent reasonable notice to be given to persons named in the petition
PAGE 242
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103 Title: In Re: Petition for Change of Name of X, also known as Y and Z, to ABC. X, Petitioner. Names or Aliases of the Applicant (must appear in the caption of the petition) Omission is fatal to the petition
Rule 108
RA 9048 (1) Facts necessary to establish the merits of the petition. (2) A showing that the petitioner is competent to testify to the matters stated. (3) 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 said aliases
Contents of Petition
REMEDIAL LAW
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. Name asked for The petition shall be Verified petition signed and verified.
Form of Petition
PAGE 243
(1) In the form of an affidavit (2) Verified (3) Subscribed and sworn to before any person authorized by law to administer oaths.
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103 (1) Filing of petition for change of name.
REMEDIAL LAW
Rule 108 (1) Filing of petition
RA 9048 (1) Filing of petition and its supporting papers in 3 copies (2) Court shall to be distributed to: promulgate an order The concerned city or fixing the time and municipal civil registrar or place for hearing the the consul general petition and cause The Office of the Civil reasonable notice to Registrar General be given to the The petitioner persons named in the petition. (2) The City or Municipal
(2) Court shall promulgate an order fixing a date and place for hearing the petition. The date set for the hearing shall NOT be: Within 30 days prior to an election AND Registrar or the Consul Within 4 months after Civil registrar and all General shall post the the last publication of persons who have or claim petition in a conspicuous the notice. any interest which would place for ten 10 consecutive be affected thereby shall (1) Court shall direct a be made parties to the days after he finds the copy of the order to proceeding petition and its supporting be published before documents sufficient in form (1) Court shall direct a the hearing and substance. copy of the order to be published before the (3) The petition shall be At least once a week Procedure for hearing for 3 successive published at least once a Changing of weeks At least once a week for week for 2 consecutive weeks Name 3 successive weeks in a newspaper of general In some newspaper circulation. of general circulation In some newspaper of published in the general circulation province. published in the (4) The City or Municipal Registrar or the Consul province. General shall render a (2) Hearing shall be (2) File opposition decision not later than 5 conducted. Within 15 days from working days after the The SolGen or the notice of the petition or proper provincial or completion of the posting from the last date of city fiscal shall and/ or publication publication appear on behalf of requirement. He shall the Government of transmit a copy of his (3) Hearing shall be the Republic. decision together with the conducted. records of the proceedings to (3) Judgment granting the Office of the Civil or denying the Court may expedite the proceedings and also Registrar General within 5 change of name. grant preliminary working days from the date injunction for of the decision. preservation of rights of the parties
PAGE 244
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Rule 103 Rule 108 RA 9048 (4) Copy of judgments (4)Judgment granting or shall be furnished the denying the change of Where the petition is denied by the city or municipal civil civil registrar of the name. registrar or the consul municipality or city general, the petitioner may where the court (5)Copy of judgments either appeal the decision to shall be furnished the issuing the same is the civil registrar general or civil registrar concerned situated, who shall file the appropriate petition who shall annotate the with the proper court. forthwith enter the same in the records same in the civil (5) The Civil Registrar General register. shall, within 10 working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection. Grounds for objection (a) The error is not clerical or typographical (b) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person (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.
PAGE 245
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
REMEDIAL LAW
RA 9048 (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.
Any interested person Opposition
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 vs. Republic, 1970) (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage (Uy vs. Republic, 1965)
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
PAGE 246
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.
Change of Name and Cancellation or Correction of Entries in the Civil Registry
Oshito vs. 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. Go Chiung Beng vs. 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.
GROUNDS FOR CHANGE OF NAME Republic v. Hernandez (1996)
VALID GROUNDS FOR CHANGE OF NAME
Secan Kok vs. 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.
(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 vs. Republic, 1970) (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage (Uy vs. Republic, 1965)
Silverio vs. 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 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.
Laperal vs. Republic (1962) Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103. 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.
PAGE 247
UP LAW BOC
SPECIAL PROCEEDINGS
People vs. 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. 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
Absentees PURPOSE OF THE RULE 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. There is a need to have a person judicially declared an absentee when: (1) he has properties which have to be taken cared of or administered by a representative appointed by the Court [Article 384, Civil Code]; (2) the spouse of the absentee is asking for separation of property [Article 191, Civil Code]; or (3) his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her [Article 196, Civil Code].
PAGE 248
REMEDIAL LAW
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]
WHO MAY FILE; WHEN TO FILE PETITION FOR APPOINTMENT OF A REPRESENTATIVE [PAR] TO PROVISIONALLY REPRESENT ABSENTEE WHEN A PERSON:
(1) Disappears from his domicile, his whereabouts being unknown (2) Has not left an agent to administer his property or the power conferred upon the agent has expired. [Sec. 1, Rule 107]
WHO MAY FILE PAR
(1) Any interested party (2) Relative (3) Friend [Sec. 1, Rule 107]
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.
FILED AFTER 5 YEARS:
If the absentee left an administrator of his property. [Sec. 2, Rule 107]
WHO MAY FILE PDA AND BE APPOINTED
(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. [Sec. 2, Rule 107]
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN TERMINATED (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
Cancellation or Correction of Entries in the Civil Registry ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048
REMEDIAL LAW
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)] PROCEDURAL REQUIREMENTS ADVERSARY PROCEEDING
OF
AN
Parties – Civil registrar and all persons who have or claim any interest which would be affected are made parties [Sec. 3, Rule 108] Notice and publication – Reasonable notice to be given to the persons named in the petition, and publication once a week for 3 consecutive weeks [Sec. 4, Rule 108] Opposition – 15 days from notice of petition, or from last date of publication of notice [Sec. 5, Rule 109]
RULE 108: SUBSTANTIAL CHANGES IN
ENTRIES IN THE CIVIL REGISTRY, EXCLUDING NAME (GOVERNED BY RULE 103) Substantial Change – change that affects the civil status, citizenship, or nationality of a party. (1) Births (2) Marriage (3) Deaths (4) Legal separations (5) Judgments of annulments of marriage (6) Judgments declaring marriages void from the beginning (7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name [Sec. 2, Rule 108] Such changes have public interest implications and must only be made upon approval of the Court. Cancellation or correction of substantial errors is allowed provided proceeding is adversary. [Chiao Ben Lim v. Zosa (2004)]
PAGE 249
UNDER RA 9048, AS AMENDED BY RA 10172: CLERICAL OR TYPOGRAPHICAL ERRORS General Rule: Entry in a civil register shall be changed or corrected with a judicial order. Exception: Clerical or typographical errors and 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] 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)
UP LAW BOC
SPECIAL PROCEEDINGS
(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] 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 requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia (1986)]
Appeals in Proceedings
Special
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 Exception: Appointment of a special administrator is not appealable 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 [Sec. 1, Rule 109] Exception: Orders granting/denying a MFR/MNT
PAGE 250
REMEDIAL LAW
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.
WHEN TO APPEAL 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.
MODES OF APPEAL NOTICE and RECORD ON APPEAL REQUIRED [Sec. 3, Rule 41] 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)]
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. [Sec. 2, Rule 109]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Annex A 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, scope, function
Limitations
Who may file
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. 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]
WA – Writ of Amparo RWA - Rules on the Writ of Amparo SC – Supreme Court SB – Sandiganbayan CoC – Clerk of Court
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
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 It covers extralegal killings or storing of data or and enforced information regarding the disappearances or threats person, family, home and thereof. [Sec. 1] correspondence of the aggrieved party. [Sec. 1] Shall not diminish, increase Shall not diminish, increase or modify substantive rights or modify substantive rights [Sec. 23] [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 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]
PAGE 251
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 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]
UP LAW BOC
Where filed
Where enforceable
Where returnable
SPECIAL PROCEEDINGS
Habeas Corpus 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] If SC or CA issued, anywhere in the Philippines 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
Amparo 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. 4]
REMEDIAL LAW
Habeas Data 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 public data files of government offices, petition shall be filed with the SC, CA, or SB [Sec. 3]
Writ shall be enforceable Writ shall be enforceable anywhere in the Philippines anywhere in the Philippines [Sec. 4] [Sec. 3]
If the one that granted the If the one that granted the If issued by: writ: writ: (1) The SC or any of its (1) Is the SC or CA, or a (1) Is the SC or any of its justices, before such member thereof, justices, returnable Court or any justice returnable before such before such court or thereof, or CA or SB or court or any member any justice thereof, or any of its justices, or thereof or an RTC before the SB or CA or the RTC of the place (2) An RTC, or a judge any of their justices, or where the petitioner thereof, returnable to any RTC of the or respondent before himself [Sec. 2] place where the resides/has threat, act or omission jurisdiction over the was committed or any place where the data of its elements or information is occurred gathered, stored or collected
PAGE 252
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
Docket Fees
Essential allegations/ Contents of petition
Upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires [Sec. 19]
Signed and verified either 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 (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]
REMEDIAL LAW
Habeas Data (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]
Petitioner shall be None for indigent petitioner exempted from the payment of the docket and Petition shall be docketed other lawful fees and acted upon immediately, without Court, justice or judge shall prejudice to subsequent docket the petition and act submission of proof of upon it immediately [Sec 4] indigency not later than 15 days from filing [Sec. 5] Signed and verified and Verified and written petition shall allege: shall contain: (1) The personal (1) Personal circumstances of the circumstances of petitioner petitioner and (2) Name or appellation respondent and circumstances of (2) Manner the right to the respondent privacy is violated or (3) The right to life, threatened and its liberty, and security effects violated or threatened (3) Actions and recourses with violation, taken by the petitioner (4) The investigation to secure the data or conducted, if any, plus information circumstances of each (4) The location of the (5) The actions and files, registers, or recourses taken by the databases, the petitioner government office, (6) Relief prayed for and the person in charge or control May include a general (5) The reliefs prayed for prayer for other just and equitable reliefs [Sec. 5] Such other relevant reliefs as are just and equitable [Sec. 6]
PAGE 253
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
When proper
Service
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
Habeas Data
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 Also proper to be issued any officer or person to when the court or judge serve it. [Sec. 6] has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned [Sec. 5]
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 her own hand, and may deputize any officer or person to serve it [Sec. 7]
Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) person deputed by the court or judge
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]
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]
May or may not be an Respondent is a public officer [Sec. 6] official or employee or private individual or entity [Sec. 1]
A public official or employee or a private individual or entity engaged in gathering, collecting or storing data [Sec. 1)
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 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]
Respondent
Amparo
REMEDIAL LAW
PAGE 254
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Habeas Corpus Amparo Habeas Data The officer to whom the Respondent files the return Respondent files the return writ is directed shall convey [Sec. 9] [Sec. 10] the person so imprisoned or restrained before: - the judge allowing the writ, or - in his absence or disability, before some other judge of the same court How executed and returned
on the day specified in the writ, unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein 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]
When to file return
Contents of return
On the day specified on the Within 5 working days after Same with WA [Sec. 10] writ [Sec. 8] service of the writ [Sec. 9] 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
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
PAGE 255
(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 info about the petitioner, the nature of such data or information, and the purpose for its collection
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus 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 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 (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 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]
CoC who refuses to issue the writ after its allowance, or A deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions (Sec. 7)
REMEDIAL LAW
Habeas Data (b) The steps or actions taken by the respondent to ensure the security and confidentiality 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 issue the writ after its allowance, or A deputized person who refuses to serve the same, 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 punish with The court, justice, or may judge may order the imprisonment or fine a respondent who refuses respondent who commits
PAGE 256
UP LAW BOC
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
REMEDIAL LAW
Amparo Habeas Data to make a return, or who contempt by: makes a false return, or (1) Making a false return any person who or otherwise disobeys or (2) Refusing to make a resist a lawful process or return or order of the court to be (3) Any person who punished for contempt otherwise disobeys or Contempt or may be resists a lawful imprisoned or imposed process or order of the a fine [Sec. 16) court [Sec. 11] No, not even on highly Yes, by the court, for meritorious grounds. justifiable reasons [Sec. 10] Not allowed [Sec. 9]
Not allowed [Sec. 10]
If not raised in return deemed waived [Sec 10]
Court or justice shall Court, judge, or justice shall proceed to hear the petition hear the motion ex parte, ex parte [Sec. 12] granting the petitioner such reliefs as the petition may Effect of failure warrant to file return Unless the court in its discretion requires the petitioner to submit evidence [Sec. 14] Summary. However, the Summary. With possibility court, justice, or judge may of preliminary conference call for a preliminary similar to the WA [Sec. 14] conference to simplify the Hearing on chambers may issues and look at be conducted where possibility of obtaining respondent invokes the Nature of stipulations and admissions defense of national security Hearing from the parties. or state secrets, or the data Hearing shall be from is of privileged character day to day until [Sec. 12] completed same priority as petitions for WHC [Sec. 13] As specified in the writ [Sec. As specified in the writ, not As specified in the writ, not 8] later than 7 days from the later than 10 working days Date and time issuance of the writ [Sec. 6] from the date of issuance of hearing writ [Sec. 7]
PAGE 257
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus 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]
Prohibited pleadings
Clear and convincing evidence [Dizon v. Eduardo (1988)] Note: no provision in Rule Burden of but in Dizon v. Eduardo, the Proof/Standard SC used “clear and of Diligence convincing evidence”, a stricter standard than “preponderance of evidence” but less stricter that “proof beyond reasonable doubt.” Yes. Consonant with Sec. 13, stating that if warrant of Presumption of commitment is in pursuance Official duty with law, serves as prima facie cause of restraint
Amparo 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]
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 Judgment from the time the petition is submitted for decision [Sec. 18] Within 48 hours from notice 5 working days from the date of the judgment of final of notice of adverse Appeal order appealed [Sec. 39, BP judgment to the SC under 129] Rule 45 [Sec. 19] Consolidated with a criminal Consolidation of action filed subsequent to actions the petition [Sec. 23] Effect of filing criminal action
REMEDIAL LAW
Habeas Data Same as WA [Sec. 13, RWD]
Substantial evidence required to prove the allegations in the petition [Sec. 16]
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] No more separate petition Same as WA [Sec. 21] shall be filed. Reliefs available by motion in the criminal case [Sec. 22]
PAGE 258
UP LAW BOC
CRIMINAL PROCEDURE
PAGE 259
REMEDIAL LAW
UP LAW BOC
CRIMINAL PROCEDURE
General Matters JURISDICTION OVER SUBJECT MATTER AND JURISDICTION OVER PERSON OF THE ACCUSED DISTINGUISHED Jurisdiction over subject matter
Jurisdiction over person of the accused
Conferred by law and 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
JURISDICTION MATTER
OVER
SUBJECT
This refers to the right to act or the power and authority to hear and determine a cause (Gomez v. Montalban (2008)). It is conferred by law and determined by the allegations of the complaint [People v. Catalan (2012)]. General rule: Under the principle of adherence of jurisdiction or continuing jurisdiction, where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal [Palana v. People (2007)]. It is not affected by subsequent legislation.
REMEDIAL LAW
JURISDICTION OVER THE PERSON OF THE ACCUSED
This is acquired either by: (1) Arrest of the accused; or (2) 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 in case of special appearance to challenge the jurisdiction of the court over the person is not voluntary submission [Garcia v. Sandiganbayan (2009)]; (2) By giving bail.
REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION (1) Subject matter jurisdiction, that is, whether or not the court has jurisdiction over the offense by virtue of the imposable penalty and its nature; (2) Jurisdiction over the person of the accused; (3) Territorial jurisdiction, which refers to venue or the place where the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place (Sec. 15(a), Rule 110). 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)].
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)].
PAGE 260
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
JURISDICTION OF CRIMINAL COURTS 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 [Sec. 32(1), BP 129];
(1) Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body [Sec. 20, BP 129];
(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, Sec. 2, Title VII, Book II, RPC;
(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 [Sec. 32(2), BP 129]; (3) Exclusive original jurisdiction over offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof [Sec. 32(2), BP 129; RA 7691]; For Nos. 1-3, cases falling within the exclusive jurisdiction of the RTC and Sandiganbayan are not included. (1) 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;
(2)
Exclusive appellate jurisdiction over all cases decided by the MTC within its territorial jurisdiction [Sec. 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 Dangerous Drugs Act, as amended [RA 8369 (Family Courts Act of 1997)];
(5) Violations of RA 7610 (Child Abuse Act); (6) 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));
PAGE 261
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 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”
UP LAW BOC
CRIMINAL PROCEDURE
MTC/MeTC/MCTC (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);
REMEDIAL LAW
RTC
Sandiganbayan
(7) Violations of intellectual property rights [AM 03-0303-SC (2003); RA 8293];
(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
(8) 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.
(b) Accused commits any other offense or felony, than those specified in subsection (a), whether simple or complexed with other crimes
(2) Violations of BP 22 [AM 0011-01-SC (2003)]; (3) Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129].
(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).
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.
WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION
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 in under an invalid law or stature; (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.
General rule: Courts will not issue injunction.
PAGE 262
UP LAW BOC
CRIMINAL PROCEDURE
Prosecution of Offenses
REMEDIAL LAW
WHO MAY FILE; CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO
CRIMINAL ACTIONS; HOW INSTITUTED
CASES THAT CANNOT BE PROSECUTED DE OFFICIO
IN GENERAL
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.
(1) Adultery and concubinage [Sec. 5, Rule 110]; (2) Seduction, abduction, and acts of lasciviousness; (3) Defamation which consists of imputation of any of the foregoing offenses.
OFFENSES REQUIRING PRELIMINARY INVESTIGATION
WHO MAY FILE COMPLAINT
For offenses which require preliminary investigation (i.e., under Sec. 1, Rule 112, where the penalty prescribed by law is at least four years, two months and one day), the criminal action is instituted by filing the complaint with the appropriate officer for preliminary investigation [Sec. 1(a), Rule 110].
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].
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 [Sec. 1(b), Rule 110].
(1) For adultery and concubinage, the offended spouse. Both guilty parties should be included if both are alive [Sec. 5, Rule 110]. However, prosecution will not prosper if the offended party consented to the offense. (2) For seduction, abduction and acts of lasciviousness, the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by them [Sec. 5, Rule 110]. 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. Exceptions: He may not do so when he is: (1) Incompetent, or (2) Incapable of doing so (3) For oral defamation, the complaint can only be brought upon instance and upon complaint of the offended party.
EVENTS SUBSEQUENT TO FILING
EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD
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 [Sec. 1, Rule 110]. 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.”
DEATH OF OFFENDED PARTY Death after filing the complaint would not deprive the court of the jurisdiction. 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. In adultery/concubinage, death does extinguish the criminal liability of accused.
PAGE 263
not
UP LAW BOC
CRIMINAL PROCEDURE
DESISTANCE BY OFFENDED PARTY 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. 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 [Sec. 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 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. General rule: Pardon must be made before the filing of the criminal complaint in court. 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. If there is more than one accused, the pardon must be extended to all offenders. 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. Pardon
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
CRIMINAL ENJOINED
REMEDIAL LAW
ACTIONS;
WHEN
General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction [Domingo v. Sandiganbayan (1986)] Exceptions: (1) To afford protection to the constitutional rights of the accused; (2) Necessary for the orderly administration for 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; (10) There is clearly no prima facie case against the accused and MTQ on that ground has been denied [Samson v. Guingona (2000)]; (11) Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.
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 [Sec. 5, Rule 110]. Exception: In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, 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. However, the criminal action is still prosecuted under the direction and control of the public prosecutor [Riano (2011)].
PAGE 264
UP LAW BOC
CRIMINAL PROCEDURE
EXTENT OF PROSECUTOR’S CONTROL PRIOR TO FILING OF THE CASE These matters are within the control and supervision of the prosecutor: (1) What case to file; (2) Whom to prosecute; (3) Manner of prosecution; (4) Right to withdraw information before arraignment even without notice and hearing. AFTER FILING OF THE CASE It is the prosecutor’s duty to proceed with the presentation of his evidence. The prosecutor has no power to dismiss the action without the court’s consent. 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. EFFECTS OF LACK OF INTERVENTION OF FISCAL 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)].
SUFFICIENCY OF COMPLAINT OR INFORMATION DEFINITION Sec. 3, Rule 110. 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
REMEDIAL LAW
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)].
TEST OF SUFFICIENCY
A complaint or information is sufficient if it states: (1) The name of the accused; (2) The designation of the offense given by the statute; (3) The acts or omissions complained of as constituting the offense; (4) The name of the offended party; (5) The approximate date of the commission of the offense; and (6) The place where the offense was committed [Sec. 6, Rule 110]. 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)]. 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)]. 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)].
DESIGNATION OF OFFENSE The complaint of 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. If there is no designation of the offense, reference shall be made to the section or section of the statute punishing it [Sec. 8, Rule 110].
PAGE 265
UP LAW BOC
CRIMINAL PROCEDURE
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. 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)].
CAUSE OF THE ACCUSATION IN GENERAL 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 [Sec. 9, Rule 110]. Qualifying and aggravating circumstances must be alleged. Otherwise, they are not to be considered even if proven during the trial.
WHERE THE EXCEPTIONS
LAW
PRESCIBES
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. 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
REMEDIAL LAW
does not fall within the exemptions. Simply put, if the exception is needed for defining the offense, then the information should negate the exception [US v. Chan Toco (1908)].
WHERE COMPLEX CRIME IS CHARGED
Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven.
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. General rule: The information must charge only one offense [Sec. 13, Rule 110]. 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. 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].
MODES OF COMMITTING OFFENSE NOT DUPLICITOUS 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.
PAGE 266
UP LAW BOC
CRIMINAL PROCEDURE
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)].
AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION AMENDMENT IN FORM SUBSTANCE BEFORE PLEA
AND
General rule: It must be made before the accused enters his plea. 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 upon motion of the prosecutor, with notice to the offended party and with leave of court. 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].
AMENDMENT AFTER DURING TRIAL
PLEA
AND
AS TO FORM Amendment as to form can only be made under two conditions: (1) Leave of court must be secured; (2) It does not cause prejudice to the rights of the accused [Sec. 14, Rule 110]. The test as to whether or not a defendant is prejudiced by the amendment of information is: (1) Whether or not a defense under the information as it originally stood would be available after the amendment is made, and (2) Whether or not any evidence the defendant might have would be equally applicable to the information in the one form as in the other. [People v. Casey (1981)].
REMEDIAL LAW
AS TO SUBSTANCE 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)]. Exception: Amendment may be allowed if it is beneficial to the accused [Ricarze v. CA (2007)].
SUBSTITUTION Substitution 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 [Sec. 14, Rule 110]. Subject to the Sec. 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. 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; (3) The accused would not be placed in double jeopardy.
PAGE 267
UP LAW BOC
CRIMINAL PROCEDURE
AMENDMENT AND DISTINGUISHED Amendment
SUBSTITUTION 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)]
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 [Sec. 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. 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)]. The place where the accused was arrested is of no moment.’ Exceptions: (1) Felonies under Article 2, RPC, which are cognizable by the proper court where criminal action was first filed;
REMEDIAL LAW
(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. Lol-lo and Saraw (1922)]; (5) Libel, which may be instituted at the election of the offended part 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 cross-check, 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 SC have the power to order a change of venue or place of trial to avoid miscarriage of justice [Art. VII, Sec. 5, Constitution)].
INTERVENTION OF OFFENDED PARTY General rule: An offended party has the right to intervene in the prosecution of a crime, where the civil action for recovery of civil liability is instituted in the criminal action [Sec. 16, Rule 110]. Note: This is still subject to the control of the prosecutor [Phil. Rabbit Bus Lines v. People (2004)].
PAGE 268
UP LAW BOC
CRIMINAL PROCEDURE
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; (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.
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 [Sec. 1, Rule 111]
SEPARATE ACTION FILED BY THE ACCUSED
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action [Sec. 1, Rule 111].
Prosecution of Civil Action 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. 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 [Sec. 1, Rule 111].
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY INDEPENDENT CIVIL ACTIONS
REMEDIAL LAW
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)].
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 [Sec. 2, Rule 111]. The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime. Civil actions under Articles 32, 33, 34 and 2176, Civil Code, are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action [Sec. 3, Rule 111].
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].
PAGE 269
UP LAW BOC
CRIMINAL PROCEDURE
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 (Sec. 4, Rule 111); (2) When death occurs after arraignment and during pendency of criminal action, it 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. 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. The court shall order the legal representatives to appear and be substituted within 30 days from notice.
PREJUDICIAL QUESTION 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. Under Sec. 7, Rule 111, the elements of a prejudicial question are: (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. A civil action may be considered prejudicial when the following concur:
REMEDIAL LAW
(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)]. 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)].
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 [Sec. 2, Rule 111]. Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case.
WHERE TO FILE SUSPENSION
PETITION
FOR
(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 [Sec. 6, Rule 111]. Note: The Rules preclude a motu proprio suspension of the civil action [Riano (2011)].
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 [Sec. 1, Rule 111].
PAGE 270
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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.
WAIVER OF RIGHT
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)].
When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court [People v. Perez (1960)].
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].
Preliminary Investigation NATURE OF RIGHT DEFINITION
The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication.
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].
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)].
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 [Sec. 1, Rule 112].
The waiver, whether express or implied, must be in a clear and unequivocal manner [Herrera (2007)].
A PI 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.
WHEN RIGHT NOT DEEMED WAIVED
RIGHT TO PRELIMINARY INVESTIGATION
The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan (1993)]. (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. PAGE 271
UP LAW BOC
PURPOSES OF INVESTIGATION
CRIMINAL PROCEDURE
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)]; (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)].
WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE 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.
REMEDIAL LAW
COMELEC The COMELEC may conduct investigation as regards election offenses [Art. IX-C, Sec. 2(6), Constitution; Sec. 265, Omnibus Election Code].
OMBUDSMAN Art. XI, Sec. 12, Constitution. 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 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.
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 05-8-26SC].
PROSECUTOR
The prosecutor makes a determination of probable cause for purposes of indictment. Such finding will not be disturbed by the court unless there is finding of grave abuse of discretion.
COURT
The court makes a determination of probable cause for purposes of issuance of warrant of arrest. 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.
PAGE 272
UP LAW BOC
PROCEDURE FOR INVESTIGATION
1
2
3
CRIMINAL PROCEDURE
PRELIMINARY
Clarificatory Hearing Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness.
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 are respondents, plus 2 copies for the official file [Sec. 3(a), Rule 112]. 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 [Sec. 3(b), 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 [Sec. 3(c), Rule 112].
REMEDIAL LAW
4
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 [Sec. 3(e), Rule 112].
RESOLUTION OF THE INVESTIGATING PROSECUTOR 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 If he finds no probable cause, he shall recommend the dismissal of the complaint [Sec. 4, Rule 112].
If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112].
PAGE 273
UP LAW BOC
CRIMINAL PROCEDURE
REVIEW
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.
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.
No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or ombudsman.
3
4
REMEDIAL LAW
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)].
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.
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.
The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor. The DOJ Secretary may review resolutions, via petition for review to the Secretary of Justice, of his subordinates in criminal cases despite the information being filed in court [Sec. 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)].
If filed directly with the prosecutor, Sec. 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. 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.
PAGE 274
UP LAW BOC
CRIMINAL PROCEDURE
1
A complaint, which complies with Sec. 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.
5
REMEDIAL LAW
After the filing of the complaint/information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112 [Sec. 6, 3rd par., Rule 112].
RESTRAINING PRELIMINARY INVESTIGATION
General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained. Exceptions: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary: (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)].
If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if already arrested) and hold him for trial.
If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.
INQUEST DEFINITION
REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION 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. 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)].
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]. 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] 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.
PAGE 275
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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 [Sec. 6, Rule 112].
Arrest
PROCEDURE
PARLIAMENTARY IMMUNITY
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. 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.
DEFINITION Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113). 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 [Art. VI, Sec. 11, Constitution].
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.
HOW MADE
(1) By an actual restraint of a person to be arrested; (2) By his submission to the custody of the person making the arrest [Sec. 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. Demetriou (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. Sec. 6, Rule 113. An arrest may be made on any day and at any time of the day or night
PAGE 276
UP LAW BOC
CRIMINAL PROCEDURE
ARREST WITHOUT WARRANT, WHEN LAWFUL
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)]. Exceptions: (1) In flagrante delicto [Sec. 5(a), Rule 113]; (2) Hot pursuit arrest [Sec. 5(b), Rule 113]; (3) Arrest of escaped prisoner [Sec. 5(c),, Rule 113]; (4) Other lawful warrantless arrests: (a) Where a person who has been lawfully arrested escapes or is rescued [Sec. 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 [Sec. 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 [Sec. 23, Rule 114].
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 [Sec. 5(a), 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 (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)]. “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)
REMEDIAL LAW
Offense is continuing or has been consummated at the time arrest is made [People v. Evaristo (1992)].
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 Sec. 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)].
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 [Sec. 5(b), Rule 113]. 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. Probable cause must be based on personal knowledge which means an actual belief or reasonable grounds of suspicion [Abelita III v. Doria (2009)].
PAGE 277
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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 [Sec. 5, 2nd par., Rule 113].
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)].
ARREST OF ESCAPED PRISONER
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)].
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 [Sec. 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. Escapee may be immediately pursued or rearrested without a warrant at any time and in any place within the Philippines [Sec. 13, Rule 113]. Ratio: At the time of arrest, the escapee is in continuous commission of a crime (i.e., evasion of service of sentence).
RULES ON ILLEGALITY OF ARREST EFFECT The legality of the arrest affects only the jurisdiction of the court over the person of the accused [People v. Nuevas (2007)]. WAIVER Any objection involving the arrest or the procedure in the court’s acquisition of jurisdiction over the person of an accused must be made before he enters his plea; otherwise the objection is deemed waived [Zalameda v. People (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)]. 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 [Sec. 26, Rule 114].
METHOD OF ARREST BY OFFICER WITH WARRANT DUTIES OF ARRESTING OFFICER (1) Execution of warrant [Sec. 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 [Rule 113, Sec. 7]. (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 [Sec. 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)].
PAGE 278
UP LAW BOC
CRIMINAL PROCEDURE
(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]; (4) No violence or unnecessary force shall be used in making an arrest [Sec. 2, 2nd par., Rule 113]. RIGHTS OF THE ARRESTING OFFICER (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 (Rule 113, Sec. 11), 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.
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 (4) When the giving of such information will imperil the arrest.
REMEDIAL LAW
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 [Rule 113, Sec. 9], 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.
REQUISITES OF A WARRANT OF ARREST
VALID
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 [Art. III, Sec. 2, Constitution].
WHEN ISSUED
A judge issues a warrant of arrest upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence [Sec. 5(a), Rule 112]. 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 (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)].
PAGE 279
UP LAW BOC
CRIMINAL PROCEDURE
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)]. Probable cause demands more than suspicion but it requires less than evidence that would justify conviction [People v. Gabo (2010)].
PROBABLE CAUSE OF FISCAL AND JUDGE DISTINGUISHED Fiscal
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)].
REMEDIAL LAW
Bail NATURE DEFINITION
Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified [Sec. 1, Rule 114].
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 [Art. III, Sec. 14, Constitution]; and (3) To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral (1997)].
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].
WHEN A MATTER OF RIGHT; EXCEPTIONS Bail is a matter of right: (1) Before or after conviction pending appeal by the MTC; (2) Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua or life imprisonment [Sec. 4, Rule 114].
PAGE 280
UP LAW BOC
CRIMINAL PROCEDURE
General rule: Bail is not available when evidence of guilt is strong in capital offenses or those punishable by death, reclusion perpetua or life imprisonment. Exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong.
CAPITAL OFFENSE Sec. 6, Rule 114. 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 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 Sec. 7, RA 9346, it stated that “[c]apital offense or an offense punishable by reclusion perpetua or life imprisonment.”
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)]. Exception: Only upon a clear and convincing evidence: (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. Note: Bail is a matter of discretion in extradition proceedings [Govt. of HK Special Administrative Region v. Olalia (2007)].
REMEDIAL LAW
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].
WHEN A DISCRETION
MATTER
OF
(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. 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. 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 [Sec. 5, Rule 114]. If the conviction by the trial court is for a capital offense, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court [Art. III, Sec. 13, Constitution]. 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]. 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;
PAGE 281
UP LAW BOC
CRIMINAL PROCEDURE
(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. In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation [Harvey v. Defensor-Santiago (1990)].
HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES 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 [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.
MINORS CHARGED WITH CAPITAL OFFENSE
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. The reason for this is that 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.
REMEDIAL LAW
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; (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)]. Note: Evidence presented during the bail hearing are automatically reproduced at the trial [Sec. 8, Rule 114].
WHERE APPLICATION FOR BAIL IS FILED
General rule: The application may be filed with the court where the case is pending. 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]. 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.
PAGE 282
UP LAW BOC
CRIMINAL PROCEDURE
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.
WHEN BAIL IS 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].
REMEDIAL LAW
(3) When accused is found to have previously escaped legal confinement, evaded sentence, or jumped bail; (4) When accused is found to have violated Sec. 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].
INCREASE OR REDUCTION OF BAIL After the accused is admitted to bail and for good cause, the court may increase or decrease the amount.
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].
REDUCED BAIL
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond [Sec. 16, Rule 114].
Bail is nonetheless required when: (1) When accused was caught committing the offense in flagrante; (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;
PAGE 283
UP LAW BOC
CRIMINAL PROCEDURE
FORFEITURE AND CANCELLATION OF BAIL FORFEITURE OF BAIL
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]. 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]
CANCELLATION OF BAIL 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. AUTOMATIC CANCELLATION (1) Upon acquittal of the accused (2) Upon dismissal of the case (3) Upon execution of judgment of conviction [Sec. 22, Rule 114].
REMEDIAL LAW
APPLICATION NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IREGULAR 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. The court shall resolve the objections as early as practicable but not later than the start of the trial of the case.
HOLD/ALLOW DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST 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 rearrested without warrant [Sec. 23, Rule 114]. A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circ. No. 39-97]. 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.
PAGE 284
UP LAW BOC
When it may issue
Validity
Grounds for lifting or cancellation
CRIMINAL PROCEDURE
REMEDIAL LAW
Hold Departure Order
Watchlist Order
(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.
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 non-extendible period of not more than 60 days.
(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.
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.
PAGE 285
UP LAW BOC
CRIMINAL PROCEDURE
Rights of the Accused
REMEDIAL LAW
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)].
RIGHT TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED BEYOND REASONABLE DOUBT
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)]
RIGHT TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL AT EVERY STATE OF THE PROCEEDINGS
The Rules or the law may, however, provide for a presumption of guilt [Hizon v. CA (2009)].
RIGHT TO BE PRESENT
General rule: Presence of the accused during the criminal action is not required and shall be based on his sole discretion.
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.
Exceptions: Presence of the accused mandatory: (1) For purposes of identification; (2) At arraignment; [Sec. 1(b), Rule 116]; (3) At the promulgation of judgment.
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. [Sec.2, Rule 133]
is
Exception to the exception: If the conviction is for a light offense. [Sec. 6, Rule 120]
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)]. This is the “equipoise rule.”
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.
RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM
TRIAL IN ABSENTIA
An accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information [People v. Ortega (1997)]. The charge must be set forth with sufficient particularity to enable the accused to intelligently prepare his defense [Balitaan v. CFI of Batangas (1982)].
Requisites: (1) Prior arraignment; (2) Proper notice of the trial; (3) Failure to appear is unjustifiable [Parada v. Veneracion (1997)]. In this case, there is waiver of right to be present, the right to present evidence and right to cross-examine witnesses [Gimenez v. Nazareno (1988)].
PAGE 286
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
accused is permissible [Villafor vs. Summers (1920)].
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 [Art. III, Sec. 12(1), Constitution; Sec. 2(b) RA 7438].
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)]. 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. 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)]. 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)].
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 [Sec. 1(c), Rule 115].
RIGHT TO TESTIFY AS WITNESS IN HIS BEHALF
RIGHT TO CONFRONTATION
This is subject to cross-examination on any matter covered by his direct examination [Sec. 1(d), Rule 115]. Silence will not, in any manner, prejudice him.
This applies to any witness against the accused at the trial. 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)].
RIGHT AGAINST SELFINCRIMINATION
The right against self-incrimination has no application to juridical persons [BASECO v. PCGG (1987)].
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 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].
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 selfincrimination. The corollary to the proposition is that, an ocular inspection of the body of the PAGE 287
UP LAW BOC
CRIMINAL PROCEDURE
This right is waived by non-appearance. [Carredo v. People (1990)].
REMEDIAL LAW
RIGHT TO APPEAL
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 [Sec. 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)].
In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law [Hilario v. People (2008)]. An appeal in criminal case opens the entire case for review and the appellate court may correct even unassigned errors [People v. Tambis (2008)]. The right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost [People v. Sabellano (1991)]. If the accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal [People v. Omar (1991)].
RIGHT TO COMPULSORY PROCESS This right may be invoked by the accused to secure the attendance of witnesses and the production of evidence in his behalf.
The right to appeal is lost by the unjustified failure to appear at the promulgation of judgment of conviction [Villena v. People (2011)].
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)].
RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATIONS
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
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.
Custodial Investigation involves any questioning initiated by law enforcement 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)]. 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.
IN GENERAL
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)].
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 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)].
PAGE 288
UP LAW BOC
CRIMINAL PROCEDURE
RIGHT TO BE ASSISTED BY COUNSEL AT ALL TIMES
REMEDIAL LAW
RIGHT TO BE ALLOWED VISITS
Waiver of the right to counsel must be made with the assistance of counsel [Art. III, Sec. 1(1), Constitution]. 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. 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 (2) It must be signed in the presence of his counsel or, in the latter’s absence, upon a valid waiver.
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 duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President.
CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS 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. The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification [Sec. 4, 1st par., RA7438].
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. If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer.
OBSTRUCTION, PREVENTION OR PROHIBITION OF RIGHT TO VISITS AND CONFERENCES 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., RA7438].
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].
PAGE 289
UP LAW BOC
CRIMINAL PROCEDURE
Arraignment and Plea
PROCEDURE OF ARRAIGNMENT
ARRAIGNMENT AND PLEA; HOW MADE
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.
DEFINITION
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 [Sec. 1(a), Rule 116]. 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))
DUTY OF THE ARRAIGNMENT
COURT
REMEDIAL LAW
BEFORE
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 [Sec. 6, Rule 116]. 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 Sec. 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.
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]. HOW MADE (1) In open court where the complaint or information has been filed or assigned for trial; (2) By the judge or clerk of court; (3) By furnishing the accused with a copy of the complaint or information;
If the accused does not question the legality of the arrest or search, this objection is deemed waived. PAGE 290
UP LAW BOC
CRIMINAL PROCEDURE
(4) Reading it in a language or dialect known to the accused; (5) Asking the accused whether he pleads guilty or not guilty.
REMEDIAL LAW
(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.
WHEN HELD General rule: The accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person.
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)].
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].
WHEN A PLEA OF NOT GUILTY SHOULD BE ENTERED (1) When the accused so pleaded; (2) When he refuses to plead; (3) When he makes a conditional or qualified plea of guilt [Sec. 1(c), Rule 116]; (4) When the plea is indefinite or ambiguous; (5) When he pleads guilty but presents exculpatory evidence [Sec. 1(d), Rule 116].
In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone [Sec. 1(f), Rule 116; AM No. 03-109-SC Part B(2)].
If the accused who pleaded guilty presents exculpatory evidence, his plea of guilt is withdrawn. The judge must order the accused to plead again or at least direct that a new plea of “not guilty” be entered for him, otherwise there shall be no standing plea for the accused. This is significant because if there is no standing plea, the accused cannot invoke double jeopardy later on.
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.
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.
There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void. 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. PAGE 291
UP LAW BOC
CRIMINAL PROCEDURE
DURING ARRAIGNMENT
REMEDIAL LAW
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)].
At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged.
AFTER ARRAIGNMENT BUT BEFORE TRIAL
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)].
After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary [Sec. 2, Rule 116].
People v. Pastor (2002) listed 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, socioeconomic 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 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
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.
ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE; DUTY OF THE COURT (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 [Sec. 3, Rule 116]. Note: A plea of guilty to a capital offense does not result to an immediate rendering of judgment.
SEARCHING INQUIRY
The procedure in Sec. 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. PAGE 292
UP LAW BOC
CRIMINAL PROCEDURE
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.
REMEDIAL LAW
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
GROUNDS FOR SUSPENSION OF ARRAIGNMENT UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE TIME OF THE AGREEMENT
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.
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE
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 defense counsel had called attention to [People v. Alcalde (2002)].
DEFINITION
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].
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.
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 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.
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.
PAGE 293
UP LAW BOC
CRIMINAL PROCEDURE
Motion to Quash
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.
EXISTENCE QUESTION
OF
REMEDIAL LAW
FORM AND CONTENT
At any time before entering his plea, the accused may move to quash the complaint or information [Sec. 1, Rule 117]. The motion must: (1) Be in writing; (2) Be signed by the accused/his counsel; and (3) Distinctly specify the factual and legal grounds [Sec. 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.
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 [Sec. 19, Rules on Summary Procedure].
PENDENCY REVIEW
GROUNDS
OF
PETITION
FOR
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 60 days from the filing of the petition [DOJ Circ. No. 70].
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 [Sec. 3, Rule 117].
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).
PAGE 294
UP LAW BOC
CRIMINAL PROCEDURE
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.
REMEDIAL LAW
Exceptions: (1) Facts already admitted by the prosecution [People v. Navarro (1997)]; (2) Undisputed facts apparent from the records of the PI and not denied by the prosecutor [Salonga v. Pano (1985)]; (3) Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information [People v. de la Rosa (1988)]; (4) The Rules expressly permits the investigation of facts alleged [People v. Alagao (1966); Sec.s 2(f) and (h), 4 and 5].
FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE
An information which does not charge an offense or does not allege essential elements of a crime is void.
COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED
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)].
This refers to jurisdiction over the subject matter, which is The power to adjudge concerning the general question involved. In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Sec. 15, Rule 110; Lopez v. City Judge (1966)].
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)].
In private crimes, the complaint of the offended party is necessary to confer authority to the court.
The defect is not cured by a failure to move to quash or by a plea of guilty [Suy Sui v. People (1953)].
COURT HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED
Instead of dismissing, however, the court should give the prosecution an opportunity to amend the information.
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)].
Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, the MTQ shall be granted [Sec. 4, Rule 117].
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)].
When the court dismisses the case, the prosecutor should file a valid information, not a petition for review for certiorari. General rule: In the MTQ, facts other than those alleged in the complaint/information may not be considered by the court.
PAGE 295
UP LAW BOC
CRIMINAL PROCEDURE
OFFICER WHO FILED THE INFORMATION HAD NO AUTHORITY TO DO SO
REMEDIAL LAW
MORE THAN ONE OFFENSE IS CHARGED
General rule: The complaint or information must charge only one offense [Sec. 13, Rule 110)]
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).
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.
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 offenses in the same information [People v. Villamor (1998)].
For election offenses, it must be signed by the duly deputized prosecutors and legal officers of the COMELEC. Lack of authority of the officer is not cured by silence, acquiescence, express consent or even by amendment.
If the criminal acts are committed on different occasions, each constitutes a separate offense.
CRIMINAL ACTION OF LIABILITY HAS BEEN EXTINGUISHED
COMPLAINT OR INFORMATION DOES NOT CONFORM SUBSTANTIALLY TO THE PRESCRIBED FORM
Criminal liability is extinguished by: (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.
The formal and substantial requirements are provided for in Secs. 6 to 12, Rule 110. General rule: Lack of substantial compliance renders the accusatory pleading nugatory. Exception: Mere defects in matter of form may be cured by amendment. 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)].
Protection from prosecution under a statute of limitation is a substantive right. [People v. Sandiganbayan (1992)]
Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Sec. 9, Rule 116].
PAGE 296
UP LAW BOC
CRIMINAL PROCEDURE
MOTION TO QUASH AND DEMURRER DISTINGUISHED Motion to quash
EFFECTS OF SUSTAINING THE MOTION TO QUASH
Demurrer to evidence
Filed before entering plea
Filed after prosecution rested its case
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
FILING ANOTHER COMPLAINT/INFORMATION
the 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 [Sec. 23, Rule 119]
REMEDIAL LAW
General rule: Court may order that another complaint or information be filed [Sec. 5, Rule 117]. Exception: The court may not do so if MTQ was based on the following: (1) Criminal action or liability has been extinguished; (2) Double jeopardy.
DISCHARGE OF THE ACCUSED
General rule: If in custody, the accused shall not be discharged unless admitted to bail [Sec. 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.
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 [Sec. 4, Rule 117]. Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense. The prosecution may appeal from the order of quashal to the appellate court. 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 dismissal is made prior to arraignment and on MTQ [People v. Purisima (1978)]. PAGE 297
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Order granting MTQ
RULE OF DOUBLE JEOPARDY
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
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 [Sec. 3(i), Rule 117].
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
Order denying MTQ
KINDS OF DOUBLE JEOPARDY
(1) No person shall be put twice in jeopardy for the same offense; (2) 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 [Art. III, Sec. 21, Constitution]. SAME OFFENSE The offenses are penalized either by different Sec.s of the same law or by different statutes. The essential elements of each must be examined.
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)].
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)]. 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.
EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense [Sec. 6, Rule 117]. 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.
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)].
PAGE 298
Exceptions: (1) The graver offense developed due to supervening facts arising from the same 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.
UP LAW BOC
CRIMINAL PROCEDURE
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.
REMEDIAL LAW
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)].
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)].
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)]. 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).
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)].
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; (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)].
Dismissal
Acquittal
Does not decide the case on the merits. Does not determine innocence or guilt
Always based on the merits. Defendant’s guilt was not proven beyond reasonable doubt
Double jeopardy will not always attach
Double jeopardy always attaches
PROVISIONAL DISMISSAL DEFINITION
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.
However, a dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan (1986)].
PAGE 299
UP LAW BOC
CRIMINAL PROCEDURE
GROUNDS Sec. 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 Sec. 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 Sec. 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Sec. 8 obtain.
REMEDIAL LAW
(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.
WHEN DISMISSAL BECOMES PERMANENT (TIME BAR RULE)
(1) One year after issuance of the order without the case having been revived for offenses punishable: (a) By imprisonment not exceeding 6 years; (b) By fine of any amount; (c) By both [Sec. 8, Rule 117]; (2) Two years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 years.
Pre-Trial APPLICATION OF AFFIDAVIT RULE
The State may revive beyond the periods provided there is a justifiable necessity for the delay. The Court is not mandated to apply Sec. 8retroactively 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)]. 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 (Sec. 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;
PAGE 300
JUDICIAL
Under Sec. 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.
UP LAW BOC
CRIMINAL PROCEDURE
(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.
REMEDIAL LAW
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 03-1-09-SC].
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 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)].
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.
MARKING FOR IDENTIFICATION OF EVIDENCE
COVERAGE
The court shall order pre-trial in all criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC.
Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence.
PERIOD
WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED
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. Exception: A shorter period may be provided by special laws or SC circulars.
PLEA BARGAINING
THINGS CONSIDERED
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].
(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 [Sec. 1, Rule 118].
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)].
PAGE 301
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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); Sec. 7(c), Rule 117; see Sec. 2, Rule 116].
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)].
EFFECT WHEN THE PROSECUTION AND THE OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED
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 [Sec. 3, Rule 118].
NON-APPEARANCE PRE-TRIAL
The Court shall: (1) Issue an order which contains the plea bargaining arrived at; (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].
DURING
Ratio: This is to enforce the mandatory requirement of pre-trial in criminal cases [Sec. 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 pretrial.
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 Sec. 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 vs Santiago (1989)].
EFFECT
The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated.
PAGE 302
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
(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.
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 [Sec. 4, Rule 118]. Note: Nos. 4 to 6 are added by AM 03-1-09-SC to the requirements under Sec. 4, Rule 118.
Trial
EFFECT
INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW
(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. 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;
General rule: The presence of the accused during the trial may be waived. 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)].
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 pre-trial 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
Note: The presence of the accused is also required in the following cases: (1) At arraignment; [Sec. 1(b), Rule 116] (2) At the promulgation of judgment, unless the conviction is for a light offense [Sec. 6, Rule 120].
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 - his whereabouts are unknown or cannot be determined by due diligence.
PAGE 303
UP LAW BOC
CRIMINAL PROCEDURE
Unavailable - his whereabouts are known but presence for trial cannot be obtained by due diligence. Essential - 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 be excluded in computing the time within which trial must commence [Sec. 3, Rule 119].
REMEDIAL LAW
(3) His failure to appear is unjustified. Ratio: This is to speed up disposition of cases.
REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD EFFECT OF DELAY
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; (1) Knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial; or (2) Otherwise willfully fails to proceed to trial without justification consistent with the provisions of the Speedy Trial Act.
CONDITIONAL EXAMINATION
On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial [Sec. 9, Rule 119]. Factors to consider are: (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 Sec. 9, Rule 119.
BURDEN OF PROOF
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.
(1) The accused has the burden of proving the ground of denial of right to speedy trial for the motion. (2) The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Sec. 3, Rule 119. This is subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore.
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.
REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS
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 [Sec. 15, Rule 119].
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 [Sec. 17, Rule 119]. This applies only when the information has already been filed in court.
TRIAL IN ABSENTIA Requisites: (1) Accused has been arraigned; (2) He was duly notified of trial; PAGE 304
UP LAW BOC
CRIMINAL PROCEDURE
Thus, even the state witness is include as accused prior to discharge.
REMEDIAL LAW
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)].
REQUISITES
Two or more persons are jointly charged with the commission of any offense. (1) Upon motion of the prosecution before resting its case (2) Petition for discharge is filed before the defense has offered its evidence. [People v. Aniňon (1988)] (3) Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. (4) 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 [Sec. 17, Rule 119]. Note: The evidence adduced in support of the discharge shall automatically form part of the trial.
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 DEFINITION
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. 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
The order granting the demurrer is not appealable but may be reviewed via certiorari [Rule 65] [People v. Sandiganbayan, Marcos (2012)].
General rule: The order of discharge shall: (1) Amount to an acquittal of the discharged accused; (2) Bar future prosecutions for the same offense [Sec. 18, Rule 119].
Ratio: This is to prevent the filing of demurrer based on frivolous and flimsy grounds.
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.
PAGE 305
UP LAW BOC
CRIMINAL PROCEDURE
HOW INITIATED
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER DEMURRER IS DENIED
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 [Sec. 23, Rule 119].
MOTION FOR DEMURRER
LEAVE
TO
REMEDIAL LAW
Filed with leave of court May evidence defense
FILE
(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 [Sec. 23, Rule 119].
EFFECT GRANTING DEMURRER
The court dismisses the action on the ground of insufficiency of evidence [Sec. 23, Rule 119]. This amounts to acquittal of the accused. Sufficient evidence for frustrating a demurrer is evidence that proves: (1) Commission; and (2) 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 [Sec. 23, Rule 119]; (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)].
PAGE 306
Filed without leave of court
adduce in his
Waives the right to present evidence [Sec. 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: 1. The court may defer resolution until decision is rendered on the other accused 2. 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
UP LAW BOC
CRIMINAL PROCEDURE
Judgment
REMEDIAL LAW
(2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact; (3) The penalty imposed upon the accused; (4) The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it; (5) 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 [Sec. 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.
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 [Sec. 1, Rule 120].
PROOF BEYOND REASONABLE DOUBT It is that degree of proof which produces conviction in an unprejudiced mind [People v. Bacalzo (1991)]. 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 [Sec. 3, Rule 120], subject to the three-fold rule on the service of penalty.
There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed. Failure on the part of the TC to make a finding of fact is a revocable error.
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)].
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)].
CONTENTS OF JUDGEMENT
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.
IN CASE OF CONVICTION
The judgment of conviction shall state:
(1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission; PAGE 307
UP LAW BOC
CRIMINAL PROCEDURE
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 [Sec. 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.
REMEDIAL LAW
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, include rape and shall likewise refer to offenses committed with malice which resulted in death or serious physical and/or psychological injuries, permanent incapacity or disability, insanity, abortion, serious trauma, or committed with torture, cruelly or barbarity [Sec. 3, 7309].
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 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.
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 [Sec. 4, RA 7309].
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 [Sec. 5, Rule 120]. The effect is that the accused may be convicted of: (1) The offense proved which is included in the offense charged; or (2) The offense charged which is included in the offense proved [Sec. 4, Rule 120]. 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.
IN CASE OF ACQUITTAL Acquittal
Dismissal
Terminates the case Decision on the merits based on a finding that the accused is not guilty PAGE 308
Not on the merits but no finding that accused is not guilty
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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 (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.
General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal.
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.
PROMULGATION OF JUDGEMENT; INSTANCES OF PROMULGATION IN ABSENTIA
The judgment shall state whether: (1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or (2) It merely failed to prove his guilt beyond reasonable doubt.
PROMULGATION
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.
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)].
In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist [Sec. 2, Rule 120]. 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 judgment or sentence does not become a judgment or sentence in law until it is: (1) Read and announced to the defendant; or (2) Has become a part of the record of the court [US v. CFI of Manila (1913)].
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.
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.
The judge acquitting an accused cannot punish him at the same time.
PAGE 309
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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 of appeal and to approve the bail bond pending appeal [Sec. 6, Rule 120].
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 served in last known address [Sec. 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 [Sec. 6, Rule 120].
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 IN CERTAIN CIRCUMSTANCES
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.
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 [Sec. 6, Rule 120]. WHERE PRESENCE OF ACCUSED IS REQUIRED; EXCEPTIONS General rule: Presence of the accused is mandatory in the promulgation of judgment.
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.
Exception: Convictions for light offenses [Sec. 6, Rule 120]. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the Rules against the judgment and the court shall order his arrest.
Judgment also becomes final when judgment is an acquittal [People v. Sandiganbayan (2010)].
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.
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 [Sec. 7, Rule 120].
If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice [Sec. 6, Rule 120; People v. De Grano (2009)].
After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors.
PAGE 310
UP LAW BOC
CRIMINAL PROCEDURE
New Trial or Consideration
REMEDIAL LAW
REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED SPECIES
GROUNDS FOR NEW TRIAL
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)].
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. 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.
It must be of weighty influence and will affect the result of the trial [People v. Alfaro (2003)].
Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused.
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 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.
INTEREST OF JUSTICE AS GAUGE FOR INTRODUCTION OF NEW EVIDENCE
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)].
WHEN THERE IS VARIANCE IS 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.
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)].
GROUNDS FOR RECONSIDERATION
EFFECTS OF GRANTING NEW TRIAL OF RECONSIDERATION
The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings [Sec. 3, Rule 121].
IN ALL CASES
(1) The original judgment set aside or vacated; (2) A new judgment is rendered accordingly;
PAGE 311
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
OTHER EFFECTS Other specific effects (see table) also result when granted upon different grounds [Sec. 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.
The court will allow introduction of additional evidence in the interest of justice.
If error or irregularity goes into the jurisdiction, the entire proceeding is void and must be set aside. Newly-discovered evidence
IN CASE OF DISCRETION
GRAVE
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.
ABUSE
OF
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 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)].
The court will allow introduction of other such evidence in the interest of justice.
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.
PAGE 312
UP LAW BOC
CRIMINAL PROCEDURE
Appeal
REMEDIAL LAW
HOW APPEAL IS 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)].
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)].
WHO MAY APPEAL
General rule: Any party may appeal from a judgment or final order [Sec. 1, Rule 122]. Exceptions: (1) A party may not appeal if the accused will be placed in double jeopardy by such action [Sec. 1, Rule 122]; (2) If the judgment is for conviction and the accused fails to appear without justifiable cause, he would lose the remedy to appeal [Sec. 6, Rule 120].
WHERE TO APPEAL For cases decided by
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 14-A)
Sandiganbayan
RTC (if it involves questions of fact and of law)
CA
RTC (1) If it involves questions of law only (2) If it involves constitutionality or validity of any treaty/law/ordinance/ EO/ regulation or the jurisdiction of the inferior court (3) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment (4) 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
PROCEDURE IN LOWER COURTS When appeal to be taken. Within 15 days from promulgation of the judgment or from notice of the final order appealed from.
1
PAGE 313
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.
UP LAW BOC
CRIMINAL PROCEDURE
General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC.
REMEDIAL LAW
It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court’s notice that the evidence is already attached to the record [Sec. 3, Rule 124].
Exceptions: (1) Where a particular provision applies only to either of said courts; (2) Criminal cases governed by the Revised Rules on Summary Procedure [Sec. 1, Rule 123].
BRIEF FOR THE 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.
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)].
It shall be filed within 30 days from receipt of the appellant’s brief [Sec. 4, Rule 124]. 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 [Sec. 4, Rule 124].
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
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.
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)].
It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended [Sec. 5, Rule 124].
PROCEDURE IN THE COURT OF APPEALS
The court may grant as many extensions as may be asked [Gregorio v. CA (1976)].
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.”
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.
The title of the case shall remain as it was in the court of origin (i.e., People v. John Doe) [Sec. 1, Rule 124].
Mimeographed copies are not allowed [Sec. 6, 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.
CONTENT OF BRIEFS The briefs in criminal cases shall have the same contents as provided in Secs. 13 to 14, Rule 44 [Sec. 7, Rule 124].
PAGE 314
UP LAW BOC
CRIMINAL PROCEDURE
DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE (GROUNDS)
REMEDIAL LAW
(2) 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)]; (3) In case of automatic review [People v. Cornelio (1971)].
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: (1) If appellant has filed a MFR or motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason [Baradi v. People (1948)]; (2) 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)].
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 [Sec. 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 [Sec. 10, Rule 124]. When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings.
Appellant escapes, jumps bail, or flees The CA may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal [Sec. 8, Rule 124].
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 [Sec. 11, 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: (1) In one exceptional case, the appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured two hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal [People v. Valencia (1949)];
PAGE 315
UP LAW BOC
CRIMINAL PROCEDURE
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)].
REMEDIAL LAW
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: (a) It shall render and enter judgment imposing such penalty. (b) Appeal here is not automatic. The accused has to file a notice of appeal with the CA [Sec. 113, Rule 124].
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. CA’s trials and hearings must be continuous and completed within three months, unless extended by the Chief Justice [Sec. 12, Rule 124].
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 [Sec. 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.
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; (6) Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices [Sec. 11, BP 129].
MNT DURING THE PENDENCY OF APPEAL (1) Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: (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 Sec. 4, Rule 121 (Sec. 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 [Sec. 15, Rule 124]. PAGE 316
UP LAW BOC
CRIMINAL PROCEDURE
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.
MODES BY WHICH A CASE MAY REACH THE SC Automatic review Automatic review is not a matter of right on the part of the accused, but a matter of law.
General rule: No party shall be allowed a second MFR of a judgment or final order [Sec. 16, Rule 124; Sec. 11, BP 129].
It is available when: (1) The RTC judgment upon the accused imposes death penalty [Sec. 10, Rule 122]; (2) 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 [Sec. 13, Rule 124].
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.
Ordinary appeal It is available when: (1) 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 [Sec. 3, Rule 122]; (2) An accused was charged with two or more offenses committed on the same occasion 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 [Sec. 3, Rule 122]; (3) 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)].
APPLICABLE CIVIL PROCEDURE RULES Sec. 18, Rule 124. 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
PROCEDURE COURT
IN
THE
REMEDIAL LAW
SUPREME
UNIFORM PROCEDURE General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA [Sec. 1, Rule 125]. 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.
PAGE 317
UP LAW BOC
CRIMINAL PROCEDURE
Petition for review on certiorari It is available when: (1) The constitutionality or validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question; (2) 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)]; (3) When the jurisdiction of any inferior court is in issue; (4) When only an error or question of law is involved.
REMEDIAL LAW
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. REVIEW OF CA DECISIONS Sec. 2, Rule 125. The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases 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 and should dismiss appeal [Guico v. Mayuga (1963)].
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.
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)].
Exception: In the following cases, certiorari is granted despite existence of the remedy of appeal: (1) Where public welfare and advancement of public policy so dictate; (2) Where the broader interests of justice so require; (3) Where the orders complained of were found to be completely null and void; (4) Where appeal was not considered as the appropriate remedy. 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].
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.
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.
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 [Sec. 3, Rule 125]. PAGE 318
UP LAW BOC
CRIMINAL PROCEDURE
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 [Art. VIII, Sec. 4, Constitution].
The prosecution cannot judgment of acquittal
REMEDIAL LAW
appeal
from
a
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, an appeal therefrom by the prosecution would constitute double jeopardy [US v. Kilayko (1916)].
EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. (1) As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. (2) 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)].
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)]. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from [Sec. 11, Rule 122].
Search and Seizure 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 [Sec. 1, Rule 126].
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)].
If it is without the judge’s signature, it is fatally defective.
PAGE 319
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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.
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.
General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant.
It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused.
Exceptions: searches.
CONSTITUTIONAL SAFEGUARD
There
are
valid
warrantless
ARREST AND SEARCH WARRANTS DISTINGUISHED
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 [Art. III, Sec. 2, Constitution].
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 [Sec. 1, Rule 126]
Under the exclusionary rule, any evidence obtained in violation of this is inadmissible for any purpose in any proceeding [Art. III, Sec. 3, 2nd par. Constitution]. 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)].
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
The constitutional guarantee is not a blanket prohibition against all searches and seizures. It operates only against “unreasonable” searches and seizures.
The judge must personally examine the complainant and witnesses in the form of searching questions and answers [Sec. 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.
What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question [Rodriguez v. Villamiel (1937)]. 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)].
PAGE 320
UP LAW BOC
CRIMINAL PROCEDURE
Search warrant
(4) Violations of the Comprehensive Dangerous Drugs Act of 2000; (5) Violations of the Intellectual Property Code; (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.
Warrant of arrest Form
It must particularly describe the place to be searched and the things to be seized.
It must particularly describe the person to be arrested.
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 [Sec. 9, Rule 126]
May be made at any time of the day or night [Sec. 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 [Sec. 4, Rule 126].
Period of validity Valid for 10 days [Sec. 9, Rule 126]
REMEDIAL LAW
Does not expire (no terminal life)
APPLICATION FOR SEARCH WARRANT; WHERE FILED
ISSUANCE AND FORM OF SEARCH WARRANT
It may be filed in any court within whose territorial jurisdiction the crime was committed.
Sec. 6, Rule 126. 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 by these Rules
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.
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.
However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending [Sec. 2, Rule 126]. Under 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
PAGE 321
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
VALIDITY OF THE SEARCH WARRANT
SEARCH IN PRESENCE OF TWO WITNESSES
Sec. 10, Rule 126. The search warrant is valid for 10 days from its date. Thereafter, it shall be void
Sec. 8, Rule 126. 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
The lifetime of the search warrant also ends when a return has already been made [Mustang Lumber v. CA (1996)].
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 [Sec. 9, Rule 126].
SERVICE OF THE SEARCH WARRANT RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH Sec. 7, Rule 126. 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
A search warrant violates Sec. 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)].
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 [Sec. 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.
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. PAGE 322
UP LAW BOC
CRIMINAL PROCEDURE
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.
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.
If the return has been made, the judge shall ascertain whether Sec. 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.
PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES
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 [Sec. 12, Rule 126].
Aside from the requirements mandated by Sec. 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 [Sec. 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.
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 WARRANTS ISSUED PROBABLE CAUSE
REMEDIAL LAW
UPON
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)].
SEARCHING ANSWERS
QUESTIONS
AND
Searching questions are such questions which have the tendency to show the commission of a crime and the perpetrator thereof [Luna v. Plaza (1968)].
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.
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 (2) That the items will be found in the place to be searched [People v. Tuan (2010)].
The probable cause must refer only to one specific offense [Roan v. Gonzales (1986)]. Note: Probable cause to arrest does not necessarily involve a probable cause to search and vice-versa.
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)]. PAGE 323
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
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)].
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)]
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 [Art. III, Sec. 2, Constitution]. (1) 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)]. (2) 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)]. (3) Where the language used is too allembracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable [Columbia Pictures v. Flores (1993)].
A warrant not based on personal knowledge is void.
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.
Exceptions: (1) Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no search warrant could issue [People v. Rubio (1932)]. (2) 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)].
PARTICULARITY OF PLACE TO BE SEARCHED
Description of place to be searched is sufficient if the officer with the search warrant can, with reasonable efforts, ascertain and identify the place intended [People v. Veloso (1925)].
PAGE 324
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
decided on its own facts and circumstances [Nolasco v. Paño (1985)].
PERSONAL PROPERTY TO BE SEIZED
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)].
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 [Sec. 3, Rule 126].
CONSENTED SEARCH
Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that: (1) The right exists; (2) The person involved had knowledge, either actual or constructive, of the existence of such right; and (3) The said person had an actual intention to relinquish the right [People v. Nuevas (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
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)].
SEARCH INCIDENTAL TO LAWFUL ARREST
In a search incidental to an arrest, even without a warrant, the person arrested may be searched for: (1) Dangerous weapons; (2) Anything which may have been used in the commission of an offense; or (3) Anything which may constitute proof in the commission of the offense [Sec. 13, Rule 126].
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. 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.
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 have probable cause to make the arrest at the outset of the search [Riano (2011)].
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)].
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 PAGE 325
UP LAW BOC
CRIMINAL PROCEDURE
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.
(2) Evidence was inadvertently discovered by the police who have a right to be where they are; (3) Evidence must be immediately apparently illegal (i.e., drug paraphernalia); (4) Plain view justified mere seizure of evidence without further search [People v. Valdez (1999); People v. Salanguit (2001)]. Limitations: (1) It may not be used to launch unbridled searches and indiscriminate seizures. (2) It does not extend to a general exploratory search made solely to find evidence of defendant’s guilt [People v. Musa (1993)].
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)].
CHECKPOINTS; AIRPORTS
BODYCHECKS
REMEDIAL LAW
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.
IN
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)].
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 seized even if the item is not connected with their purpose in entering.
Routine inspections are not regarded as violative of an individual’s right against unreasonable search: (1) Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) Officer simply looks into a vehicle; (3) Officer flashes a light therein without opening car’s doors; (4) Occupants not subjected to a physical search; (5) Inspection is limited to usual search or inspection; or (6) Routine check is conducted in a fixed area [People v. CA (2002)].
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)].
PLAIN VIEW SITUATION
Requisites: (1) 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;
PAGE 326
UP LAW BOC
CRIMINAL PROCEDURE
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.
REMEDIAL LAW
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. 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)].
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)].
REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE
The Tariff Code authorizes customs officers to: (1) Enter, pass through or search any land, enclosure, warehouse; (2) Inspect/search/examine any vessel or aircraft and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law.
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)].
REMEDIES
General rule: The Tariff and Customs Code does not require a warrant for such searches.
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.
Exception: In the search of a dwelling house, a search warrant is required.
OTHER EXCEPTIONS
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)].
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)].
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. PAGE 327
UP LAW BOC
CRIMINAL PROCEDURE
Who may file (1) Person injured; (2) Person searched; (3) Owner of the property.
REMEDIAL LAW
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: If possession of the things seized is prohibited by law, they should not be returned. 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)).
Exception: Where the search is issued by one court and the criminal action based on the results of the search is afterwards filed in another court, the motion may be filed in either court [People v. CA (1999)]. 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)].
MOTION TO SUPRESS 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.
These may also be raised in the criminal action as matters of defense [DOH v. Sy Chi Siong (1989)].
CIVIL AND CRIMINAL LIABILITY
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 (2010)].
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]. 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.
The MTQ and Motion to Suppress Evidence are alternative, not cumulative remedies. 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.
PAGE 328
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
The judge may be held liable for: (1) Knowingly rendering an unjust interlocutory order; (2) Inexcusable negligence or ignorance.
Provisional Remedies
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].
Sec. 1, Rule 127. The 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
NATURE
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 may be applied for in the separate civil action. [Regalado (2010)] 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)).
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)].
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)].
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.
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.
KINDS OF PROVISIONAL REMEDIES IN GENERAL
Reference to provisional remedies in Sec. 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 provided for under the same rule.
is
Sec. 11(b), Rule 119. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case
PAGE 329
UP LAW BOC
CRIMINAL PROCEDURE
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 recovered from the accused in the following cases: (1) When the accused is about to abscond from the Philippines (2) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty (3) When the accused has concealed, removed or disposed of his property, or is about to do so (4) When the accused resides outside the Philippines [Sec. 2, Rule 127]. 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
PAGE 330
REMEDIAL LAW
UP LAW BOC
EVIDENCE
PAGE 331
REMEDIAL LAW
UP LAW BOC
EVIDENCE
General Principles
REMEDIAL LAW
EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES
CONCEPT OF EVIDENCE The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [Sec. 1, Rule 128]
SCOPE OF THE RULES OF EVIDENCE [SEC. 2, RULE 128]
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] Administrative investigations shall be conducted without necessarily adhering strictly 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)] 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]
In Civil Cases
In Criminal Cases
Preponderance of Proof beyond evidence [Sec. 1, Rule reasonable doubt [Sec. 133] 2, Rule 133] Offer of compromise NOT an admission of any liability [Sec. 27, Rule 130]
EXCEPT for quasioffenses 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]
Presumption of Presumption of innocence does NOT innocence a apply constitutional guarantee on the accused [sec. 14, Art. III]
PAGE 332
UP LAW BOC
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
Result or effect of Mode and manner of evidence [Regalado] proving competent facts in judicial proceedings [Bustos v. Lucero, G.R. No. L2068, October 20, 1948]
FACTUM PROBANS VERSUS FACTUM PROBANDUM Factum Probans Facts or evidencing proposition
Factum Probandum
material The proposition to be the established
The evidentiary fact The ultimate tending to prove the sought to fact in issue established
OTHER CLASSIFICATIONS CUMULATIVE AND CORROBORATIVE EVIDENCE Cumulative Evidence
PROOF VERSUS EVIDENCE Proof
REMEDIAL LAW
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]
Corroborative Evidence
Evidence of the same Additional evidence of kind and to the same a different character to state of facts the same point
PRIMA FACIE EVIDENCE
AND
CONCLUSIVE
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 EVIDENCE
AND
Primary Best Evidence That which the law regards as affording the greatest certainty of the fact in question
SECONDARY Secondary Substitutionary Evidence Inferior to primary; permitted only when the best evidence is not available
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] When determined: Admissibility is determined at the time the evidence is offered to the court [Sec. 35, Rule 132]
PAGE 333
UP LAW BOC
EVIDENCE
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] 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]
RELEVANCE OF EVIDENCE COLLATERAL MATTERS
AND
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]
PAGE 334
REMEDIAL LAW
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 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. 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] 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/quasijudicial/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.
UP LAW BOC
EVIDENCE
REMEDIAL LAW
DIRECT V. CIRCUMSTANTIAL Direct Evidence Circumstantial
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] 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. 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] 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] 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]
Proves the fact in Proof of a fact/s from dispute without the aid which, taken either of any inference or singly or collectively, presumption 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 that a Witness states he/she fact did or did not did not see or know of occur the occurrence of a fact COMPETENCE V. CREDIBILITY Competence Credibility Eligibility of evidence to Worthiness of belief; be received as such “believability”
BURDEN OF PROOF BURDEN OF EVIDENCE
AND
Burden of proof - 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] 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 a reasonable ground that the accused has committed an offense [Algas v. Garrido, A.M. No. 289-MJ, November 15, 1974]
PAGE 335
UP LAW BOC
EVIDENCE
To warrant the filing of an information - prima facie evidence To sustain a conviction - evidence of guilt beyond reasonable doubt.
THE BURDEN OF PROOF RESTS ON THE PROSECUTION. 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. Victoria A. Avena] 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 Proof
Burden of Evidence
Does not shift Shifts from party to throughout the trial party depending upon the exigencies of the case in the course of the trial Generally determined by Generally determined by the pleadings filed by the developments at the the party 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)
REMEDIAL LAW
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, G.R. No. 115625, January 23, 1998; Marubeni v. Lirag,G.R. No. 130998, August 10, 2001] 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]
PRESUMPTIONS 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: By his own declaration, act or omission; He intentionally and deliberately led another to believe a particular thing is true; To act upon such belief; and The litigation arises out of such declaration act or omission. (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. These conclusive presumptions are based upon the doctrine of estoppel in pais under the Civil Code. [Regalado]
PAGE 336
UP LAW BOC
EVIDENCE
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; (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
PAGE 337
(21) (22) (23)
(24) (25) (26) (27)
REMEDIAL LAW
was made before the instrument was overdue and at the place where the instrument is dated; A writing is truly dated; Letter duly directed and mailed was received in the regular course of the mail; 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 (iii) A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact; Things have happened according to the ordinary course of nature and ordinary nature habits of life; Persons acting as co-partners have entered into a contract of co-partnership; A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;
UP LAW BOC
EVIDENCE
(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 Born
Presumption
Before 180 days after the solemnization of the subsequent marriage
Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage
After 180 days following the celebration of the subsequent marriage
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;
PAGE 338
REMEDIAL LAW
(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: Situation
Person presumed to have survived
Both < 15 y/o
The older
Both > 60 y/o
The younger
One < 15 y/o, the other > 60 y/o
The one <15
Both > 15 and < 60 y/o, The male of different sexes Both > 15 and <60 y/o, The older of the same sex One < 15 or > 60 y/o, The one between those and the other between ages those ages (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.
UP LAW BOC
EVIDENCE
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]
LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE 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]
QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) PROOF DOUBT
BEYOND
REASONABLE
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] 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 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] 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]
PAGE 339
REMEDIAL LAW
PREPONDERANCE OF EVIDENCE Applicable quantum of evidence in civil cases [Sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMC-Urban Property Developer, Inc., G.R. No. 155110, March 31, 2005; Bank of the Philippine Islands v. Reyes, G.R. No. 157177, February 11, 2008] 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]
SUBSTANTIAL EVIDENCE Degree of evidence required in cases filed before administrative or quasi-judicial bodies. [Sec. 5, Rule 133] Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion [Sec. 5, Rule 133]
CLEAR AND CONVINCING EVIDENCE
The standard of proof required in granting or denying bail in extradition cases is “clear and convincing 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
UP LAW BOC
Judicial Notice Judicial Admissions
EVIDENCE
And
WHAT NEED NOT BE PROVED (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions
REMEDIAL LAW
DISCRETIONARY (1) Matters of public knowledge; (2) Matters capable of unquestionable demonstration; and (3) Matters ought to be known to judges because of their judicial functions. [Sec. 2, Rule 129]
REQUISITES:
JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them. Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. 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]
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] 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)]
PAGE 340
For the court to take judicial notice, three material requisites should be present: (1) The matter must be one of common and general knowledge; (2) It must be well and authoritatively settled and not doubtful or uncertain; (3) 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] 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)]
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 Note: 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]
UP LAW BOC
EVIDENCE
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]
WITH RESPECT TO RECORDS OF OTHER CASES 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)] 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]
WITH RESPECT TO ORDINANCES Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit. Regional Trial Courts must take judicial notice of such ordinances only: (1) 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
PAGE 341
REMEDIAL LAW
(2) 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] Note: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It is either (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. [Riano]
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] Judicial admissions may be— Made in: Pleadings filed by the parties (including admissions made in pleadings which are withdrawn/superseded by an amended pleading [Regalado]) Stipulations of facts by the parties in a pretrial conference [People v. Hernandez, G.R. No. 108028, July 30, 1996] The course of the trial either by verbal or written manifestations/stipulations Other stages of judicial proceedings Obtained through: Depositions Written interrogatories Request for admissions [Regalado; See also Civil Procedure Rules]
UP LAW BOC
EVIDENCE
There are averments made in pleadings which are not deemed admissions even if the adverse party fails to make a specific denial of the same like immaterial allegations (Sec. 11, Rule 8), conclusions, 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]
EFFECT OF JUDICIAL ADMISSIONS
(1) It does NOT require proof. [Sec. 4, Rule 129] (2) 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]. 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]
PAGE 342
REMEDIAL LAW
This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party. [Phil. Health Care Providers v. Estrada, G.R. No. 171052, January 28, 2008 citing Atillo, III v. CA, 1997]
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, November 24, 1988] Written foreign law may be proved by: (1) An official publication; or (2) A duly attested and authenticated copy.
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] 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
UP LAW BOC
EVIDENCE
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 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. 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)]
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]
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 municipality or city wherein they sit. [US v. Blanco (37 Phil 126 November 9, 1917)]
PAGE 343
REMEDIAL LAW
However, in the case of the RTC, they must take such judicial notice only (1) 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] (2) 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]
Object (Real) Evidence 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]
REQUISITES FOR ADMISSIBILITY 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 (4) Object must be formally offered [Sec. 34, Rule 132]
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
UP LAW BOC
EVIDENCE
(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)]
RELEVANT
REMEDIAL LAW
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
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]
Non-Unique Objects Objects with no identifying marks and cannot be marked, e.g., narcotic substances
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
DEMONSTRATIVE EVIDENCE
COMPETENT
EVIDENCE BE AUTHENTICATED To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. AUTHENTICATION 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. 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]
CATEGORIES OF OBJECT EVIDENCE THE “THING ITSELF”
Unique Objects Objects that have readily identifiable marks, e.g., a caliber 45 pistol by virtue of its serial number
PAGE 344
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 (a) by the person who made the recording, or (b) by some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, Rules on Electronic Evidence]
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]
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] 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].
UP LAW BOC
EVIDENCE
VIEW OF AN OBJECT OR SCENE 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] 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]
CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 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)]
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]
PAGE 345
REMEDIAL LAW
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] 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)]
RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC) 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;
UP LAW BOC
EVIDENCE
(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 (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] 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]
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]
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] Exception: If continued detention is justified for a lawful cause. [Sec. 10]
PAGE 346
REMEDIAL LAW
FACTORS IN ASSESSING PROBATIVE VALUE OF EVIDENCE
THE DNA
(1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination (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 (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 (4) Reliability of the testing result [Sec. 7]
VALLEJO STANDARD
In assessing the probative value of DNA evidence, courts should consider the following: (1) How the samples were collected (2) How they were handled (3) The possibility of contamination of the samples (4) The procedure followed in analyzing the samples, whether the proper standards and procedures were followed (5) Qualification of the analyst who conducted the tests [People v. Vallejo (May 9, 2002)]
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
UP LAW BOC
EVIDENCE
(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]
Documentary Evidence MEANING OF DOCUMENTARY EVIDENCE 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] 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.
REMEDIAL LAW
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 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]
SECONDARY EVIDENCE [IN ORDER]
(1) Copy (2) Recital of contents in some authentic document (3) Testimony of witnesses [Rule 130, Sec. 5]
REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE (EXCEPTIONS TO BER) [RULE 130,
REQUISITES FOR ADMISSIBILITY (1) Relevant (2) Competent (a) Document be Authenticated (b) Authenticated by Competent Witness (3) Formally Offered in Evidence [Riano]
SEC. 3]
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]
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)]
PAGE 347
(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 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 (G.R. No. 83377 February 9, 1993)] Due execution of the document should be proved through the testimony of either: (1) the person or persons who executed it; (2) the person before whom its execution was acknowledged; or
UP LAW BOC
EVIDENCE
(3) 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)]
RULES ON ELECTRONIC EVIDENCE [A.M. NO. 01-7-01-
REMEDIAL LAW
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. [Sec. 1(g), REE]
FACTORS IN ASSESSING EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE [RULE 7,
SC]
SEC. 1]
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.
PAGE 348
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;
UP LAW BOC
EVIDENCE
(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] (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. 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-0520-P September 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]
PAGE 349
REMEDIAL LAW
(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 (R5, SS1-3; R11, SS1-2, 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] 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] 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. 1and 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
UP LAW BOC
EVIDENCE
(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
ELECTRONIC DOCUMENTS AND THE HEARSAY RULE BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE 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. 1b] 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] 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]
PAGE 350
REMEDIAL LAW
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 some other person competent to testify on the accuracy thereof [Rule 11, Sec.1] 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] 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.
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)]
UP LAW BOC
EVIDENCE
WHEN PAROL EVIDENCE CAN BE INTRODUCED
(a) When a party presents parol evidence to
modify, explain or add to the terms of a written agreement AND (b) Ground/s for presenting parol evidence is put in issue in the pleading
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 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)] Imperfectionincludes inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions [Regalado] (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 SyChiam (G.R. No. 26085 August 12, 1927] (3) Validity of the written agreement Parol Evidence may be admitted to show: True consideration of a contract Want/Illegality of consideration Incapacity of parties Fictitious/simulated contract 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. Re Collateral Agreements: 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
PAGE 351
REMEDIAL LAW
(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]
DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE [REGALADO] Best Evidence Rule
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 Prohibits the Prohibits the varying of introduction of the terms of a written substitutionary agreement evidence in lieu of the original document regardless of WON it varies the contents of the original 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
Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby
AUTHENTICATION AND PROOF OF DOCUMENTS MEANING OF AUTHENTICATION The preliminary step in showing the admissibility of evidence Proving that the objects and documents presented in evidence are not counterfeit
UP LAW BOC
EVIDENCE
PUBLIC AND PRIVATE DOCUMENTS 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 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] 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 When evidence of authenticity of a private writing is not required Ancient Documents – authentication NOT necessary provided that private document be: (a) More than 30 years old; (b) Produced from a custody in which it would naturally be found if genuine; and (c) Unblemished by any alterations or circumstances of suspicion. [Rule 132, sec. 21] Other instances when authentication is not required: (1) Writing is a public document/record [Rule 132, Sec. 19]
PAGE 352
REMEDIAL LAW
(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] 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] PUBLIC DOCUMENTS Kinds of public documents (1) Written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country (2) Public records, kept in the Philippines, of private documents required by law to be entered therein (3) Notarial documents (except last wills and testaments) [Rule 132, Sec. 19] Proof of public documents Records of Official Acts [Rule 132, sec. 24] (1) By an official publication thereof; or (2) By an attested copy of the document 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)]
UP LAW BOC
EVIDENCE
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 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] 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] Note: Please refer to “Attestation of Copy” under Sec. 25, Rule 132. 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
PAGE 353
REMEDIAL LAW
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 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 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] 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 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. 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. Parties or their attorneys are directed to have the translation prepared before trial.
UP LAW BOC
EVIDENCE
Testimonial Evidence
REMEDIAL LAW
IN CASE PERSON IS CONVICTED OF A CRIME
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]
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. 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.
QUALIFICATIONS OF A WITNESS ACCORDING TO 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]
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. With respect to children of tender years, competence at the time of the occurrence is also taken into account.
PAGE 354
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: (1) Falsification of documents, (2) Perjury; or (3) False testimony
COMPETENCY VERSUS CREDIBILITY COMPETENCY
OF
[HERRERA, PG. 282]
A
WITNESS
One is qualified to take the witness stand if: (1) He is capable of perceiving at the time of the occurrence of the fact; and (2) He came make his perception known Competency
Credibility
A matter of law and of Has nothing to do with rules the law or rules 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]
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]
UP LAW BOC
EVIDENCE
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.
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]
INCOMPETENCE FROM PRIVILEGE
DISTINGUISHED
Incompetency disqualifies a witness. Privilege excuses him from testifying. [Herrera, pg. 281]
DISQUALIFICATIONS OF WITNESSES EFFECT IF WITNESS HAS INTEREST IN THE SUBJECT MATTER
[REGALADO]
A person is not disqualified (except if covered by the Dead Man’s statute) 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
BY REASON OF MENTAL CAPACITY OR IMMATURITY BY REASON OF MENTAL INCAPACITY
[RULE 130, SEC. 21(A)]
Requisites: (1) Person must be incapable of intelligently making known his perception to others (2) His incapability must exist at the time of his production for examination [Riano]
PAGE 355
REMEDIAL LAW
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]
WHEN INCAPACITY IS DETERMINED
Incapacity must occur at the time the witness perceives the event.
PRESUMPTION
[HERRERA, PG. 285]
OF
SANITY
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)] 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)]
UNSOUND MIND Includes any mental aberration (organic/functional), induced by drugs/ hypnosis Not disqualified as long as the witness can convey ideas by words/signs
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 Ideas with respect thereto. [People v. Hayag (G.R. No. L-38635 November 17, 1980)] 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 (G.R. No. L38635 November 17, 1980)]
UP LAW BOC
EVIDENCE
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)]
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, pg. 302] 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. 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 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. WAIVER OF MARITAL DISQUALIFICATION If a spouse imputed the conviction to the other. SPOUSES AS CO-ACCUSED The other cannot be called as an adverse party witness under this Rule.
PAGE 356
REMEDIAL LAW
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, pg. 306] Duration The privilege lasts only during the marriage and terminates upon divorce or annulment or death. [Herrera, pg. 307]
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 deceased person or before such person became of unsound mind. 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. 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.
UP LAW BOC
EVIDENCE
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] 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. L-29512 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 (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
BY REASON OF PRIVILEGED COMMUNICATIONS
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, pg. 315]
PAGE 357
REMEDIAL LAW
HUSBAND AND WIFE (MARITAL PRIVILEGE)
[SEC. 24(A), RULE 130]
Rationale: Confidential nature of the privilege; to preserve marital and domestic relations. 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)] Scope: “Any Communication” Includes utterances, either oral or written, or acts. [Herrera, pg. 318] 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. 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.
UP LAW BOC
EVIDENCE
IN CONTRAST TO MARITAL DISQUALIFICATION Marital Disqualification Marital Privilege [Sec. [Sec. 22] 24 (a)] One spouse should be Neither of the spouses a party to the case; needs to be a party; Applies only if the Does not cease even marriage is existing at after the marriage is the time the testimony dissolved; and is offered; and Constitutes a total prohibition on any testimony for or against the spouse of the witness.
Prohibition is limited to testimony on confidential communications between spouses.
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. 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. SUBJECT-MATTER
OF
[HERRERA PG. 329-337]
THE
PRIVILEGE
(1) Communications (2) Observations by the lawyer (regardless of
medium of transmission which may include oral or written words and actions) (3) Tangible evidence delivered to a lawyer (4) Documents entrusted to a lawyer
PAGE 358
REMEDIAL LAW
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 (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. 11543941 July 16, 1997)] (7) When there is a controversy between the client and attorney [Herrera, pg. 335] Identity Of Client General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. 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. 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]
UP LAW BOC
EVIDENCE
PHYSICIAN AND PATIENT [SEC. 24(C), RULE
130]
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; (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.
REMEDIAL LAW
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 (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) Professional capacity (defined) When the doctor attends to a patient for curative treatment, or for palliative or preventive treatment. [Herrera, pg. 343]
Physician-patient relationship need not be entered into voluntarily.
Extent of rule The privilege extends to communications which have been addressed to physician’s assistants or agents. [Herrera, pg. 345]
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
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]
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)] Waiver Express waiver – may only be done by the patient.
PAGE 359
Autopsical information If the information was not acquired by the physician in confidence, he may be allowed to testify thereto. But if the physician performing the autopsy was also the deceased’s physician, he cannot be permitted either directly or indirectly to disclose facts that came to his knowledge while treating the living patient. [Herrera citing US Case Travelers’ Insurance Co. v. Bergeron)] Duration of privilege The privilege continues until the death of the patient. It may be waived by the personal representative of the decedent. [Herrera, pg. 356]
UP LAW BOC
EVIDENCE
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. The priest or minister must be duly ordained in the sect in which he belongs.
REMEDIAL LAW
Exception: Court/House/Committee in Congress finds that such revelation is demanded by security of the State INFORMATION IN CONCILIATION PROCEEDINGS All information and statements made at conciliation proceedings shall be treated as privileged communications [Article 233, Labor Code]
PUBLIC OFFICERS [SEC. 24(E), RULE 130] Requisites: (1) Communication was made to the public officer in official confidence; and (2) Public interest would suffer by the disclosure of such communication.
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]
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)]
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]
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)]
OTHER PRIVILEGED COMMUNICATION NOT IN THE ROC NEWSMAN’S
PRIVILEGE
AMENDED BY RA 1477]
[RA
53,
AS
General Rule: Publisher, editor or duly accredited reporter cannot be compelled to reveal the source of any news report or information related in confidence
PAGE 360
TRIPS AGREEMENT Undisclosed information or trade secrets are considered privileged communication. 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 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] 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]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
PARENTAL AND FILIAL PRIVILEGE RULE
ONE-DAY EXAMINATION OF WITNESS RULE
General Rule: A person cannot be compelled to testify against his parents (parental privilege), other direct ascendants, children or other direct descendants (filial privilege).
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.
[SEC. 25, RULE 130]
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. Applicability The rule is applied to both civil and criminal cases. [Herrera, pg. 364]
EXAMINATION OF A WITNESS RIGHTS AND OBLIGATIONS OF A WITNESS [SEC. 3, RULE 132] OBLIGATION OF A WITNESS To answer questions, although his answer may tend to establish a claim against him. RIGHTS OF A WITNESS (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.
PAGE 361
[AM 03-1-09-SC] [2009 BAR]
ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS
DIRECT EXAMINATION [RULE 132, SEC. 5] Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue. The purpose is to elicit facts about the client’s cause of action or defense. CROSS EXAMINATION [RULE 132, SEC. 6] 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)] The right to cross-examine under the constitution is superior to technical rules on evidence. [Herrera, pg. 176 citing People v. Valero (1982)] 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]
UP LAW BOC
EVIDENCE
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 crossexamine. [Herrera, pg. 175] Cross-examination must be completed or finished. When cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. [Herrera, pg. 176 citing Ortigas, Jr. v. Lufthansa German Airlines (1975)]
REMEDIAL LAW
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.
RE-DIRECT EXAMINATION [RULE 132, SEC.
Leading questions General Rule: Leading questions are not allowed.
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 cross-examination.
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]
7]
Matters covered Those stated in the cross-examination, and matters not dealt with, if allowed by the Court RE-CROSS EXAMINATION [RULE 132, SEC.
8]
Examination conducted by adverse party upon conclusion of the re-direct examination. 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. 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)]
PAGE 362
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. Misleading questions Questions containing facts not in evidence. [Herrera, pg. 207] Methods of Impeachment of Adverse Party’s Witness [Sec. 11, Rule 132] (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.
UP LAW BOC
EVIDENCE
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.
JUDICIAL AFFIDAVIT RULE [AM 12-8-
8-SC]
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 authorized by the SC to receive evidence, including the IBP [Sec. 1] SUBMISSION OF JUDICIAL AFFIDAVITS AND EXHIBITS IN LIEU OF DIRECT TESTIMONIES (a) 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: (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and
PAGE 363
REMEDIAL LAW
(2) The
parties' documentary or object evidence, if any, shall be marked and attached to the judicial affidavits (b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. [Sec. 2] 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: (a) The name, age, residence or business address, and occupation of the witness; (b) 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; (c) 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; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached documentary and object evidence and establish their authenticity; (e) The signature of the witness over his printed name; and
UP LAW BOC
EVIDENCE
(f) 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. 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] A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. [Section 4] 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. 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.
REMEDIAL LAW
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. 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 cross-examine 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, 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 ducestecum 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.
ADMISSIONS AND CONFESSIONS RES INTER ALIOSACTA 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]
First branch With Respect to Admissions by a “Third-Party” General Rule: Admission by a third party is inadmissible
PAGE 364
UP LAW BOC
EVIDENCE
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. 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. 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
REMEDIAL LAW
RATIONALE No man would make any declaration against himself unless it is true. [Republic v. Bautista (G.R. No. 169801 September 11, 2007)] AS DISTINGUISHED ADMISSIONS Judicial
FROM
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
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
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] EFFECT It may be given in evidence against the admitter. [sec. 26, Rule 130] Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala (G.R. No. L-12988 January 24, 1918)] 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)]
PAGE 365
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.
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 subjectmatter 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)].
UP LAW BOC
EVIDENCE
A mere community of interests between several persons is not sufficient to make the admissions of one admissible against all. [Herrera, pg. 402] 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. 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]
PAGE 366
REMEDIAL LAW
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 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 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. 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] 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)]
UP LAW BOC
EVIDENCE
FORMER OWNER OF REAL ESTATE It is necessary that the admission of the former owner of a property has been made while he 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 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]
CONFESSIONS
REMEDIAL LAW
(5) No violation of Secs. 12 and 17, Art. III of the Constitution [Regalado] 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)] 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] 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
A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [Sec. 33, Rule 130] 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 (4) Intelligently made, realizing the importance or legal significance of the act
PAGE 367
Confession
Merely a statement of Acknowledgment fact guilt or liability
of
Maybe express or tacit Must be express Maybe made by 3rd parties, and in certain cases, admissible against a party
Can be made only by the party himself, and admissible against his co-accused in some instances
Acts, declarations or Declarations omissions May be proceeding
in
any Criminal case
UP LAW BOC
EVIDENCE
SIMILAR ACTS AS EVIDENCE
REMEDIAL LAW
MEANING OF HEARSAY
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] 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] 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]
HEARSAY RULE 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)] 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)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng Manggagawang Pilipino (G.R. No. L-38964 January 31, 1975)]
PAGE 368
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.]
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)] 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)] 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)]
UP LAW BOC
REASON FOR EXCLUSION HEARSAY EVIDENCE
EVIDENCE
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]
EXCEPTIONS TO THE HEARSAY RULE
(1) Dying declaration (2) Declaration against interest (3) Act or declaration about pedigree (4) 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
DYING DECLARATION
Also known as “antemortem statement” or “statement in articulo mortis” [Sec. 37, Rule 130] 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)]
PAGE 369
REMEDIAL LAW
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)] 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] 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)] 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] 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)]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
AS DISTINGUISHED FROM ADMISSIONS
DECLARATION AGAINST INTEREST
[ESTRADA V. DESIERTO (APRIL 3, 2001)]
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] 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)] Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons [Sec. 38, 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]
PAGE 370
Admission by a party (Rule 130.26)
Declaration against Interest (Rule 130.38)
Admitter is a party Declarant is neither a himself, or in privity party nor in privity with with such party; a party; Admissible whether or Admissible only when not admitter is declarant is available as a witness unavailable as a witness; Can be made any time, Must have been made even during trial; ante litem motam; Admissible only Admissible even against the admitter; against 3rd persons; and and Admissible not as an Admissible as exception to any rule exception to hearsay rule
an the
Made against one’s Made against one’s claim or defense, pecuniary or moral although not moral or interest pecuniary interest Primary evidence
Secondary evidence
ACT OR DECLARATION PEDIGREE
ABOUT
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]
UP LAW BOC
EVIDENCE
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] “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, 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)] 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]
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]
PAGE 371
REMEDIAL LAW
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] 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)] 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)] Distinguished from Declaration about Pedigree [Herrera, pp. 662-663] Sec. 39 – Declaration Sec. 40 – Family about Pedigree Reputation or Tradition There must be declarant and witness
a The witness testifying a to the family reputation and tradition must be a The witness need not member of the family be a relative of the member of the person person whose pedigree whose pedigree is in is in question, it must controversy. be the declarant.
Independent evidence is needed to establish relationship between declarant and person whose pedigree is in issue
The witness may testify on the relationship between such relationship himself. The author of the reputation need not be established by independent evidence.
COMMON REPUTATION 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]
UP LAW BOC
EVIDENCE
OTHER ADMISSIBLE EVIDENCE (1) Monuments (2) Inscriptions in public places [sec. 41, Rule 130]
REMEDIAL LAW
(c) Statement refer to occurrence in question
Pedigree may be established by reputation in the family, but not in the community. [Rule 130, Secs. 40-41] 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] 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)] 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. [n re: Florencio Mallare (supra)]
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] 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)]
PAGE 372
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)] (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 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]
ENTRIES IN BUSINESS
THE
COURSE
OF
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)]
UP LAW BOC
EVIDENCE
If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [CangYui v. Gardner (1916)] “Business records” are exempt from the hearsay rule. [Rule 8, sec. 1, Rules on Electronic Evidence] Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity [Sapio v. Undaloc Construction (2008)] REASON FOR RULE The duty of the employees to communicate facts is of itself a badge of trustworthiness of the entries [Security Bank and Trust Company v. Gan (2006)] These entries are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. [LBP v. Monet’s Export and Manufacturing Corp. (2010)]
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. 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] 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)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (G.R. No. L-22378 June 29, 1968)]
PAGE 373
REMEDIAL LAW
COMMERCIAL LISTS AND THE LIKE 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. 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]
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
TESTIMONY OR DEPOSITION AT A FORMER TRIAL 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;
UP LAW BOC
EVIDENCE
(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. 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)]
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 [Rule 130, sec. 50] 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. 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)] 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]
PAGE 374
REMEDIAL LAW
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] 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] 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 be opposed on the ground that it is misleading. [Herrera, pg. 798] 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)] 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.
UP LAW BOC
EVIDENCE
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] 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)] HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY The ordinary witness must be acquainted with the characteristics of the handwriting of a person. He may only draw on the knowledge which he already has and which enables him to recognize the handwriting. Only experts are allowed to give conclusions from the comparison of samples of handwriting of a person whose handwriting he is not familiar with. [Herrera, 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] 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]
PAGE 375
REMEDIAL LAW
CHARACTER EVIDENCE General Rule [Sec. 51, Rule 130]: Character evidence is not admissible. 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. CHARACTER EVIDENCE (DEFINITION) The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one’s distinguishing attributes. [Herrera citing Black’s Law Dictionary, pg. 834] CHARACTER DISTINGUISHED FROM REPUTATION Character is what a man is and depends on attributes he possesses. It signifies reality. 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] 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. 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]
UP LAW BOC
EVIDENCE
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 selfdefense. 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] CIVIL CASES 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]
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: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse part. When the child is unavailable, the fact of
PAGE 376
REMEDIAL LAW
such circumstance must be proved by the proponent. (b) 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: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declaration child; (7) The possibility of faulty recollection of the declarant of child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.
APPLICABILITY OF THE RULE Shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. [Sec. 1] The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]
UP LAW BOC
MEANING
[SEC. 4 (A)]
EVIDENCE
OF
“CHILD
WITNESS”
(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.
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. 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)] EXAMINATION OF A CHILD WITNESS (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]
PAGE 377
REMEDIAL LAW
(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. 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. The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony. 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. 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 cross-examine the child, shall not be violated during the deposition.
UP LAW BOC
EVIDENCE
ADMISSIBILITY OF VIDEOTAPED AND AUDIOTAPED IN-DEPTH INVESTIGATIVE OR DISCLOSURE INTERVIEWS IN CHILD ABUSE CASES [SEC. 29] Requisites for admissibility: (a) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c) which are: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) 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; (3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved.
PAGE 378
REMEDIAL LAW
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. 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. HEARSAY EXCEPTION IN CHILD ABUSE CASES [SEC. 28] 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. 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. 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)]
UP LAW BOC
EVIDENCE
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 child, shall be liable for contempt of court. [Sec. 31(d)] 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)]
REMEDIAL LAW
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 the testimony, the court must consider the testimony. 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)]
WHEN FORMAL REQUIRED
Offer and Objection 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
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)]
PAGE 379
OFFER
IS
NOT
(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]
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.”
UP LAW BOC
EVIDENCE
WHEN TO MAKE AN OFFER
[SEC. 35, RULE 132] Kind of evidence Testimonial
When to offer At the time the witness is called to testify
Documentary After the presentation of a party’s and Object testimonial evidence 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)] The defendant cannot offer his evidence before the plaintiff has rested. [Herrera citing Engersail v. Malabon Sugar Co., 53 Phil. 7450]
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 grounds in the course of oral become reasonably examination apparent
REMEDIAL LAW
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]
PURPOSES OF OBJECTION [RIANO]
(1) Made to keep out inadmissible evidence that would cause harm to client’s cause (rules of evidence are not self-operating) (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 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] 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]
FORMAL V. SUBSTANTIVE OBJECTIONS [RIANO]
Within 3 days after notice of the offer, unless a different period is allowed by the court
Formal – one directed against the alleged defect in the formulation of the question
The grounds for objection must be specified in any case.
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]
Offer done in writing
PAGE 380
Substantive – objections made and directed against the very nature of the evidence
UP LAW BOC
EVIDENCE
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]
REPETITION OF AN OBJECTION
[SEC. 37, RULE 132]
A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship (G.R. No. L-12308 August 28, 1918)] 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)]
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. 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)]
POR LO QUEPUEDOVALER PRINCIPLE The Supreme Court encourages the admission or borderline evidence for whatever it is worth or por lo quepuedovaler. [Prats & Co. v. Phoenix Insurance (52 Phil. 807 February 25, 1930)]
REMEDIAL LAW
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]
STRIKING OUT AN ANSWER
[SEC. 39, RULE 132] 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.
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 destroyed by other evidence, or its admissibility has afterward become apparent; [Herrera, pg. 340] 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]
PAGE 381
UP LAW BOC
EVIDENCE
HARMLESS ERROR RULE [PEOPLE V.
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)]
HOW TO TENDER EVIDENCE Kind of evidence
How to tender the 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
Rationale (a) 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 (b) even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal [Riano]
TWO METHODS OF MAKING THE TENDER: [RIANO]
(a) Where the counsel tells the court what the proposed testimony would be; (b) By using the question and answer form
ERRONEOUS TENDER
WAY
OF
REMEDIAL LAW
MAKING
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] 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. L30351 September 11, 1974)]
PAGE 382
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.
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
PAGE 383
REMEDIAL LAW
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
Scope and Applicability of the Rule 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) (2) (3) (4) (5) (6) (7) (8)
(9)
(10) (11) (12) (13)
(14) (15) (16) (17)
Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; P.D. No. 705, Revised Forestry Code; P.D. No. 856, Sanitation Code; P.D. No. 979, Marine Pollution Decree; P.D. No. 1067, Water Code; P.D. No. 1151, Philippine Environmental Policy of 1977; P.D. No. 1433, Plant Quarantine Law of 1978; P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; 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; R.A. No. 4850, Laguna Lake Development Authority Act; R.A. No. 6969, Toxic Substances and Hazardous Waste Act; R.A. No. 7076, People’s Small-Scale Mining Act; R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; R.A. No. 7611, Strategic Environmental Plan for Palawan Act; R.A. No. 7942, Philippine Mining Act; R.A. No. 8371, Indigenous Peoples Rights Act; R.A. No. 8550, Philippine Fisheries Code;
PAGE 384
REMEDIAL LAW
(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]
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
Civil Procedure
REMEDIAL LAW
PROCEDURE
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] 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 (15) 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. No. 8749 [Clean Air Act] and R.A. No. 9003 [Ecological Solid Waste Management Act] shall be governed by their respective provisions. [Rule 2, Sec. 5]
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
PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Preliminary Conference
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. 1]) Where the issuance of a TEPO is premised on the violation of an environmental law or a threatened damage or injury to theenvironment by any person, even the government and its agencies,the prohibition against the issuance of a TRO or preliminary injunctionis premised on the presumption of regularity on the government andits agencies in enforcing environmental laws and protecting theenvironment. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]
PAGE 385
Pre-trial Conference/s Pre-trial Order Continuous Trial Judgment and Execution
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO)
REMEDIAL LAW
PRE-TRIAL CONFERENCE; CONSENT DECREE
GROUND FOR ISSUANCE
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]
PERIOD OF EFFECTIVITY
Seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined[Rule 2, Sec. 8]
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] 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 (10) days from the action taken. [Rule 2, Sec. 11]
GROUND TO DISSOLVE TEPO
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]
DECLARATION OF DEFAULT MOTU PROPRIO Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for. [Rule 2, Sec. 15]
PAGE 386
The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. 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. Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. [Rule 3, Sec.5] 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]]
PROHIBITED PLEADINGS AND MOTIONS The following pleadings or motions shall not be allowed: (1) Motion to dismiss the complaint; (2) Motion for a bill of particulars; (3) Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; (4) Motion to declare the defendant in default; (5) Reply and rejoinder; and (6) Third party complaint. [Rule 2, Sec. 2]
PERIOD TO TRY AND DECIDE The court shall have a period of one (1) year from the filing of the complaint to try and decide the case. Before the expiration of the one-year period, the court may petition the Supreme Court for the extension of the period for justifiable cause. The court shall prioritize the adjudication of environmental cases. [Rule 4, Sec. 5]
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN SUIT 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 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]
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]
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]
PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS
In the judgment, the court may— (1) convert the TEPO to a permanent EPO OR (2) 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]
PAGE 387
REMEDIAL LAW
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, 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]
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] 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 person from bringing a valid environmental complaint before the court. 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)
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
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]
QUANTUM OF EVIDENCE Party asserting that claim is a SLAPP must prove such with substantial evidence. If the court finds aSLAPP 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 (3) with preponderance of evidence. [Rule 6, Sec.3]
RESOLUTION OF THE DEFENSE OF A SLAPP If action is dismissed, dismissal is with prejudice 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]
Special Civil Actions WRIT OF KALIKASAN 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.
PAGE 388
REMEDIAL LAW
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] 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] Procedure 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
PROHIBITED PLEADINGS AND MOTIONS The following pleadings and motions are prohibited: (1) Motion to dismiss; (2) Motion for extension of time to file return; (3) Motion for postponement; (4) Motion for a bill of particulars; (5) Counterclaim or cross-claim; (6) Third-party complaint; (7) Reply; and (8) Motion to declare respondent in default. [Rule 7, Sec. 9]
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
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.
OCULAR INSPECTION Purpose is to order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting orphotographing the property or any relevant object or operation thereon.
PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS
Purpose is 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.
APPEAL
Within fifteen (15) 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]
REMEDIAL LAW
WRIT OF CONTINUING MANDAMUS 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]
WHERE TO FILE
(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]
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
PAGE 389
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
REMEDIAL LAW
DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING MANDAMUS Kalikasan
Continuing Mandamus
Subject Matter
Available against an 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.
Directed against (a) the unlawful neglect in the performance of an act specifically enjoined by law in connection with the enforcement/violation of an envt’l rule or (b) the unlawfully exclusion of another from the use or enjoyment of such right and in both instances, 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 behalf of persons whose right to a balanced and healthful ecology is violated or threatened to be violated
Person personally aggrieved by the unlawful act or omission
Respondent
May be public or private individual or entity
Government or its officers
Docket Fees
Exempted
Exempted
Venue
SC or CA
(1) RTC exercising territorial jurisdiction, (2) CA, (3) SC
Ocular Inspection and Production or Inspection Order
None
None
Allowed
Discovery Measures Damages
PAGE 390
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
Criminal Procedure WHO MAY FILE (1) Offended party; (2) Peace officer; (3) Public officer charged with the enforcement of an environmental law [Rule 9, Sec. 1]
INSTITUTION OF AND CIVIL ACTION
CRIMINAL
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. 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]
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 (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.
PAGE 391
REMEDIAL LAW
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]
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]
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.
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
(2) Return. The apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) 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]
BAIL WRITTEN UNDERTAKING BY ACCUSED
REMEDIAL LAW
(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]
ARRAIGNMENT AND PLEA 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]
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]
PRE-TRIAL
(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
PAGE 392
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 (3) days prior to the pre-trial. [Rule 16, Sec. 1] Parties are required to be under oath in pretrial inorder to obviate the use of false or misleading statements at this stage. [Annotation to the Rules of Procedure for Environmental Cases, Supreme Court SubCommittee]
UP LAW BOC
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
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]
Evidence PRECAUTIONARY PRINCIPLE 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]] 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]
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]
DOCUMENTARY EVIDENCE PHOTOGRAPHIC, VIDEO AND SIMILAR EVIDENCE MUST BE AUTHENTICATED 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]
PAGE 393
REMEDIAL LAW
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]
