Dean Tranquil S. Salvador III: Critical Areas In Remedial Law

CRITICAL AREAS IN REMEDIAL LAW

Dean Tranquil S. Salvador III

Let me start with the latest amendment to Rule 14 which took effect in March of this year. Rule 14 §12 –On service of summons to a foreign juridical entity. If you will look at your code, all that your code will tell you is that service of summons to a foreign juridical entity which is transacting business in the Philippines is either any of the following: 1. to a resident agent; 2. a government official designated by law; 3. any officer found in the Philippines. However, with the amendment in March of 2011 they have expanded this and they have added these phrases, they said that if a foreign juridical entity is not registered in the Philippines service of summons can be made WITH LEAVE OF COURT in any of the following: 1. service of summons to a foreign court where the defendant resides through the facilities of the Department of Foreign Affairs; 2. by publication in the place where the defendant corporation holds office AND service of summons by registered mail in their last known address here in the Philippines; 3. service of summons by facsimile or other means of electronic messaging for as long as it can generate proof of service; and 4. other means as may be determined by the court subject to its discretion. Now, let me now give you some highlights of what I feel are important topics for you to consider. First and foremost class let me touch on the MANNER OF FILING FESS. This is

important! You have always read and it has always been said that payment of filing fees is jurisdictional. What I would like to tell you that there is also a requirement of paying filing fees in criminal cases and that is found in RULE 111. I am making now a comparison, let me touch on CIVIL FILING FEES and I would like to cite the case of Philippine First Insurance vs. First Logistics citing the case of Sun Insurance of course this case of Philippine First Insurance created two scenarios. I will not repeat the Sun Insurance case because I know you know that. The First Insurance case it says, if the claim is for money, the action is for money and there is no prayer for the amount and for that reason there is no payment of filing fees the court can dismiss the case. If there is an allegation or claim for damage or money that has no value at all the court would expunge it. The second scenario is, if the claim is other than for money but its coupled of course with other claims for money but the payment of filing fees are what...INSUFFICIENT! Then, the court will not dismiss the case outright but will allow you reasonable time to pay filing fees. Now you may have come across with the case of Del Rosario and I would like to be very clear with this, the basic rule class in terms of insufficiency in terms of payment of filing fees. If your payment is based on what you believe was the correct amount as assessed by the clerk of court, then you cannot be faulted. Do you follow? And therefore the court is deemed to have acquired a jurisdiction, are we clear? However class, if there was blatant disregard and bad faith with an intention not to pay the government with the correct filing fees then Manchester rule will apply, the court will not acquire jurisdiction. Now let me touch on the case of Proton Pilipinas vs. Banque Nacional De Paris, why am I even citing this in terms of filing fees in civil cases. As you will recall in the Sun Insurance case; 1. you have to pay filing fees within the prescriptive period or reglementary period;

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2. you will have to pay for filing fees for permissive counterclaims --- Do you have to file a filing fee for a compulsory counterclaim? If you follow the case of Alday vs. FGU for the longest time the court had made pronouncement that you do not have to pay filing fees for compulsory counterclaim. However, with the case of Korean Technologies where the Supreme Court made no explanation at all but merely said, citing RULE 141 which was amended in 2004 there is a requirement of payment of filing fees not only for compulsory counterclaim but also for crossclaim. Do you follow? So class you will take note. So sir, you will ask me how will I answer the question. Of course now its multiple choice and I would tell you in that light you will get the best answer, you should identify the best answer. I am giving you this so that when you choose the best answer you would know how to pick the best answer. If it says, according to jurisprudence or if it says Korean Technology case, that is the latest on the matter. You will have to pay filing fees for compulsory counterclaim, that is a 2008 case. 3. if you did not pay or if there was insufficient payment, it will be alien on the judgment award. You remember that, it will be alien on the judgment award. But I am citing to you the case of Proton Pilipinas for one particular reason, you could only use and avail that lien on the judgment award IF THE CLAIM FOR INTEREST OR DAMAGES HAS ACCRUED WHILE THE ACTION IS PENDING. Can you follow? Has accrued while the action is pending, because of course you cannot expect them to ascertain the amount of filing fees because it has not yet accrued. But if the claim for interest or damages has

been determined, meaning it has already ripen then you will have to pay filing fees. Now, let me now touch on the CRIMINAL FILING FEES. The pertinent provision when you talk of criminal filing fees is RULE 111 §1. And what does it say; you will have to pay filing fees for MORAL, EXEMPLARY, NOMINAL and TEMPERATE. Liquidated is not included, for ACTUAL or COMPENSATORY DAMAGES you will not be assessed filing fees in Criminal Cases. However, I will have to add this; for BP 22 cases ALL CLAIMS FOR DAMAGES will have to assessed filing fees. I will repeat ALL CLAIMS FOR DAMAGES will have to assessed MORAL, EXEMPLARY, NOMINAL, TEMPERATE and LIQUIDATED including ACTUAL DAMAGES, all of those that is found in RULE 111. Now, let me touch on matters on JURISDICTION. I will not tell you it is RA 7691 amending BP 129 because I assume you know. Tama?! BP 129 as amended by RA 7691. I will not go down to the nitty gritty of the enumeration of jurisdictions in civil cases but I would like you to remember this so that you will have something to cling on when it comes to figures. In Metro Manila, the claim should exceed Php400,000.00 - in Metro Manila EXCEEDING. Remember that word, EXCEEDING. So kapag tinanong sa bar, which court has jurisdiction Php400,000.00? Metropolitan Trial Court. Baka sabihin sayo a. Municipal Trial Court; b. Metropolitan Trial Court; c. Municipal Circuit Trial Court. What is the answer? B. METROPOLITAN TRIAL COURT. Are we clear? So you have to be very accurate. Now, for OUTSIDE of Metro Manila exceeding the amount of Php300,000.00 and I would like you to always remember this catch-all phrase “that jurisdiction in CIVIL CASES is determined by the amount of the claim exclusive of DAMAGES, INTEREST, ATTORNEY’S FEES and COST OF SUIT. However, in the light of Supreme Court Circular 09-94 that clarified that provision of BP 129 as amended by RA 7691. If the claim

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is purely for DAMAGES, the amounts that I have mentioned will apply. Are we clear? Now, before I move on in my comparison to a CRIMINAL CASE. Let us look at the basic rule. What is the GENERAL RULE when it comes to question of jurisdiction? Can QUESTION OF JURISDICTION be raised at anytime? Even on appeal? The answer is YES!!! That is the RULE! Eh sir, how about ESTOPPEL BY LACHES on question of jurisdiction. That is what? That is rather the exception. That was cited in the case of Figueroa vs. People, the Supreme Court made it very clear that the QUESTION OF JURISDICTION COULD BE RAISED AT ANYTIME, EVEN ON APPEAL-that is the general rule. The exception is the case of Tijam vs. Sibunghanoy on QUESTION OF ESTOPPEL BY LACHES ON QUESTION OF JURISDICTION – meaning there was UNREASONABLE DELAY IN YOUR HAVING QUESTIONED THE LACK OF JURISDICTION. Now, how about jurisdiction of court in CONTEMPT CASES? Ariola case – how will the court acquire jurisdiction in INDIRECT CONTEMPT. Take note INDIRECT CONTEMPT, the court will acquire jurisdiction UPON FILING OF A VERIFIED PETITION. Take note there are two ways to initiate an action for indirect contempt, it is not by motion. One is by VERIFIED PETITION and the second one is UPON A FORMAL CHARGE by the judge. You can no longer initiate an indirect contempt proceeding today through a motion – that is prohibited. Take note that in CIVIL CASES jurisdiction can be separate from venue, because on VENUE; parties can agree, parties can stipulate, it could be subject to a waiver, it could be subject of consent. That is not true in CRIMINAL CASES, in criminal cases VENUE IS JURISDCITIONAL – the place of commission is the place where the acet tion will be instituted. Now, let me ask you this question; How about the case of Mangundadatu. The crime was committed where? In Maguindanao. Do you follow? How come the action is prosecuted in Quezon City and the judge handling the case is a judge from Quezon City. Sir, Is that not in

violation of your statement that venue is jurisdictional? NO. Class you cannot compromise venue in criminal cases, you cannot stipulate, it cannot be subject of waiver, it cannot be subject of consent. So what happened to that case? What happened to that case was the action was first instituted in Maguindanao. What was transferred to Quezon City is the VENUE OF HEARING/TRIAL and that is subject to the approval of the Supreme Court based on the constitution. So we cannot compromise that, we cannot consent to a transfer in criminal cases of venue for purposes of institution, IT IS ALWAYS IN THE PLACE OF ITS COMMISSION. Unless of course it is a CONTINUING OFFENSE or a TRANSITORY OFFENSE where there is two or more venue. Now let me ask you this question. How about class a REHABILITATION CASE, is that ordinary civil action? Let us define ORDINARY CIVIL ACTION. Ito class basic – an ordinary civil action is: a.) establishes an action or a right; b. Every ordinary civil action should have a cause of action; c.) it is subject of special rules. What is the answer? B. Every ordinary civil action should have a cause of action. How about a CORPORATE REHABILITATION CASE is it an ordinary civil action? NO. It is a special proceeding, the nature of the proceeding is summary in nature and it requires no cause of action. Now let us proceed to the next item. I am still on the item of parties, misjoinder of parties. In RULE 3, is a misjoinder of parties a ground for dismissal? The answer is NO. A party could be dropped or severed without dismissing the case. However, if you talk of an indispensable party, the non-inclusion of an indispensable party. Will it cause the dismissal of the case? YES. If it an indispensable party. However, if it is only a necessary party will that cause the dismissal of the case? NO. That will not cause the dismissal of the case. What if a necessary party refused to be included, what is your remedy? Your remedy is to implead him as an unwilling co-plaintiff. Now class, having

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touched on misjoinder of parties. Let me now touch on, joinder of causes of action. In criminal cases do you have causes of action? In criminal cases according to RULE 110 §9 – You have CAUSE OF ACCUSATION. You have cause of action in CIVIL CASES, but in CRIMINAL CASES you have cause of accusation. Let us look at joinder of cause of action. I would like you to remember the rules. According to RULE 2 §5 it says: that causes of action could be joined whether in the alternative or otherwise. Take note, it could be in the alternative or otherwise and you have to take note of the following rules: 1. you cannot those covered by special rules – for example: you have an action for ejectment and an action for recovery of sum of money. Can you join those? NO. You cannot, because one is covered by ordinary civil action and the other is special civil action. Let us you want a determination of your right as legitime in a holographic will and the other is reconveyance of a title of property which you claim you own. Can you join them? NO. One involves special proceeding probate and the other involves ordinary civil action; 2. you will have to respect joinder of parties – yes, you could join causes of action but you have to respect joinder of parties, permissive joinder of parties – RULE 3 §6. Otherwise, there will be confusion and take note of this IT SHOULD ARISE FROM THE SAME TRANSACTION OR SERIES OF TRANSACTION AND SHOULD HAVE COMMON FACT OR LAW WHETHER JOINTLY, SEVERALLY OR IN THE ALTERNATIVE. So you cannot join together causes of action where

parties are totally unrelated. When their claims are not intertwined or interlocked, you cannot do that. Otherwise you will only cause confusion.

3. you will have to respect JURISDICTION and VENUE – and of course if one claim falls within the jurisdiction of the RTC, all other claims will fall in the RTC.

4. totality rule – it is the SUM OF ALL THE MONETARY CLAIMS, therefore if taken separately, jurisdiction could be determined but if taken together you have another set of jurisdiction.

Let us look at the case of Oca vs. Limbaring, in terms of REAL PARTY IN INETEREST. What does it tell us? Should a party be a real party in interest only because his right arises from a contract? Tama ba yun? Should you say that a party is a real party in interest if they a party to the contract or signatories to the contract. The GENERAL RULE is YES. However, not all claims would arise from a contract. Therefore, it could also arise from tort. There is no contractual obligation, from negligence could there be an action arising from tort...YES! It is also possible class that you are not a party or signatory to the contract but you could be a real party in interest, if there is a breach in the contract. What is that? If there is a stipulation pour autrui. So please, take note of those. Another question that I would like to answer is in connection with a case decided by court in connection with agrarian dispute. What if there is a “KASUNDUAN” in the DARAB? What if there is a “KASUNDUAN” as to who would be entitled to a piece of land and that was resolved and determined by the DARAB? For that reason the DARAB case was terminated. Let us say the

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“KASUNDUAN” was not complied with. Which court has jurisdiction, is it the REGULAR COURT or the DARAB? It remains to be with the DARAB, it arising from the tenancy relation and even if it was already terminated, the source was a TENANCY REALTIONSHIP.

the lawyer, whether upon knowledge or upon the fact of fact. What is the answer? B. The 30 days is counted from the FACT OF DEATH, not from the knowledge but from the fact of death;

Now, let me touch on a question on SUBSTITUTION. What about substitution? Class, I would like to call your attention on the case of Sumaljap. I would like you to bear this in mind, a lot of questions could be taken from this §16 we’ve waited for this question since 2003. When you study §16 of RULE 3 bear in mind that you also have to study at the same time §20 of RULE 3. Tandaan niyo yan ha! What is the rule? The first thing that you will have to remember is, there should be DEATH. Death of who? Death of a PARTY. The provision of the law made no mention as to who died. It does not say it is the plaintiff or the defendant. I want to be very clear with that, it does not say it is the plaintiff or the defendant. But what does it say, A PARTY DIES. So it could be the plaintiff or the defendant. So despite the death of the party the action survives, take note of that. So what are kinds of action wherein, if a party dies the action is extinguished – actions which are purely personal that without him the action can no longer be performed like if you are a painter, you can no longer perform even specific performance if you are dead. If you are a singer you can no longer perform. If you are to give support, of course you are dead. What are the rules that you have to remember? I will group it into this. What is the duty of a counsel?

2. to inform the court of the NAME and ADDRESSES of the legal representative – take note, according to the provision the legal representative could be who? The legal representative could be an HEIR, there is no requirement that it is an executor or administrator but you can have an executor or administrator but I would suggest that you appoint an heir because you do not need court approval.

The duty of a counsel is: 1. to inform the court of the FACT of death – within how many days in case of substitution by reason of death; a. Within 30 days from knowledge; b. Within 30 days from the fact of death; c. At the option of

What is the duty of the court? The duty of the court is: 1. to come up with a notice for the lawyer or for the representative to appear within 30 days from receipt of notice; and 2. to order substitution.

Take note of this, absence of any of these will not lead to a valid substitution. Eh sir, kung mali ang husgado? Walang substitution. Do you follow? That is already answered in the case of Brioso. Kapag mali ang husgado, wala. So, both requirements should take place – the duty of the lawyer and the duty of the court. Now, let me call your attention to this case of Sumaljap. What happened in this case? Class ganito nangyari ditto eh. During the lifetime of the deceased he transferred his interest to someone else, not known to other people. He died, the lawyer now would like to make the transferee in interest as the substitute. During

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the lifetime of the deceased there was a transfer of interest but unfortunately he died. Now the lawyer would like to name NOT an executor, NOT an administrator and NOT even an heir. Can he do that? The court said NO. You cannot do a transfer of interest once the transferee of transferor had died. The transfer of interest should take place during the lifetime of both of them. In this particular case, the person who transferred had passed away therefore the regular provision of §16 of RULE 3 should apply. Before I leave this topic of substitution in civil cases, let me ask the three kinds of substitution in civil cases. What are the three kinds? 1. substitution by reason of death; 2. death of a public officer – this is §17. Let me give you the requirements briefly. a. there should be a death of a public officer; b. there is a new one appointed – a successor to take his place but before a successor could take his place, this is the duty of the requirement of the law, he should have been: i. notified; ii. he should have been given the opportunity to be heard; and iii. he adopts or threaten to adopt the act of the predecessor Wag niyo munang i-substitute kaagad. Let us say a department secretary died, and

there is new one appointed does it mean that he is substituted to the actions of the secretary – NO. You have to comply with the requirement of law. 3. transfer of interest. §19 Let me touch on §20. I cannot discuss §16 without touching on § 20. What does §20 tell us? There is death also. Take note, there is death. But who dies? Here the provision of law is specific. Who dies? The DEFENDANT dies not the plaintiff. So class, under this scenario it should be the defendant who dies. Second item that I would like you to take note. The NATURE OF THE ACTION. Take note, the nature of the action is very specific – it involves a claim for sum of money whether express or implied. IT SHOULD BE A CLAIM FOR MONEY. It is like this, the plaintiff dies and the claim is for a sum of money, the defendant is alive. What provision will apply? Will §16 or §20? NO. §16 will apply. Because the provision of §20 is very specific. It says, the defendant dies and it involves a claim for money whether express or implied. Now, let us look at the provision of the law. What if the defendant dies and the claim is for money? Will the case be dismissed or terminated? IT WILL NOT BE DISMISSED. Will there be substitution? THERE WILL BE NO SUBSTITUTION. It will continue against the ESTATE of the deceased person. Yan ang tandaan niyo! Please! Bakit ko sinasabi na please?! Because class may nagveventure na ganito, kasi naman ang may hawak ng estate eh executor or administrator eh dapat substitution. Totoo yun na ang may hawak ng estate executor or administrator. Pero sinsabi ng batas, sa titulo ng kaso mo ano? ESTATE OF THE DECEASED PERSON, whatever his name is. Will it continue? YES. Tandaan niyo lang, it will not be dismissed.

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Let me now move on. Baka mamaya tanungin kayo ng substitution sa criminal procedure. Sir, may substitution na dyan? Who says yes?! Sir, sino ba naman gustong magsubstitute sa akusado. Sino gusto magsubstitute? Tatawatawa kayo papakita ko sainyo ang provision. Walang gustong magsubstitute sa akusado, of course. According to RULE 111 §4: if the accused dies AFTER ARRAIGNMENT, both the CRIMINAL and the CIVIL ACTION arising from the DILECT WILL BE EXTINGUISHED. But if the accused dies BEFORE ARRAIGNMENT and a case has already been filed, IT WILL CONTINUE AGAINST THE ESTATE. Can there be substitution? Look at the second paragraph of §4 of RULE 111 and if you look at the latter portion of that provision class, you will see basically the same provision as §16. Have you noticed? Eh di sir may substitution sa criminal cases? Before you be mislead, listen to this. YES, there is substitution ONLY FROM THOSE CLIAMS AGAINST THE ACCUSED WHO IS A DEFENDANT, IN CASES INVOLVING OTHER SOURCES OF OBLIGATION including INDEPENDENT CIVIL ACTIONS. If there is no SUBSTITUTION OF THE ACCUSED in the delict. Can there be a SUBSTITUTION OF INFORMATION? YES. RULE 110 §14 that is why the title of that provision is AMENDMENT AND SUBSTITUTION. If the prosecution believes that they will not be able to prove or establish the offense committed based on the information, they could request for a substitution of information. Sir, masyado nang malalim ang discussion natin ditto... Kaya nga critical di ba? Yun ang purpose ko dito. Baka sabihan niyo wala naman ka torya-torya to! Hehe! Kidding aside class. Now, let us proceed. Doon naman tayo sa INDIGENT. I think that you are aware of the leading case Algura vs. LGU of the City of Naga. The pertinent provision is in §21 if you follow the provision it is fairly simple, it only tells you that the proceeding is summary, ex-parte, without notice to the other party and

that you would like to be indigent to be entitled to stenographic notes, you are not to pay filing fees for the time being but should you win there will be a lien on the award. Indigent is defined under §21 as someone whose income is not sufficient for his food, clothing and shelter. Kapag ito lang ang tinandaan niyo tagilid kayo! Huwag lang yan ang tatandaan niyo. You have to make note of the case of Algura. Why? Because there is a RULE 141 §19 that was amended in 2004 that gave as a new definition of an indigent. Sir, bakit? The code that you have §21 was the 1997 Code but when they issued they came up with RULE 141. Who is an indigent? An indigent is someone whose income and that of his immediate family does not exceed double the monthly minimum wage. Take note: whose income does not exceed double the monthly minimum wage. Kapag nakalagay diyan sa codal mo eh Php5,000.00 luma ang codal mo. Tingnan mo yung codal mo malamang yan eh 2003 pa. His income and that of his immediate family does not exceed double the monthly minimum wage and does not have real property with a fair market value exceeding Php300,000.00. Why do in need to lay the basis for this discussion? Ganito kasi class ang sinabi ng Supreme Court – if the person, the applicant, who wants to be declared as an indigent falls within the definition of RULE 141, meaning his income and that of his immediate family does not exceed double the monthly minimum wage and he does not own real property with fair market value not exceeding Php300,000.00, then he is an indigent. However class, if he does not fall squarely within the definition meaning he has property in excess of Php300,000.00 fair market value or he has an income more than but he claims to be an indigent, you will have to go through an INDIGENCY TEST, consistent with §21. Sir, what do you mean by indigency test? The court will have to ascertain whether your income is not sufficient for your food, clothing and shelter. Are we clear? So that one you will have to take note. If the question makes it appear that he falls under RULE 141 indigent na

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siya, if he does not fall under RULE 141 but he claims to be an indigent §21 will apply but the court will have to conduct an indigency test, in the determination whether or not he is an indigent. Now, let me ask you this question. Who should submit an affidavit for the determination of who is an indigent? According to the case of Tokyo Marine Malayan Insurance vs. Valdez – it is only the litigant who needs to prepare an affidavit. Now, let us look at the RULE on VENUE. Eh sir, papaano in a CRIMINAL CASE I cannot afford a lawyer, there is what you call a PUBLIC ATTORNEY who will be assigned to you in a criminal case if you cannot afford a counsel. What are the rules? Let me give a breakdown of the rules in criminal cases. The rule is AN ACCUSED IS ENTITLED TO A COUNSEL DE PARTE (a counsel of choice). Kung kaya niya, kumuha siya. If he cannot afford one he could be given a COUNSEL DE OFFICIO for purposes of arraignment – pwede yun for purposes of arraignment only, for purposes of the entire proceeding. Is it possible class that the Court of Appeals will also appoint a counsel de officio for an accused? YES. If the accused files an appeal by himself or he has no counsel de parte. The court could appoint counsel de officio. Can the Supreme Court appoint a counsel de officio? YES. The court can appoint a counsel de officio for an accused. Sir, why did you touch on this? Walang pera, indigent eh. But if you talk of CIVIL CASES, the provisions that I discussed will apply. What is the difference between a PUBLIC INTEREST CASE and a PRIVATE CASE? Do you have real party in interest there? In a private action you talk of real party in interest, as a party. In a public case you talk of, not a real party in interest. You talk of a party who suffered substantial interest by reason of the governmental act; you are not talking of a real party in interest. There are a few items that I would like to touch on VENUE. First item that I would like you to

remember is the case of Irene Marcos-Araneta vs. Court of Appeals. This is instructive because of the word principal. I will repeat just a few provisions in the code that you have to remember. Personal action is where plaintiff or principal plaintiff resides or defendant or principal defendant resides. Real action is dictated by what? The place where the property is located. Are we clear? This case of Irene Marcos-Araneta involves that, not real action but personal action. What is the problem in this case? Irene Marcos-Araneta resides in Forbes Park, Makati. She is a plaintiff in an action involving a trust, where she is a beneficiary. But aside from Irene Marcos-Araneta who resides in Forbes Park, Makati there were three other plaintiffs who were designated by Irene Marcos-Araneta as trustees of her beneficial trust. So you have three more. The three resides in Batac, Ilocos Norte but in the complaint they said that Irene Marcos-Araneta resides in Batac, Ilocos Norte. So yun ang question, sabi dapat i-dismiss yan because Batac, Ilocos Norte is not the proper venue according to the other party. Why? Because they said that based on the provision on rule of venue, the principal plaintiff is Irene MarcosAraneta because she is the beneficiary of the trust. So, what did the Supreme Court said? In that case the venue should have been in Makati and not Batac, Ilocos Norte. The next question that I would like to touch on is this; can the court dismiss a case motu propio on the ground of improper venue? NO. The court cannot do that. Improper venue as a ground for dismissal could only be availed of if there is a motion to dismiss, the court cannot dismiss that motu propio. The next item that I would like to touch on venue would be WORDS OF EXCLUSIVITY. Ito tandaan ninyo, it comes in handy that you know. Legaspi vs. Republic, words of exclusivity. In cases the party STIPULATE or AGREE on a venue in a civil action, there should be words of exclusivity like EXCLUSIVELY, ONLY, WAIVING ALL OTHER VENUES those are words of

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exclusivity and that will limit the venue to the place where the parties have agreed upon. Let me now touch on CRIMINAL. Awhile ago class, I mentioned that venue should be jurisdictional in criminal cases. Do you agree with me?! Ok! Venue should be jurisdictional in criminal cases. However class I need to touch on the HUMAN SECURITY LAW. What about the human security law? Because class the human security law gives exceptions to the rule, of course the Revised Penal Code likewise provides an exception in Article 2 – where it involves counterfeiting of Philippine bank notes, although committed outside of the Philippines; could it be prosecuted in the Philippines? YES. This is another set of exceptions provided outside of the RPC, under the HUMAN SECURITY LAW. What are those? 1. If it is committed within the diplomatic premises of the Philippines or against its officers although committed outside the Philippines could be prosecuted here; 2. If the act is committed against the Republic of the Philippines in connection with the human security law meaning there is act of terrorism then it could be prosecuted in the Philippines; 3. If it is committed against a particular ethnic group or it is an act against ethnicity – like isang particular ng... ayokong magbanggit ng grupo sa Pilipinas eh. Patayin ang mga ganito. Even if committed in Hongkong, could it be prosecuted here? YES.

Now, let me now touch on SUMMARY PROCEDURE. The period class to respond to a case in a complaint for summary procedure is 10 days – the period to file an aswer. Can that period be extended? The period CANNOT be extended – a motion for extension is a prohibited pleading. Let us look at SMALL CLAIMS. What is the period to respond to a small claim action? Is it 10 days 0r is it 15 days? The period to respond to a small claim action is a period of 10 days. You cannot file an extension and all of the available evidence already be appended to and attached to the answer. Let me tell you know the jurisdiction in summary procedure. Do you still remember the jurisdiction in civil cases for summary procedure? The magic numbers are 200,000 and 100,000. In Metro Manila not exceeding Php200,000.00 – summary procedure. Outside of Metro Manila not exceeding Php100,000.00 – summary procedure. What is the jurisdiction of the court in small claims? Php100,000.00. The claims for a sum of money does not exceed Php100,000.00. Now, this is the problem. Where will you file a small claims action outside of Metro Manila and when will you file a summary procedure case, because both falls within Php100,000.00. It is determined by who files the case. If you want to file summary procedure, you file summary procedure. If you want to file small claims action, you do so. But I would like you to take note that it is within the threshold of Php100,000.00 and please take note class on small claims, it also includes civil action arising from or the civil aspect of a criminal case. So if there is a claim for sums of money arising from a criminal case that will still be included, that will still be subject of a small claims action. Now, let us look at SPECIFIC DENIALS – Republic vs. Sandiganbayan. Let me touch on denial which says LACK OF KNOWLEDGE OR INFORMATION TO FORM A BELIEF AS TO THE TRUTH THEREOF. You remember that, there are three kinds of denial under §10 of RULE 8.

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What are those?

ADMISSION. Take note of that, will amount to an admission.

1. Specific denial; 2. Qualified denial ( I admit the portion and deny the rest); and 3. Lack of knowledge or information to form a belief as to the truth thereof. The question raised before this case is when can you use the denial. This is the case involving the Marcoses, in the allegation was this; the Marcoses responded there were clear allegations against them that they have performed acts that affected the Philippine economy and what did they say – lack of knowledge or information to form a belief as to the truth thereof. What did the Supreme Court say? Despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had no knowledge or information sufficient to form a belief as to truth of such allegations. Such a general selfserving claim of ignorance alleged in the petition for forfeiture was insufficient to raise an issue. So what is the standard you have to take note when it comes to lack of knowledge or information to form a belief? It was cited in the case of Morales vs. Court of Appeals, where the court ruled that if an allegation directly and specifically charges a party with having done, performed or committed a particular act which the latter did not in fact do A CATEGORICAL AND EXPRESS DENIAL MUST BE MADE. Are we clear? So if there is a clear allegation that you have performed or you have done a particular act, you cannot just deny by lack of knowledge or information sufficient to form a belief as to the truth thereof. Also pertinent to this case is a GENERAL DENIAL. A general denial class, wherein there are specific allegations of wrongdoing that has been done and performed cannot be denied by a general denial because A GENERAL DENIAL WILL AMOUNT TO AN

Now, let us touch on another item which is ACTIONABLE DOCUMENTS. This is another important item, actionable documents the pertinent provisions are §7&8 of RULE 8 – Actionable Documents. The rule class is this, when it comes to actionable documents HOW DO YOU ALLEGE? – That is the rule, but before I touch on how to allege. What is the rule when it comes to evidentiary matters? The rule is, a pleading should make a statement of brief and concise statement of ultimate facts devoid of evidentiary matters. So what is the rule? You simply make allegations. That’s the rule. Sir, do I need to attach evidence? NO!!! Because all that is required in the pleading is a brief and concise statement of ultimate facts devoid of evidentiary matters, UNLESS IT IS BASED ON AN ACTIONABLE DOCUMENT. Are we clear? If it is based on an actionable document, how do you allege an actionable document? 1. If you reproduce the substance, only the substance, in the body of the pleading you have to attach a copy or an original but I would suggest you attach a copy; 2. If you could reproduce the text thereof in the body, then it is sufficient.

So that is the way to allege an actionable document. Now class, how do you specifically deny an actionable document? An actionable document is DENIED SPECIFICALLY UNDER OATH. Take note, it is denied specifically under oath. Sir, what is the effect if it is not under oath? You are deemed to have admitted the due execution and genuineness of the document. I would like to be very clear with this class. You did not lose the case, do you follow? It does not mean class that you have admitted the contents of the interpretation of the court,

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no. It only tells you that the document is true and it was validly executed. It should be specifically denied under oath. Let me give you the case of Natcher vs. Court of Appeals. That gives a DISTINCTION OF A CIVIL ACTION AND A SPECIAL PROCEEDING. What is the difference between a civil action and a special proceeding? Ah sir madali yan! Sasabihin mo sir madali yan, a civil action there should be a cause of action; a special proceeding establishes a status, right or a particular fact. Hindi lang yun ang sinabi ng case, making kayo. Eto sinabi niya; What differentiates a special proceeding form an ordinary civil action is this, a SPECIAL PROCEEDING includes those proceeding which are not ordinary in this sense but is instituted according to some special mode as in the case with proceedings commenced with summons and prosecuted without regular pleadings. Take note, without regular pleadings. A special proceeding must therefore be in the nature of a distinct and independent proceeding for a particular relief, such as may be instituted independently of a pending action by petition or motion upon notice. Baka i-multiple choice yun. Ah hindi, status or right ang hinahanap mo eh wala! None of the above. Di ba?! It is an action that establish an independent relief. Are election cases akin to ordinary civil actions? Are election cases akin to ordinary civil actions, that if you fail to file filing fees your case will be dismissed? What did the court say? The ponencia declares that failure to pay the filing fee warranted the dismissal of his motion for reconsideration, the error in this conclusion lies in the equally flawed premise that §19 RULE 40 of the COMELEC rules is analogous to §13 RULE 41 of the RULES OF COURT. Are we clear? So the Supreme Court said it is not analogous. Why? What is RULE 41 §13 tell us? It tells you that you will have to pay; you have to FILE AND PAY docket fees within the regelementary period. The Supreme Court says that election cases are not akin to ordinary civil action and let me continue the ruling of the

Supreme Court, under the COMELEC rules when the prescribed filing fee is not paid on the same day as the filing of the pleading or motion such non-payment is not a mandatory ground for dismissing or denying the pleading or motion. Are we clear? So in COMELEC rules, it is not automatic or mandatory to dismiss if you do not pay filing fees. The COMELEC has reasonable discretion to allow you to pay the filing fees. Now, issues on impairment of legitime. Can it be threshed out in a civil action for reconveyance and damages? It could only be threshed out in a special proceeding. Legitime is not and can never be a subject of an ordinary civil action. Take note of that. Another item that I would like to discuss to you is BILL OF PARTICULARS. Let me ask you this question. Is this there bill of particulars in criminal cases? YES. That is found in RULE 116 §9 if I am accurate. Of course there is bill of particulars in civil cases that is found in RULE 12. Eh sir, ano pala yung bill of particulars? Class a motion for bill of particulars is filed before a party responds to a pleading. Remember I used the word pleading. Do you follow? Can you file a motion for bill of particulars of a COMPLAINT? YES, within the regelementary period. Can you file a motion for bill of particulars of an ANSWER, which appears to be not clear and vague? YES. Can you file a motion for bill of particulars of a REPLY? YES, within a period of 10 days upon the filing of the reply you can file a motion for bill of particulars. What do you need to remember when you file a motion for bill of particulars and this is the same rule whether in criminal and civil cases? What is that? In motion for bill of particulars you have to IDENTIFY THE DEFECTS AND THE DETAILS DESIRED. Are we clear? Ganun yun ah! You have to identify the defects and the details desired. Para hindi niyo makalimutan class I will give you an example. An example that you will remember until you become a lawyer or not, and I hope you become one. Ngayon madami pa kayo, nagsisimula pa lang pero pagtumagal

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na malalagasan na kayo, yung iba kelangan na maghabol sa binabasa. Pero class sa ngayon ang dami niyo dyan yung iba sainyo pa-banjing banjing lang, papasok-pasok, paupo-upo tapos kapag walang magawa they would identify the defects, the defects of their seatmate, of their co-reviewee dib a ganun yun! Alam mo maganda siya, kaya lang... Kita mo yun, akala niya gwapo siya... Ganun dib a?! You identify defects but of course you will not tell them the details desired. You will not tell them but in motion for bill of particulars you will have to identify the defects and you will have to tell the other party, this is what I want. Like paragraph 2 is not clear, it is defective. I would like you to give me the following details. Are we clear? Like for example it is a claim for a motor vehicle. Aba nakalagay dun is yellow Mitsubishi Lancer. Aba’y sangkatutak ang Mitsubishi Lancer an yellow. Ano bang model yun? Anong taon? Wala, right?! So, I would ask paragraph 4 is defective I need the following details: chassis number, plate number, model number. Do you follow?! All of these, I would ask from him. Do you follow? Identify the defects and the details desired. Now, let me give you this case. The case of Reyes vs. RTC of Makati – can you file a motion for bill of particulars in INTRACORPORATE cases? Bago yan sir, bago! Kapag hindi alam bago... can you file a motion for bill of particulars in intracorporate cases? NO. It is a prohibited pleading. Can you file a motion for bill of particulars in a SANDIGANBAYAN case? YES. Virata vs. Sandiganbayan and the Rules of Criminal Procedure are used in Snadiganbayan cases. In fact class the consequences are basically the same. Can the court DENY OUTRIGHT the motion for bill of particulars? It could either DENY or GRANT OUTRIGHT - §2 RULE 12. Now, let me ask you this question. Let us say the court grants the motion for bill of particulars. What should the plaintiff do, as a rule or the one who filed the pleading?

2. he could file a bill of particulars; or 3. the court can order an amendment. Tandaan niyo yan ha! There are only two instances in the code wherein despite the absence of a motion to amend, the court can order an amendment. What are those: 1. in motion for bill of particulars – instead of the court ordering the filing of bill of particulars, the court will order AMEND para tumama yan amend; and 2. motion to dismiss – a motion to dismiss could either be granted, denied or the court can order an AMENDMENT, the court can order an amendment, the court cannot defer on a ruling on motion to dismiss. So let us say class that the plaintiff did not act on the order of the court to file a motion for bill of particulars. What will happen to the case? What will happen to the case if the plaintiff did not comply with the order of the court to file a bill of particulars? What will the court do? The court can DISMISS the case. This is based on RULE 17 §3, this is also based on the case of Virata vs. Sandiganbayan. What if only portions have not been clarified? Nagsubmit ng bill of particulars, pero kung baga sa layman’s language yung sagot lusaw. Hindi rin kinocomply pero nagsubmit lang. Allegations could be expunged or stricken off the record. What should the defendant or the other party timely submitted a bill of particulars? He has to file an answer. He has any of the following options:

1. he should give the details desired;

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1. he could file an answer within the remaining period after the



interruption in a period no less than five days; 2. he could a reconsideration;

motion

for

3. but if he feels that there is a grave abuse of discretion he could file a petition for certiorari. Now, let us move or slide slowly to criminal procedure. When can you file your motion for bill of particulars in criminal cases? In civil cases, it is before responding to a pleading – before a complaint, before an answer. Look at RULE 116 §9, what does it say? Does it say before arraignment or before plea? Before arraignment, so class even before the reading you have to file a motion for bill of particulars. Please take note of that, even before the reading of information you have to file a motion for bill of particulars. Before I leave this item, let me now tell you class, just for purposes of easy study for you. The counting of periods in bill of particulars is more or less the same as motion to dismiss. Do you follow? What are the rules that I would like you to remember? If you file a motion for bill of particulars, the period id interrupted. If you file a motion to dismiss, the period to file an answer is interrupted. Do you follow? The period will stop and class once it is denied and you feel like filing an answer, the period will commence to run again but please take note that if the period is less than five days, in all cases it will be at least five days.

JUDICATA AND STATUTE OF LIMITATIONS. Sa madaling salita class, those grounds could be raised even after answer or a motion to dismiss. Do you follow? The rest are waived, you can no longer raise them. However class jurisprudence tells you and ADDS ONE MORE wala dyan sa code niyo LACK OR ABSENCE OF CAUSE OF ACTION. This is different class from the ground in RULE 16 – Motion to Dismiss, this is different because the ground in RULE 16 states that the pleading asserting the claim states no cause of action. Are we clear? You have to memorize it that way. Hindi lang no cause of action, di ba ganun shortcut eh! The pleading asserting the claims states no cause of action. Class, it only tells you that upon looking at the complaint there is really no leg to stand on. However lack or absence of cause of action could be raised even after an answer or a motion to dismiss had been filed, in fact it has been treated in the nature of a demurrer to evidence. Even after the plaintiff had presented his case or his evidence and the defendant feels that there is lack or absence of cause of action, he could file it even after an answer or a motion to dismiss and it must be treated as a demurrer to evidence. Now, let us touch on DEFAULT. What are the things that I would like you to remember when it comes to default. There is what you call: 1. general default; 2. default; 3. as in default.

Now, let me touch on default. But before I touch on default let me tell you this motherhood statement. Ok! Para it comes in handy for you. All defenses or objections are deemed waived if not raised in an answer or a motion to dismiss. So if the defenses or objections are appealable you have to raise in the first instance before an answer or a motion to dismiss EXCEPT LACK OF JURISDICTION OVER THE SUBJECT MATTER, LITIS PENDENTIA, RES

General default usually applies in land registration cases or in cases wherein there is no defendant. Meaning IN REM ACTIONS, so what happens is before the court will proceed the court will ask – are there any oppositors despite the publication of the notice? Your honor there is none. CAN I MOVE FOR GENERAL ORDER OF DEFAULT? That is general default. Do

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you follow? The second kind is the regular one, what is that regular one? Under RULE 10 and what does it tell you? There is FAILURE TO FILE AN ANSWER but class it should not be enough, it should not stop there. It is not sufficient to say that there is failure to file an answer, there should be “PROOF OF SUCH FAILURE”. That is according to the provision; there should be proof of such failure. You have to show proof of failure to file answer. So not only absence of an answer or a responsive pleading but there should be what? Proof of such failure. Now, what is your remedy? Iba yung ORDER of default sa JUDGMENT by default. An order of default is an order that tells you, you are now in default and you cannot participate in the proceeding and you are only entitled to notices. Yun lang, yun ang order. How do you lift an order of default? -it should be first and foremost, under oath – there should be a motion to lift or set aside the order of default under oath on the ground of FAME (fraud, accident, mistake or excusable negligence) and your DEFENSE IS MERITORIOUS. Take note class, that the negligence must be excusable. If it is gross neglect you cannot use this to lift the order of default. Sir ano yung gross neglect? Dala mo yung files mo punta ka ng bar nakipag-inuman ka, that is gross neglect. You should have left that in your office or in your car. Do you follow? As a rule class take note, negligence of counsel is negligence of client, that is the general rule. However, if it is gross that amounts to deprivation of due process on the right of the client, then the court can say that the negligence of the lawyer is not negligence of the client.

Now, let me move further. Papano sir yung AS IN DEFAULT? Ayan, ano yung as in default? Class that is no longer used in our code. However, because of the age of some justices or some examiners it is better that you know because they were taught under that rule but the effect is also the same, except that the provision had already been dropped. What do you mean by as in default? The defendant did not appear during the scheduled pre-trial, that is as in default. What is your remedy? You have to file a motion to set aside also on the ground of fame but there is no need to say that your defense is meritorious. On a regular default, when you file a motion you will have to say that you have a meritorious defense. On an as in default, you have to file a motion to lift on the ground of fame with no such statement. Why? Because there is already an answer. What is the effect of a party defendant present during a pre-trial but did not submit a pre-trial brief? The same, because failure to submit a pre-trial brief is equivalent to absence during pre-trial, therefore the effect is the same. Let me now touch on DEFAULT JUDGMENT. What is a default judgment? A default judgment happens when a party-defendant has been declared in default. He was given notices, did not file a motion to lift and there was already a judgment, that is a judgment by default. What are your remedies for a judgment by default? Can you file a motion for reconsideration? NO. Because you did not present evidence – motion for reconsideration says there is misappreciation, there is excessive award of damages and the evidence is insufficient to justify the decision. You cannot file a motion for reconsideration. You could file a MOTION FOR NEW TRIAL within the regelementary period. You could file an APPEAL within the regelementary period. You could file a PETITION FOR CERTIORARI if there is grave abuse of discretion amounting to lack or excess of jurisdiction. If the judgment became final with no fault attributable to you, then you can file a

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PETITION FOR RELIEF, otherwise you cannot file a petition for relief from judgment. Take note also, there could be PARTIAL DEFAULT. A partial default can take place wherein there is more than one party, meaning there are multiple parties and one party-defendant did not file an answer. Does it mean that the court will already render a judgment? NO. The court can still hear the case as to the non-defaulting defendants. As to the non-defaulting defendants, can the case proceed? Can they present their evidence? YES! And class take note, if there is evidence that will benefit the defaulted-defendant, it could benefit him. Can there be DEFAULT IN NULLITY CASES? Dapat nyan sagot niyo matatapang na. WALA SIR! Eh, parang ngayon niyo lang narinig. Can there be default in nullity cases, annulment? WALA. Just to give you briefly the process. Kapag binigyan kayo ng ganyang qurstion, nullity case ang process ganito – if there is no answer despite service of summons, the court upon motion will schedule or will refer the matter to a COLLUSION CONFERENCE before a prosecutor, within the period the prosecutor will determine whether there was collusion and notify the parties and thereafter the records will be returned to the court and the court will issue a notice of pretrial. So there is no default in cases of that nature. Now, let me now touch on lis pendens. NOTICE OF LIS PENDENS. Not litis pendentia, but lis pendens. Now let me ask you this question, which has priority? Is it the registered mortgage, that was registered ahead over a notice of lis pendens? Ok, liliwanagin ko... Nauna yung mortgage i-register and then subsequently there was a notice of lis pendens on the same property, which will be preferred or priority? Does it mean that even if there is a public sale the notice of lis pendens will always be there? What did the court say? The auction sale in a mortgage sale retroacts to the date of the registration of the mortgage, putting the auction sale beyond the reach of any intervening lis pendens sale or attachment. A contrary rule would make a prior registration of

a mortgage or lien meaningless. But it is a different story if the lis pendens was prior to the mortgage. The next item that I would like to cover would be still lis pendens, applicability to certain actions and proceedings. The question is, would it include money claims. For example, if it is a suit for recovery of sums of money let us say for an amount of Php800,000.00. It is purely a money claim, could you cause the annotation of notice of lis pendens on the property of the defendant on a purely money claim. The pertinent case here is the case of Atlantic Erectors and it says: by express provision of law the doctrine of lis pendens does not apply to attachments, levies of execution or to proceedings for the probate of wills or for administration of estate of deceased persons. Generally, the doctrine of lis pendens has no application to a proceeding in which the only object is recovery of money. Take note, if the action is solely for recovery of money lis pendens cannot be applied for. It is essential that the property be directly affected as where the relief sought in the action includes the recovery of possession or enforcement of a lien or adjudication between conflicting claims of title, possession or right of possession. So class, A PURELY MONEY CLAIM THAT DOES NOT involve possession, conflicts on title, matters of enforcement of lien involving a title cannot be subject of lis pendens. In this particular case was, it involved recovery of money and subsequently what the applicant did is to apply for a notice of lis pendens on the property of the defendant. What are the purpose of notice of lis pendens? The case of St. Mary of the Woods School vs. Office of the Register of Deeds of Makati. The purpose are as follows: Generally it is founded it is on public policy and necessity;

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1. to keep the property within the power of the court; 2. to announce to the whole world that a particular property is subject of a litigation and that also serves a notice that anyone who touches the property is subject to the notice of lis pendens. Can you cancel the notice of lis pendens? Which court has the inherent power in notice of lis pendens? It is the trial court that has the inherent power to cancel a notice of lis pendens. The grounds are as follows: 1. if the purpose of the annotation is for molesting the adverse party; and 2. when the annotation of the notice is no longer necessary to protect the title of the party. Now let us touch on this next question in the same case. In this case class, there was a question of forum shopping because there was an appeal in connection of the main case and while that was pending there was another motion filed and the motion was a motion to reinstate, re-annotate a notice of lis pendens. There was an appeal of the main case, where one of the issues is the lis pendens and there is a motion subsequently filed wherein the purpose of which is to re-annotate or reinstate the notice of lis pendens that was already cancelled. Can you follow? How did the Supreme Court treat an appeal and a motion to reinstate a notice of lis pendens? The Supreme Court said that the motion was merely a reiteration of the request to reinstate, the Supreme Court did not consider it as forum shopping it was merely treated as a reminder to the court that they really wanted the

reinstatement of the lis pendens. Let me ask you this nenxt question. Does a notice of lis pendens create a right or a title? If you annotate a notice of lis pendens does it create a right or a title over the property that was subject of the lis pendens? That is the case of Vicente vs. Avera. It was answered there that it serves to protect the real rights of the registration while the case involving the same is pending. While the notice of lis pendens remains on the certificate of title, the registrar could rest assure that he would not lose the property or any part of it during the litigation. So in simple words, a notice of lis pendens neither affects the merits of a case nor creates a right or a lien. It only puts the certificate of title on notice and put the property secured until the termination of the case. The next question that I would like to answer still on the notice of lis pendens is this: Whether or not the claim of a party, respondent, has merit if it affects the annotation of lis pendens on the title of the property? According to the case in Romero vs. Court of Appeals there is nothing in the rules which require that a party seeking annotation to show that the land belongs to him. So ownership is not required to cause the annotation of a notice of lis pendens. You do not need to claim or to say that I am the owner, I title to the land. All that you need is that, according to the rules, the property subject of the notice of lis pendens is the subject of the litigation, the subject of the pending controversy. You do not need to say that I am the owner, that the property belongs to me. There is no requirement that the party applying for the annotation must prove his right or interest over the property annotated. All that the rules require is that to have the annotation as an affirmative relief since the notation neither affects the merits of the case nor creates a right. I would to be very clear with this, a notice of lis pendens does not affect the merits of the case it will not create a right or a lien. That is why it is pure and simple, what? Notice. How do you effect the notice? You

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simply prepare a memorandum or anything in writing directed to the register of deeds. And what should it say? It should say that there is a pending case, the description of the property, who are the parites and the title number and you already have a notice. Can you follow? What is harder is to cancel the notice of lis pendens. The grounds as I mentioned a while ago for the cancellation of the notice of lis pendens is what? If it will only molest the adverse party or there is no reason to protect the property subject of the litigation. Now, what do you need in order to cancel the notice of lis pendens? You need an order from the court. It is easy to cause the notation, it is harder to cause the cancellation because the cancellation would require an order from the court. As I mention to you a while ago there is no requirement that the property subject of the notice of lis pendens is owned by the person who effects the notice of lis pendens. Let me now touch on the case of Heirs of Lopez, which is very informative on what is the nature of the action. Meaning, when you say notice of lis pendens you are practically telling the whle world, this is subject of a pending litigation. In this case, there was no action filed. Take note, there was no action, there was no complaint filed, there was no commencement of any proceeding. What happened? He simply filed a motion to cancel the title or to nullify the title. Where? In the Land registration Authority. He did not file a case in court. Take note, he did not file a case in court but he filed a motion in the LRA to annul or to cancel the title. What did the court say? The application for lis pendens was bereft of the original petition or complaint upon which this office will base its action. So what is required class to effect a notice of lis pendens is an actual court action. Not in any quasi-judicial agency like the LRA but there should be a pending litigation in court. Let me call your attention still on the case of Heirs of Lopez class, because this case gave us an enumeration where a notice of lis pendens is appropriate. This might be helpful to you.

Where a notice of lis pendens is appropriate: 1. an action to recover possession of real estate; 2. an action to quite title; 3. an action to remove cloud; 4. and for partition; and 5. any other proceeding of any kind directly affecting title to the land, the use or occupation thereof. When will the notice of lis pendens do not apply: 1. in preliminary attachments; 2. in proceedings for probate of will; 3. in levies on execution; 4. on proceedings for administration of estate of deceased persons; and 5. in proceedings where the sole object of the action is recovery of money. This was mentioned in the case of Atlantic Erectors. So I hope that will help you on lis pendens. I am still on service because lis pendens is in RULE 13 on Service. Let me touch on the case of PCI vs. Court of Appeals. Which is very helpful, in the definition of FILING AND SERVICE. What do you mean by FILING? It is an act of presenting a pleading in court. What is SERVICE? It is the act of providing a party with the copy of the pleading. Again, filing is the act of submitting or presenting a pleading in court while service is the act of providing a copy to a party. I would like you to take note and for you to highlight, that when we say service it is not

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limited to an individual party. Service could be made to a juridical entity, to an individual, to a court, to a tribunal, to an agency. Do you follow? For as long as they are parties to the case. Now, let us now answer this question: What are the modes of filing? I do not want you to be confused. Very simple, what are the MODES OF FILING? It is either by PERSONAL SERVICE or by REGISTERED MAIL. Ordinary mail is not allowed, do you follow? Ulitin ko, on filing it is only PERSONAL SERVICE and SERVICE BY REGISTERED MAIL. When you talk of SERVICE class, it could either by personal service, registered mail, what else? Ordinary mail. In service you include ordinary mail, in filing you do not. You only limit it to personal service and registered mail. What is the reason for that? It is very hard to prove when ordinary mail. Right?! So... Hindi ho na-file ko yan eh, pinadala ko yan eh. Kelan mo pinadala? Pinadala ko ho yan! It is very hard to prove. Do you follow? That is why you would note as I started our discussion this afternoon I touched on summons. Wherein they said, if it is a foreign juridical entity. Service of summons to foreign juridical entity with leave of court if it is not registered to do business in the Philippines, one of the modes is by facsimile or other electronic mode WHERE PROOF OF SERVICE COULD BE GENERATED. What I notice that they should have included was what? Express mail. You know what express mail is? LBC, UPS, DHL because they have tracking number there is a way to generate proof of service. Although we could say because the last provision or subsection of the new §12 says other modes as may be determined by the court. Besides for all intents and purposes you have to secure leave of court. Let us now touch on another item that I feel is important is PRIORITY OF SERVICE. Still on RULE 13, priority of service and I would like to touch on the case of Shecker vs. Shecker. What is the rule? I would like you to bear in mind what is the rule in terms of priority in service and filing.

What is the priority of service and filing? PERSONAL – on §11. It should be personal, that is the general rule. If you cannot do it personally , you should make an explanation but that it is an exception and it is not enough for you to make an explanation. In one case decided by the court, ang sinabi niya ito lang ha: sabi niya time constraints, because of time constraints I am unable to file by personal service. Anong sabi ng Supreme Court? Sandali lang! Ang opisina mo ay sa T.M. Kalaw yung kalaban mo sa Legaspi Village sa Makati, ang paliwanag mo time constraints. The Supreme Court did not buy the idea and denied it and said that there was no proper filing. So what should you bear in mind? It is not enough for you to make an explanation. That is why if you read the provision §11 it says: whenever practicable. Do you follow? Nakita niyo? It says, whenever practicable. Meaning personal service should be made or personal filing whenever practicable. So your explanation would show that it is impracticable. Do you follow? That it is impracticable. Like for example class in the case decided by the court in Musa vs. Amor sabi nito: Eh kung yung filing sa Court of Appeals yung magpa-file nasa Donsol, Sorsogon sabi ng court that is what? Impracticable. Do you follow? And in the case of Shecker vs. Shecker ano naman ito? There was failure ot make an explanation but the Supreme Court said the RTC should have known, sabi nila. Why? That the party holds office in, petitioner holds office in Salcedo Village, Makati and the assailed orders were issued in Iligan City so obviously you cannot do it by personal service. Right?! What did the court say? The lower court should have taken judicial notice of the great distance between said cities and realize that it is indeed not practicable to serve and file money claim personally. Do you follow? Pinagalitan pa siya, sabi niya hindi mo ba alam na mas malayo yun Iligan sa Makati? So here the court used what? Judicial Notice. Sir, ano ngayon ang standard na dapat naming tandaan for purposes of the bar the GENERAL RULE IS PERSONAL SERVICE. If you

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cannot do it by personal service, you should show that it is impracticable to do it personally and give an explanation. This case of Shecker is an exceptional case wherein there was no written explanation but the court said, you should have taken the judicial notice na malayo but this not the standard, this is rather an exception. Wherein the court said you should have taken judicial notice. I am not certain that if confronted with the same fact in the future, similar facts in the future the Supreme Court will decide in the same manner. So all you need to remember is general rule personal service, if it is impracticable to do it you do it by registered mail but with an explanation. A time constraint is not a good explanation. Distance between the court and the petitioner’s office is that a good explanation? YES. Unavailability of messenger sir, is that a good explanation? YES. That could be a good explanation. Sir, paano mo nalaman? Ginagamit ko yun eh! Hindi pa naman ako nadidismiss eh. Now, let us now look at class, before I leave that portion a few more itmes on... baka gulatin kayo i-codal kayo. Ano yun?! COMPLETENESS OF SERVICE. What do you mean by completeness of service? The service has been what? Completed or in a sense, properly executed. How? By personal service UPON ACTUAL RECEIPT. By ordinary mail UPON THE LAPSE OF A PERIOD OF 10-days. So ibig sabihin kapag nagpadala kayo ng mail – ordinary bahala na matatanggap niya yan because after the period of 10-days it is deemed to have been complete service. What else? How about registered mail? Ito class a little bit tricky, kapag kinodal kailangan alam niyo. Upon actual receipt or lapse of a period of five days from first notice whichever comes first. Again, Upon actual receipt or lapse of a period of five days from first notice whichever comes first. How about PROOF? What is proof of personal service? Class there are three:

1. written acknowledgment or admission of the one who received it; 2. OFFICIAL RETURN and this provision on official return apply only to what? SHERIFFS, PROCESS SERVERS. Sir, bakit ganun? Bakit may personal service ang court? Did you not ask yourself? Sir, bakit kasama sila dyan eh di ba ang nagseserve lang yung parties, sila-sila lang? For those of you who work in courts, you know what I mean because COURTS IN CIVIL CASES serve notices, orders and judgements/decisions - §9 RULE 13. That is why a proof of service includes official returns because courts in civil cases does not promulgate in the trial court, they do not promulgate. What do they do? They serve orders, notices, decisions and judgments; 3. AFFIDAVIT OF THE PERSON SERVING – this happens when there is refusal to receive. The party serving would be asked to prepare an affidavit. When you talk of ordinary mail, what is the proof? AFFIDAVIT OF THE PERSON MAILING showing the circumstances under §7. Finally, proof of service by registered mail. AFFIDAVIT OF THE PERSON MAILING and REGISTRY RECEIPT. However, class it does not end there. There is the duty of the person serving to file in court, submit or present the REGISTRY RETURN CARD. You will have to submit to the court the registry return card. What if in the bar exams class you were given this scenario, the registered mail was never received but the document was returned to the sender, can it happen? YES! Change of address, the addressee cannot be located the document

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will be returned. Have you served? Not yet. How will you prove to the court that you have served? You will have to submit NOT ONLY an affidavit, NOT ONLY the receipt but also the document including the return card, the document itself that was returned plus a certification from the postmaster on the reason for the return. Maliwanag yun ha! So, you will have to add something else when you talk of a returned document of registered mail. You have to file the registry return card plus the document returned plus you have to get a certification from the postmaster for the reason of the return. Are we clear? Now my last item here is, SUBSTITUTED SERVICE, as distinguished from SUBSTITUTED SERVICE IN SUMMONS. Ok! Sir, alam ko lang na substituted service eh yung ano , yung sa summons. Is there substituted service IN FILING? YES! That is §8. So we will compare. When we talk of substituted service in RULE 13, it means that there were efforts to serve it either personally and by registered mail but there was failure to serve. So what do you do? You file it and submit it in court. Are we clear? You should have made efforts to serve it personally and to do it by registered mail but for some reason it was not served. You will have to get the document and submit it to the court, with an explanation for that reason. That is what you call substituted service. But substituted service of summons is different. Do you follow? Substituted service of summons means that the person who should have received it is not available to receive it and there what you call impossibility of personal service and for that reason if there is impossibility of personal service. To whom should you give it? To whom should you serve it? In his house: to a person of suitable age and discretion residing therein. Take note of that, residing therein. He could be your uncle who is old, he could be someone more than 18 years of age but he is a transcient, he was there to stay overnight in your home – that is not proper substituted service. If you are to serve by substituted service in the office, you are to

leave to whom: to a person in-charge thereof. So you will see it is different. RULE 13 – Substituted Service vs. RULE 14 – Substituted Service. Now, let us see another difference. Personal service in RULE 13, what does it mean? When you talk of personal service in RULE 13 it means: 1. actual handing; 2. you leave it in his home to a person of suitable age and discretion, residing therein. Sir, parang mali?! YES! That is personal service under RULE 13 because that is service of PLEADINGS and others documents; and 3. by leaving a copy to a person incharge of the office.

On the other hand, let us look at SUMMONS (RULE 14) – Personal service is what? By giving or tendering of course he should receive, but it could be tendered but there is refusal that is different. It should have been given to him personally, the rest is SUBSTITUTED. So in summons, when you talk of personal it should be handed to him personally. It should be tendered. What if he refuses? Sir, anong gagawin mo? Eh you have to tender. Sir, paano ko gagawin? Ilalagay ko ba doon sa damit niya? NO. You just have to tender. If he is in his house, leave it in his house. But that is the work of who? THE SHERIFF that is the work of the sheriff. If there is something I would like to remind you class. If there is something that I would like to remind you, bear this in mind. Class, when we talk of summons we apply only what rule? RULE 14 and nothing else, tandaan niyo yan ha! Baka ang style mo eh chopsuey style ah pwede rin yung 13. Hindi pwede sir by analogy yan eh. HINDI PWEDE! Kapag RULE 14 on SUMMONS, it SUMMONS RULE 14. There is

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no priority in terms of application, you only apply RULE 14. Now, let me ask this question in connection with the case of Cada vs. Time Saver. The question is this, will the rules of court on service of summons apply to labor cases before the NLRC? This court declared in said case that technical rules of procedure are not applied in quasi-judicial proceedings only substantial compliance is required. In quasi-judicial proceedings before the NLRC and its arbitration branch procedural rules of summons are not strictly construed. So, the rules on summons in the rules of court as a rule do not apply in NLRC cases because they have their own rules. The next question that we will try to answer is the rules on SUBSTITUTED SERVICE. This was first laid down in the case of Manotoc vs. Court of Appeals and repeatedly cited. Sino yung Manotoc dito? Si Imee naman, sikat sila ano? Jurisprudence sila lagi ano?! Yung isa si Irene, venue. Ito naman yung substituted. The requirements were laid down in the case of Manotoc and cited in the case of Pascual vs. Pascual. Class bear this in mind. What do you mean by IMPOSSIBILITY OF PROMPT PERSONAL SERVICE to allow SUBSTITUTED SERVICE? It says, the party relying on the substituted service must show that defendant cannot be served promptly or there is impossibility of prompt service. Take note, not only impossibility of service but impossibility of prompt service. Yan yung sabi ng decision because previous decicions impossibility of service lang ang ginagamit lately impossibility of prompt service and reference should to be made to reasonable time. Of course we are talking about prompt service, what is reasonable time? According to the case, reasonable time is defined as so much time as is necessary for a reasonably prudent and diligent man to do the service, having a regard for the rights and possibility of loss, if any to the other party. So there should have been necessary

time as is necessary under the circumstances for a reasonably prudent and diligent man. Now, in this particular case sinabi pa nila ano yung reasonable time? For a sheriff, what is reasonable time? For the PLAINTIFF its seven days notice, it means no more than seven days since an expeditious processing of complaint is what the plaintiff wants. For the SHERIFF it is a period of 15 to 30 days because at the end of the month, it is the practice of branch clerk of court to require the sheriff to submit his return. So for a plaintiff, reasonable time is seven days, for a sheriff within a period of 15 to 30 days. How about class several attempts? Because when you say impossibility of prompt personal service, what do you mean by several attempts? So class is it once? Is it twice? It means at least THREE tries, at least three tries to serve preferably in at least two different dates, in addition the sheriff must cite why such efforts was unsuccessful. Let us move on to the next requirement, the next requirement aside from impossibility of prompt personal service is, specific details in the return. This is very short and very quick – specific details in the return. The requirement is, the sheriff must describe the manner by which or the circumstances he attempted to serve. He cannot just say, I went to the house and he was not there so I served to the wife. That was asked n the bar exams in 2003, tinanong yan! Ang sabi, very brief question the defendant was the husband and he was out of the house when the summons was served but the wife was in the house and so the sheriff served it upon whom? To the wife, is that proper service of summons? NO. Because there was no showing of impossibility of prompt personal service. Do you follow? He could have returned, based on this case Manotoc case and Pascual that says there should have been several attempts. When you say several attempts at least three tries at least on two different dates. Ayan! Sana yan ang mga itanong ano... Kaya lang baka hindi itanong.

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Now, this is another item. The third requirement is a PERSON OF SUITABLE AGE AND DISCRETION. Who is a person of suitable age and discretion? Alam niyo class kung babasahin niyo yung provision, the provision of the law only says person with suitable age and discretion right?! It does not say that the person who will receive summons should be of majority age tama?! Walang sinasabing ganun! Sabi lang suitable age and discretion. Could a 14 year old be of suitable age and discretion? YES! Could a 16 year old boy be of suitable age and discretion? YES! However, this case again defined what is suitable age and discretion. It said a person of suitable age and discretion is one who has attained the AGE OF MAJORITY. Akalain mo yun!? Akalain mo yun!? Ano!!! Malupet ah! So si Nene, yung helper mo, hindi pwede kasi wala pa siyang 18. Now let us proceed further, majority age and is CONSIDERED TO HAVE ENOUGH DISCERNMENT to understand the importance of summons. Not only of majority age, but should have enough discernment to know the importance of summons. That case even defined DISCRETION. Suitable age and discretion; ano yung discretion? They were not satisfied by simply saying discernment they defined discretion. They said discretion is the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right and wise maybe presupposed. Napakahirap naman nito. Do you follow? Papaano yun?! Responsible choice for which an understanding of what is lawful, right or wise maybe presupposed. So class again, majority age – reasonable discernment, right! Discretion – who is responsible enough to know what is lawful, right, wise ok! What else? Ito pa dinagdagan pa; Thus, the person must have relation of confidence to the defendant ensuring that the latter would receive or at least be notified of the receipt of the summons. All these things I am sharing with you, so that you will know the details of the case. Do you follow? And class, let me call your attention to

that main case of Manotoc that was cited in Pascual, what they said was relation of confidence. In this particular case of Manotoc, there was invalid substituted service of summons to Imee Marcos; service was made to the caretaker. Let us see how the Supreme Court addressed this ah, the caretaker of the unit of Imee Marcos and what does it say? This is how the Supreme Court declared, in this case the sheriff’s return lack information as to residence, age and discretion of Mr. Macky Dela Cruz. Aside from the sheriff’s general assertion that Dela Cruz is the resident caretaker. It is doubtful if Mr. Dela Cruz is residing with petitioner Manotoc in the condominium unit considering that a married woman of a stature in society will unlikely hire a male caretaker to reside in her dwelling. The realtion of confidence here class is not a personal relation but to make sure that the summons is received by the defendant. You see now the standard?! Finally the last requirement is A COMPETENT PERSON IN-CHARGE OF THE OFFICE. This is easier, who is a competent person in-charge? He is one managing the office or business of defendant such as the president or the manager and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons. Now, let us look at the case of Manotoc on trying to answer who is the substitute. There are two requirements: 1. recipient must be of suitable age and discretion; 2. recipient must reside in the house or residence of the defendant. Now, let me now ask this next question. This is the case of Philamlife vs. Breva, this is in connection to an amended complaint. The question here is; do you need to serve another SUMMONS in cases of an amended complaint? The case simply explained it to us in this

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manner. If based on the original complaint summons has been served on the defendants then that is a valid service of summons you do not need to issue another separate summons. If by virtue of the amended complaint there is a new set of defendants or there is a new defendant new summons should have to be served. If by chance, the original parties although summons has been served was not able to receive it or there was failure of service of summons you will simply request for an ALIAS SUMMONS. What is important is there is jurisdiction over the person of the defendant. In fact in this case they said it is not pertinent whether the summons is designated as original or an alias summons as long as it adequately served the purpose, the second summons according to the case was technically not an alias summons but more of a new summons on the amended complaint. Take note, so if there are new parties after the amendment you do not issue an alias summons, you issue an original summons. Let us now touch on the case of Mogul, this is important to illustrate to you what is PERSONAL SERVICE OF SUMMONS. Bibigyan ko kayo ng paraan para matandaan niyo ito kahit makalimutan niyo itong kaso na ito alam niyo ang sagot sa personal service. You remember the case of Kris Aquino and James Yap, wherein they try to tender it outside the coliseum, it was not wrong, that is the nature of personal service. WHEREVER YOU MAY BE FOUND, that is personal service hindi yung sa bahay. That was a misimpression that was actually the case of Mogul. When you talk of personal service of summons, where you may be found. Sir, kung papaano kung nandun ako sa hotel naggogoodtime-goodtime, eh doon ka nakita eh inabot sayo eh, personal service. Do you follow? What happened in this case? Ok! Bago ko ibigay sainyo yung facts let me give you the essence of personal service according to this case. The ESSENCE OF PERSONAL SERVICE is the handing or tendering of a copy of the summons to the

defendant himself. Remember it is the HANDING OR TENDERING of the summons to the defendant himself, wherever he may be found. That is wherever he may be, PROVIDED HE IS IN THE PHILIPPINES. Take note, so obligado kang i-hand kung saan mo siya Makita for as long as he is in the Philippines. Baka naman punta ho ako ng America, ay ibang provision yun class. It is another provision, it could be §14, 15 or 16 depending on the circumstances, iba yun! What happened in this case was the defendant spouses had a number of cases, eh nandun sila siguro nagtago-tago eh natunugan. When I say natunugan, the sheriff may have been informed that the spouses were in another court. Do you follow? May isa silang kaso, so doon sila inabangan ng sheriff. Ok! Anong ginawa? Inabot ng sheriff, ah sir ito po. Anong ginawa nung abugado? Sabin g client, meron siniserve. Sandali nga! Akin na yan! Nahawakan na nung cliente, tingnan ko nga. Ay hindi hindi hindi srve mo! Ibinalik nung abugado. The lawyer said; No! You cannot receive that you serve it in his residence. So ibinalik ng abugado. That is the question, was there proper service of summons? The Supreme Court said, YES, because it was already there handed to the defendant and the court said it was already accomplished when the operative act of handing a copy of the summons to the respondent spouses were made in person. Do you follow? The operative act is the handing of the summons. So they came up with their own and say that the court cannot acquire jurisdiction over the person of the defendants. In fact the court said, the instruction of the counsel for respondent spouses not to obtain the copy of the summons and the copy of the complaint under the lame excuse that the same must be served only in the address stated therein was a gross mistake. Alam niyo na kapag maging abugado kayo, kapag hi-nand sa cliente niyo. Siyempre kelangan magpasikat din. Eh nagpasikat yung abugado kaya nagkaproblema siya. Sabi niya WAG! Huwag niyong tanggapin akong bahala. Dapat dyan paliwanag mo yung

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cliente mo, eh tanggapin na ho natin dahil nandito na naiabot na eh . Take note ha! Once it is handed to you, wherever you are that is the operative act. Kindly take note that this case also said that you cannot go for a substituted service unless you have tried or attempted to do personal service. There should have been attempts or efforts to do it personally and if you fail only then can you do substituted service of summons. Now, let me touch on §14, 15 and 16. Di ko pwedeng hindi i-touch to. Importane yan! The first scenario under §14 is a DEFENDANT WHOSE WHEREABOUTS ARE NOT KNOWN OR AN UNKNOWN DEFENDANT. Now, you could serve summons by PUBLICATION. To be determined by the court. You have to effect service of summons by publication. Now, the pressing question is will that apply in personal actions or is that limited to action in personam or in rem or quasi-in rem. Class, I would like to be very clear. In the past, that was limited only to in rem and quasi-in rem. However, more recently the Supreme Court had made pronouncement considering that the provision of the law says, ANY ACTION, therefore now it includes in personam. §15 tells us a scenario of the DEFENDANT WHO DOES NOT RESIDE IN THE PHILLIPINES OR IS NOT FOUND IN THE PHILIPPINES. Do you follow? The provision enumerates the nature of cases or actions involved. That which involves: 1. the personal status of the plaintiff; or 2. a real property of a non-resident defendant; 3. or any other action which involves property, whether actual or contingent for as long as there is property.

How do you serve summons for a defendant who is not found or does not reside in the Philippines? 1. by PERSONAL SERVICE – Sir, what do you mean by personal service in the Philippines wala nga rito eh?! Eh di sa abroad!!! 2. by PUBLICATION AND REGISTERED MAIL AT HIS LAST KNOWN ADDRESS; 3. other modes as may be determined by the court. The most recent case that could apply to the other modes as may be determined by the court, if I recall accurately the title of the case is the Rodriguez case. It involves a nullity case involving the personal status of the plaintiff because the wife had abandoned him. He instituted an action for nullity. His laywer applied for extraterritorial service of summons but instead of granting his application. The court issued an order requiring that service be coursed through the DFA and that an answer should be made within a period of 30-days and coupled with publication. If you read the order carefully, it will not fall in any of the first two modes; it is neither personal nor strictly publication because that requires registered mail. So it was questioned, a judgment for that particular was questioned for being null and void. Sabi nung babae, ay null and void di naman niyo nakuha jurisdiction sa akin. Anong sabi ng Supreme Court, pwede yan! It falls in other modes as may be determined by the court. So careful kayo doon ha, even on foreign juridical entity they have that provision, there is a window – other modes as may be determined by the court. Now, the next section that I would like you to bear in mind is §16 – DEFENDANT/S

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TEMPORARILY ABSENT. Are they resident/s of the Philippines? YES! They reside in the Philippines. Those who are away for 3 to 6 months for 8 months but they continue to reside in the Philppines. How do you serve summons? In the same manner as I enumerated to you: 1. personal; 2. publication and service by registered mail in his last known address; 3. other modes as may be determined by the court. However, the Supreme Court likewise decided in a situation like this considering that he resides in the Philippines and if there are several attempts to serve it, there could be substituted service. Because he has a residence, he resides in the Philippines. Do you follow? There should be several attempts to serve it. Now, just three more points on this before I leave it completely. The first of the three is this; CAN THERE BE SUBSTITUTED SERVICE OF SUMMONS TO A NON-RESIDENT DEFENDANT? NO! It has been answered in the case of Gemperle vs. Shenker. Look at the provision on substituted service – to a person of suitable age and discretion residing therein; it assumes that a person has a residence. So a non-resident cannot be subject of substituted service. Another question, Sir! CAN THERE BE A SUBSTITUTED SERVICE FOR A CORPORATION? NO! Only those enumerated under §11 can receive summons for the corporation – president, general manager, managing partner, corporate secretary, treasurer or in-house counsel. That is a close list and cannot be expanded. Hindi mo pwedeng idagdag si executive secretary, hindi mo pwedeng idagdag si chief of staff. Only those enumerated, are we clear?! The last question of summons is this; HOW ABOUT SERVICE TO A NON-JURIDICAL

ENTITY? HOW DO YOU SERVE SUMMONS TO A NON-JURIDICAL ENTITY? Before I answer this question, this has related provisions in RULE 3 §15. Tingnan niyo! Could make a non-juridical entity a party? YES! You could sue them under the name by which they are commonly known. Ok! Because they have represented to the public that they are this and the public believe them but in truth and in fact they are not a juridical entity. Can they be parties? YES! Can the name by which they are publicly known be the defendant? YES! But there is duty on the part of the defendant in their answer to disclose their true names and addresses and that leads me to RULE 14. How do you serve summons upon them? You serve summons by serving summons to ANYONE of them. Isa lang sa kanila. Kung lima sila, isa lang sapat na or to any person in charge of the office. So I am done with that. Hindi pa tayo uwian, hindi pa! Meron pa! Let us now proceed to RULE 15. Let me touch on MOTIONS now. Motions na ako ngayon. What about motions class? First and foremost I would like you to bear in mind that there was an amendment of §7 in 2008. Sir ano yun? Eh di MOTION DAY, but class that is not truly an amendment if you look at it. It was an Office of the Court Administrator Circular of 2008. If you read the provision it still remains to be the same. That circular was just issued by the Court Administrator to underscore the importance of following that to the letter because motion day before that pronouncement was at the pleasure of the judge. At the pleasure of the judge – Lunes, Martes, Miyerkules kung kelan niya gusto dun yun. But with the 2008 circular he reiterated that it should be followed strictly so motion day is what a FRIDAY! It can only be moved to another day if a Friday is a holiday or a non-working day on the next business day, because class in the past this was a hot item because you will see the motion day of the courts you will check. Sometimes you go to court, you will be surprised; bakit walang

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hearing? And the staff will say hindi ho ngayon ang motion day naming sa Lunes, that is the rule. Now, still on motions, a motion is not a pleading. Although class a motion can seek reliefs, affirmative relief. It is not a pleading, it could only seek relief based on the fact presented on the motion. Class for easy recollection tandaan niyo lang yung §4, 5, 6, 7. Tandaan niyo yun, ok na kayo! Basta huwag lang yung number ang tandaan niyo ha! Dahil hindi niyo yun maisasagot, kailangan alam niyo yung nilalaman ng number. The first thing that I would like you to bear in mind is EVERY MOTION SHOULD HAVE A NOTICE OF HEARING. Ito class na susunod kong sasabihin ay alam ng bawat law student, di ko sinabing abugado bawat law student, that if you will not put a notice of hearing your motion is a mere scrap of paper and that notice of hearing should be directed to the other party. SHOULD ALL MOTIONS HAVE A NOTICE OF HEARING? Not all, if a motion will not prejudice the right of the adverse party. You do not need a notice of hearing. That is good for the bar exams. Ok! Gusto ko yan ang tandaan ninyo for the bar exams. But as a lawyer huwag niyong gagawin yan! Huwag niyong gagawin yan! Bakit?! Ah, hindi napag-aralan ko sa review. I believe that it will not prejudice the right of the... Sino nagsabi?! Do you follow? The other party will always claim it will injure me. It will prejudice me, even if it is an extension. So do not file a motion without a notice of hearing otherwise pasasakitin ang ulo niyo ng kalaban niyo. Kasi kukutkutin niya lang yan eh. Lalo na kung gusto nilang i-delay, kukutkutin yun. Ang dami kaso niyan, magcite yan ng sangkatutak na authorities. So you have to be very careful once you become lawyers. Make sure that all of your motions should have a notice of hearing but for your purposes in terms of the bar exams NOT ALL MOTIINS SHOULD HAVE A NOTICE OF HEARING, IF THE MOTION WILL NOT PREJUDICE THE RIGHT OF THE ADVERSE PARTY. The next item that I would like to tell you will be this, the motion should have been FILED AND SERVED at

least three days before the date of the hearing. So the magic number is three and 10. Oh! Saan ko nakuha yung 10? The three is it should have been filed and served at least three days before the date of the hearing and it should have been scheduled for hearing not later than 10 days from its filing. What is the consequence if you set it for hearing 30 days after? It is a mere scrap of paper; the court will not consider it. The motion will be denied; if it is a motion for reconsideration of judgment the judgment will become final and executory. Remember that three and 10! The three is it should have been filed and served at least three days before the hearing and it should have been scheduled for hearing not later than 10 days from filing. What is the OMNIBUS MOTION RULE? The omnibus motion rule is a rule that all available grounds for objection or defenses should be raised in the motion if available, otherwise it will be waived that is the omnibus motion rule. All grounds available should be raised, otherwise it is waived. Are we clear? Let us now move on to DISMISSALS. OK! Class kapag diniscuss ko yung dismissals, dapat dyan nagrereview kayo pasok na sa isip niyo...tsuk!tsuk!tsuk! ganun oh. May tunog pa sir ah!(Chuckles) Dapat! Hindi class kidding side kelangan yun may mental outline. Hindi yung, ano nga yang dismissal na yan?! Class maikli lang ang period to answer kaya kelangan kapag tumaas ang dismissal may sagot kaagad. Now, dismissals in CIVIL CASES can be MOTION TO DISMISS that is one. A motion to dismiss initiated by who? BY THE DEFENDANT – RULE 16. There is also what you call dismissals initiated BY THE PLAINTIFF – RULE 17: DISMISSAL OF ACTIONS. In that RULE 17 it also includes FAILURE TO PROSECUTE FOR AN UNREASONABLE LENGTH OF TIME. Ano pa yung pangatlo kapag dismissals? Ano pa? Sir wala na! Anong wala?! DEMURRER TO EVIDENCE – RULE 33, dib a dismissal din yun. Kapag na-grant it will be dismissed. We will discuss that first and I

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will discuss the equivalent in CRIMINAL CASES. Sir meron pala yan ah?! Meron yan! Ipaliliwanag ko sainyo. Now, let us start with MOTION TO DISMISS. Motion to dismiss is prompted or filed by the defendant under RULE 16 and there are number of grounds enumerated under the rule. I will just highlight a few: 1. unenforceable under the statute of frauds; 2. non-compliance with a condition precedent; 3. improper venue; 4. lack of jurisdiction over the subject matter; when you talk of lack of jurisdiction over the subject matter you are referring to the law that confers jurisdiction. So you have to look at RA 7691 or other law that confers jurisdiction; 5. lack of jurisdiction over the person of the defendant; when you talk of lack of jurisdiction over the person of the defendant you are talking of improper service of summons – was the summons properly served? 6. the pleading asserting the claim states no cause of action – I have discussed that, lack of legal capacity.

h. payment, waiver, abandonment or otherwise extinguished;

statute

i. unenforceable under the provision of of frauds.

So kapag dinidmiss na yan HINDI MO NA YAN PWEDE RE-FILE. Wala na! The rest if dismissed can you re-file? YES!!! Sir, saan niyo nakuha yan? Nasa batas yan eh! So those grounds cannot be a basis of re-filing, the rest yes you can. But sir, can I file a motion for reconsideration if the motion to dismiss was granted? Why not, you could do that. Now, the next question now that I would like to answer on motion to dismiss is one which was cited in a case. WHAT IS THE NATURE OF AN ORDER DENYING A MOTION TO DISMISS? IS IT A JUDGMENT ON THE MERITS OR IS IT AN INTERLOCUTORY ORDER? It is only an INTERLOCUTORY ORDER. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case as it leaves something to be done by the court before the case is finally decided on the merits. Neither can an appeal, neither can it deny a motion to dismiss which is subject of an appeal, unless and until a final judgment is rendered. Take note, a denial of a motion to dismiss is not subject of an appeal because it is an interlocutory order. In the same case, it enumerated three courses of action that a court can take on a motion to dismiss. The court can, either: 1. grant;

Now, having mentioned a number of them the next question that I would like to ask is this; once a motion to dismiss is granted, can you file the case? Can you re-file the case class? Once the motion to dismiss is granted, on certain grounds: as provide under §5 of RULE 16 referring to §1 of the same rule – f, h, i: f. res judicata or statute of limitations;

2. deny; or 3. order and amendment, but it cannot defer the resolution of a motion to dismiss. Another case I would like to touch on this time, still on motion to dismiss on presentation of

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evidence during hearing. This is the case of Republic vs. Carmel. Take note that should a case go to trial, the evidence presented during the hearing of the motion to dismiss shall automatically be part of the evidence of the party presenting the same. It will form part of the evidence presented in the case. So there is no waste of time. One item that has not yet been asked in the bar exams is the PRELIMINARY HEARING OF THE AFFIRMATIVE DEFENSES. Do you follow? Have you heard of that? Oh yes! Sir, hindi ko pa naabot sa basa yan eh. Maiintindihan ko rin yan. Preliminary hearing of the affirmative defenses, that is the last section of RULE 16. Let me explain this for the class. In the light class of the concerns of the Supreme Court that cases had been delayed due to motions for reconsideration on a denied motion to dismiss and eventually a petition for certiorari to the next level court. The Supreme Court figured out something and this is it – that instead of filing a motion to dismiss you could file an answer, you could file an ANSWER WITH AN AFFIRMATIVE DEFENSE and your affirmative defenses can be heard just like a motion to dismiss unless you have once filed a motion to dismiss and the grounds have been heard, there will be no hearing on the affirmative defenses. Can you follow? So you now, the provision of the law gave the party-defendant an option, you could file a motion dismiss alleging the grounds or you could file an answer with an affirmative defense. So you practically have an answer which joins the issues but at the same time the grounds for motion to dismiss available and the court can conduct a hearing, if the court is convinced that it should be dismiss after the hearing of the affirmative defenses, can it dismiss the case? YES! So if the court is convinced after the hearing of the affirmative defenses that it should be dismissed, the court need not wait for the trial of the case but could already dismiss the case, can act on it immediately. Now, considering I mentioned affirmative defenses. Affirmative defenses are

found in RULE 6. Because for the defendant it could either be negative defense: a total denial of the claims; or an affirmative defense. What is an affirmative defense? An affirmative defense is though hypothetically admitting the material allegations of the complaint – so sinasabi mo yun, practically admitting the allegations of the complaint but it will nevertheless prevent or bar recovery. I will give you an example because I will jump to another concept in relation to affirmative defenses. Let us say class Mr. A owes me money, he owes me Php500,000.00. I make a demand for him, it was due and demandable on May 30 and today it has not been paid. It was evidenced by a PN for the same amount I made a demand letter but still he ignored. So I filed a complaint against him and my first allegation that he owes me money, he admitted. He said, yes I owe you money. On the allegation that it was evidenced by a PN he said, oh yes I owe you money as evidenced by the PN. Third allegation, it is not yet paid until this time. It was due on May 30, he said, yes. What will you do to prevent or bar recovery? Can you prevent or bar recovery? If he says it is till unpaid. If he admitted the material allegations of the complaint, that will lead to what? JUDGMENT ON THE PLEADINGS – RULE 34, the answer does not tender an issue, it did not dispute the material allegations. To prevent or bar recovery he should have said “Oo nga, hindi ba ginawa mo na yang birthday gift ko?! Inabandon mo na yan!” Do you follow? He should have raised a defense that will bar recovery. Now on a last item on affirmative defense, my question is this – ARE YOUR AFFIRMATIVE DEFENSES LIMITED ONLY TO THOSE IN RULE 16 §1? NO! Any ground that would prevent or bar recovery could be used as an affirmative defense in an answer. Take note of this, as an affirmative defense in answer. Any ground or any defense that could prevent or bar recovery could be used as an affirmative defense, even if not enumerated in §1 of RULE 16. However for a motion to dismiss, it is only limited to those under §1 RULE 16.

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Let us move on to the next kind of dismissal. RULE 17 – DISMISSAL OF ACTION which prompted by the plaintiff. Kaya lang class tatlo to. Itong section dyan tatlo. So easily you should be able to remember this. Ok! Bear in mind class that dismissal can be effected by a plaintiff BEFORE AN ANSWER. Ok! Wala pang sagot the plaintiff decides, Naku! Dismiss ko na lang. Can he do that? YES! That is upon notice. The dismissal is without prejudice. Take note without prejudice. However, if it is dismissed for the second time on the same ground it is already with prejudice. Now may I ask you, what happens to the counterclaim? Class murmurs... it survives! Walang counterclaim, wala pa ngang answer eh! Di ba?! There was a complaint, the plaintiff decides to dismiss the case upon notice, there is no answer there is no counterclaim to speak of. The next scenario of dismissal by the plaintiff is once THERE WAS ALREADY AN ANSWER. Can the plaintiff still dismiss the case? YES! But this time UPON MOTION AND SUBJECT TO THE DISCRETION OF THE COURT. Before answer it is a matter of right upon notice by the plaintiff. Once there is an answer already it is upon motion and subject to the discretion of the court. Now, if the court grants that motion what happens to the counterclaim? This is important rule and this next statement of mine will not be found in the code because it is found in the case of Pingla which is doctrinal. That has vacated the BA Finace case which was the long standing rule. Ok! Liliwanagin ko ha! Liliwanagin ko! Lest I be misquoted! The present rule is this, once the main case is dismissed by the plaintiff, THE COUNTERCLAIM WHETHER COMPULSORY OR PERMISSIVE WILL SURVIVE. What is the present rule if the plaintiff moves for the dismissal of the case, what happens to the counterclaim of the defendant? It will survive. The question is, can he prosecute it in the main case or in a separate action? If he wants it to be prosecuted or maintained in the same action, he will have to manifest it within a period of 15 days the

dismissal is without prejudice, unless otherwise stated. The next kind of dismissal is not prompted by the plaintiff; it is BY THE FAULT OF THE PLAINITFF. Unreasonable delay in prosecuting the same, unreasonable length of time. What else? Failure to present the evidence in-chief. Tama ba ako? What is that? It only means failure to present your witness on direct examination. What else would cause the dismissal of the case? Failure to comply with an order of the court and failure to comply with the rules. Now, I will now slide and discuss on DEMURRER TO EVIDENCE. Demurrer to evidence in civil case, very simple. You are to file a demurrer to evidence in civil cases after the plaintiff has completed the presentation of his evidence. Take note, completed ha! Not rested, sa criminal yun! Pero pareho lang yun! Don’t worry pareho lang yun. When the plaintiff has completed the presentation of its evidence, the defendant could file a demurrer to evidence. Do you need leave of court? NO! Class civil, demurrer to evidence you do not need a leave of court, take note of that. Ang kailangan mo sa criminal pero bukas na yan! Baka maghalo. Now, if the demurrer to evidence is granted, take note what is the consequence? The case will be dismissed! What is your remedy? Can you appeal? YES! Because it is a final disposition of the case. If your demurrer to evidence is denied, can you file an MR? You could either present evidence or you could file an MR. If you are still not convinced despite the denial of the MR and that there is a grave abuse of discretion , you could file a PETITION FOR CERTIORARI. The next discussion point is one which distinguish civil from criminal. What is that? If the demurrer to evidence is granted in a civil case, of course the defendant was not able to present evidence and on appeal by the losing plaintiff the court reverses the case, will the defendant-appellee be still required to present his evidence? No more, the court can already render a judgment. That is a provison peculiar to only demurrer in civil case. So if your demurrer to evidence is

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granted and the plaintiff appeals to the next level court and the next level court sees that there is no reason for the demurrer to evidence and reverses it can it render a judgment without the evidence presented by the defendant-appellee? YES! The court will already render a judgment. I was late the next day... I hope I did not miss anything substantial. Let us now move on and touch on the case of Salazar vs. People. This is the case that enumerates what I told you about leave of court and let me quote this for you – In a case where the accused files a demurrer without leave of court, he thereby waives his right to present evidence and submits the case for decision based on the evidence of the prosecution, very clear! On the other hand, if the accused was granted leave to file a demurrer to evidence, he has the right to adduce evidence not only on the criminal aspect but also on the civil aspect of the case. Now, this leads me to another scenario. Let us that the demurrer to evidence is granted in a criminal case, WHAT HAPPENS TO THE CIVIL ASPECT OF THE CASE? Do you follow? Tapos na eh! Ang sabi natin dito dismiss ang kaso, the accused should have presented his evidence but what happens to the civil case? DOES IT MEAN THAT IT IS ALSO DISMISSED OR SHOULD THERE BE RECEPTION OF EVIDENCE FOR PURPOSES OF THE CIVIL ACTION OF THE CASE? This what the Salazar case said – If demurrer is granted and accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. Now, let me touch on the case of Radiowealth vs. Del Rosario. This is the consequence of REVERSAL OF APPEAL IN A CIVIL CASE. As I mentioned yesterday, the effect of a reversal on appeal of a grant of a demurrer to evidence is to allow the

court to render a judgment without requiring the appellee-defendant to present its evidence. Now, so we are done with dismissals in civil cases. Let me now give you a brief overview and outline of dismissals in criminal cases. There are a number of them. The first one is, if you still recall RULE 117 – MOTION TO QUASH. You file a motion to quash before plea or arraignment. What is the consequence of a motion to quash? The case will be dismissed. However, I would like you to take note that there are certain grounds wherein the court will not automatically dismiss, like if it does not constitute an offense, the information is defective the court can require the prosecution to amend the information. This is another example outside of the civil amendment that we mentioned yesterday, wherein the court can order an amendment without a motion to amend. Here the court can order the amendment of the information. So one is motion to quash, we will discuss motion to quash later on in more detail. The second one is PROVISIONAL DISMISSAL – RULE 117. This is a dismissal with the consent, with the knowledge or even prompted by the accused himself and with the provisional dismissal, can that case be revived? YES! Tandaan niyo yan ah kapag provisional dismissal. Sir, papaano ko ba nalalamang provisional? Eto mga example; your honor considering the repeated absence of the witnesses for the prosecution, I move for the provisional dismissal of this case. Do you follow? Can the case be revived? YES! Let us say that the prosecution has a difficulty looking for its witnesses and the prosecution will ask the court, can this case be dismissed in the mean time or until such time that I am able to locate some of the witnesses? What do you say counsel for the accused, is there any objection? No objection your honor. That is what? A provisional dismissal. Any kind of dismissal that is with the consent or prompted by the accused is a provisional dismissal. However class a provisional dismissal in the light of your new

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rules on criminal procedure can lead to a permanent dismissal. Can you follow? Can lead to a permanent dismissal yan. Sir, what do you mean by permanent dismissal? If the penalty, nasusundan niyo pa ba ako?! If the penalty for the offense exceeds 6 years, a lapse of 2 years would be required to make the dismissal permanent. Ok now! I have to call your attention on when the period will start to run. Kailangan alam niyo kung kelan nagstart to run. When will it start to run? If you look at the provision of RULE 117, it will tell you , it will start to run upon notice of dismissal to the offended party, that is clear in the provision of the law. However class, you will have to read it together with the Lacson case. That which involve Senator Lacson wherein the Supreme Court said, that there should likewise be a notice to the Public Prosecutor. Not only to the offended party but likewise to the public prosecutor and what is the reason for that? It is the public prosecutor who can revive the case. Therefore the period will not start to run unless the public prosecutor has been duly informed or has received notice of the dismissal. If the period of the offense carries a penalty not exceeding 6 years, the provisional dismissal will become permanent after the lapse of 1 year. Now, class let me ask you this, I will backtrack a little. I did mention a motion to quash, right? A while ago, does it mean class that if a motion to quash is granted; meaning the case is dismissed, can it be re-filed? YES! Except prescription, double jeopardy; meaning he has been acquitted, he has been convicted or that case has been dismissed without the express consent of the accused. Sir, how about lack of jurisdiction over the subject matter, it was filed in the RTC wherein it should have been filed in the MTC – once dismissed can you file again? YES! In the proper court. Do you follow? Lack of jurisdicition over the person of the accused, how do you acquire jurisdiction over the person of the accused? By a valid arrest or surrender. If the accused has not yet been arrested, the case could be dismissed. Can it be re-filed once the

court acquires jurisdiction? YES! Maliwanag ba clas? Iwant that to be very clear. So class in a sense, it is similar with a motion to dismiss – in terms of re-filing of its dismissal. What is the next kind of dismissal that you can think of? DEMURRER TO EVIDENCE IN CRIMINAL CASE – RULE 119 §23. What other kinds of dismissal can you think of in a criminal case? DISMISSAL ON THE GROUND OF SPEEDY TRIAL. Take note class, there are 2 kinds of speedy trial. Alam niyo bay un? Ah sir uhmmm...dalawa nga ba yun? Dalawa pala yun ano ha?! OO DALAWA YUN! One is SPEEDY TRIAL UNDER THE RULES ON CRIMINAL PROCEDURE. Listen to this: When should it be invoked? At anytime before trial. The second kind is SPEEDY DISPOSITION OF CASES UNDER THE CONSTITUTION. Now, ano yan class? When could you invoke it? At anytime for as long as the case is pending, you could invoke that. What is your remedy? So class ha, I am moving further. Ito lumabas na sa bar, baka hindi na itanong o baka umulit. Yung demurrer nga class the distinctions that I gave you a while ago, lumabas yan sa bar. Yan class ang tawag sa mga ganyang tanong de kahon. Ibig sabihin nun, yung mga yun ay dapat alam niyo. Walang kapatawaran kapag hindi niyo alam. Do you follow? Yun mga ganun dapat alam niyo! Kung sa basketball, sainyong mga naglalaro ng basketball. Yun ay parang free throw. Do you follow? Kung hindi mo ma-shoot yan, ikaw ang may kasalanan. Wala kang dapat sisihin. That was asked, distinguish demurrer in civil and criminal. So kapag alam mo masaya ka! Tapos pag labas mo mayabang ka pa! Kayang-kaya exam eh. Class ang iingatan niyo pag labas ninyo, huwag niyon i-aassume na yung reading niyo ng question ay pareho sa kaklase niyo. Di ba ganun?! At baka magtalo kayo. Tapos baka mag-away pa kayo. Tapos magtaka ka later on bakit siya hindi pumasa, ikaw pumasa. So class forget about it move on to the next examination. Now let us proceed. What are your remedies for violation of speedy trial

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under the constitution? HABEAS CORPUS! Because detention has been rendered illegal, that is on the premise that he is detained. How about violation of your right to speedy trial under the rules of procedure? Your remedies are CERTIORARI, PROHIBITION or MANDAMUS. Let us now proceed to another point. Ano pa yung dismissal? Meron pa ba? May naiisip pa ba kayo? Ah class? In criminal cases, there is also, similar to civil cases FAILURE TO PROSECUTE. You also have that in criminal cases. Now that we have discussed the kinds of dismissals both in civil and criminal cases. I will now proceed and discuss the case of Limaco vs. Shonan. Let us look at the 2 kinds of dismissal by the plaintiff. What are the 2 kinds of dismissal by the plaintiff? According to this case: 1. upon notice, a dismissal as a matter of right; 2. dismissal as a matter of discretion.

Let us now look at PRE-TRIAL. Ayokong sabihin if you have time, you should have time and I would like you to read the guidelines on pretrial and modes of discovery. It is there at the back portion of your code GUIDELINES ON PRETRIAL AND MODES OF DISCOVERY of 2004. There is also the JUDICIAL DISPUTE RESOLUTION RULE of 2006. Let me walk you through this briefly, before I give a case. What are the things that I would like you to consider on pre-trial? The first one is this provision on pre-trial requires the PLAINTIFF TO FILE AN EXPARTE MOTION TO SET IT FOR PRE-TRIAL once issues have been joined, it is the duty of the plaintiff to promptly file an ex-parte motion for pre-trial. The provision of the law uses the word promptly. However the guidelines on pre-trial and modes of discovery has supplemented this provision. The plaintiff should still file an exparte motion to set the case for pre-trial but that is AFTER THE FILING OF THE LAST PLEADING OR REPLY WITHIN A PERIOD OF 5

DAYS. Doon may period na. Do you foolow? Sa code walang period. Sir, ano magpprevail? Eh di syempre yung mas bago – 5 days! Eh papaano kung hindi nagfile ng ex-parte motion? What is the duty of the court? Under the guidelines on pre-trial and modes of discovery, IT IS THE DUTY OF THE CLERK OF COURT TO ISSUE A NOTICE OF PRE-TRIAL. If you look at the code you will not find such a provision. That is only found where? In the guidelines of pre-trial and modes of discovery. Considering I touch on the guidelines in relation to pre-trial. Let me now tell you the new form of summons. Baka mamaya itanong yan i-a, b, c. Sabi a. You have to answer within the period of fifteen days otherwise you will be declared in default; b. you have to file an answer within a period of 30 days; c. you have to file an answer with an affirmative defense in lieu of a motion to dismiss within the reglementary period of 15 days. Which is the right answer? C! That is in the guidelines. Now, the court persuades, it is not mandatory baka naman sabihin niyo, ay prohibited pleading pala ang motion to dismiss! NO!!! It is not a prohibited pleading. I want to be very clear. In ordinary cases a motion to dismiss is not a prohibited pleading. Liliwanagin ko! Baka mamaya sisihin niyo pa ako! Di ba sinabi sa bar review naming na it is a ... NO! IT IS NOT A PROHIBITED PLEADING. Except that you have a new form of summons and kindly take note based on the guidelines that summons should be served upon the defendant and this is not provided for in RULE 14 within a period of 1 day. A few questions has been asked in the bar exams in connection with these guidelines. Ano yung mga yun? Like the MOST IMPORTANT WITNESS RULE. Have you heard of that? Ano ba yung most important witness rule? You start with your presentation of witness in terms of their importance. Aba’y baka unahin mo yung nagpadala lang ng demand letter. Kasi ganun ang abugado nun because of lack of a witness. Sino nga bang pwede? The judge will ask, who is your witness the? Your honor! My messenger. Who is that? The one who delivered the

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demand letter. In the absence of that provision, kahit sino pwede mong dalhin eh. Anothe rule that you have to take note on this is ONE DAY EXAMINATION OF WITNESS RULE. Ibig sabihin sa isang araw tapos ka na sa isang testigo. The direct, cross, re-direct and re-cross should have been completed in one sitting of the witness. Pero sasabihin mo, sir parang... I work in court but I do not see that. That is the prerogative of the judge but the provision of the guidelines suggest that judges should strictly follow the same. We cannot blame judges because they have so many cases and they have to give time to all of those cases, otherwise baka sila ang ma-icomplain kung isa lang at isa ang pinepresent na testigo. So please take note of those. The next item that would like to touch on pretrial is this ABSENCE. The case of Alcaraz vs. Court of Appeals. What happened in this was that the lawyer was absent and the party was also absent. Who was present? The wife of the party. Maya dala-dala siyang medical certificate which was not notarized. Your honor hindi ho pwede yung asawa ko, yung lawyer ng asawa ko hindi rin pwede. What is the effect 0f absence? If the plaintiff was absent during pre-trial, what happen? The case could be dismissed. If the defendant was absent, the plaintiff will be allowed to present evidence ex-parte. I think I discussed with you yesterday the remedy of this situation. As in default, you recall? Your remedy according to the case of Saguid vs. Court of Appeals is to file an MR or to LIFT ORDER OF DEFAULT on the ground of FAME. In order not to suffer the consequence of absence, what can you do? You should send a representative, an authorized representative or you should give a legal or a valid excuse that the court should be satisfied with. In the absence of any, the consequence that I have mentioned to you will occur. I said if the defendant is absent, the plaintiff will be allowed to present evidence exparte. Now let us make a comparison. How about in default? If a party is declared in default

in RULE 10 will the plaintiff be allowed to present evidence ex-parte, in cases of default or can the court render a judgment at its discretion based on what the pleading may warrant or alleges? That is new in that provision, under the old rules presentation of evidence ex-parte may be availed by the plaintiff but today subject to the discretion of the court. Subject to the discretion of the judge he could already render a judgment based on what the pleading may warrant. Now, let me now touch on the case of Macasaet vs. Macasaet. Why am I citing this case class? I am citing this case because the provisions of RULE 18 on absence or failure to appear was adopted on an ejectment case or was made to apply in a RULE 70 §8. If you would note on ejectment cases, there is no similar provision on failure to appeal. What I mean by no similar provision is there is no excuse or there is no requirement of sending a representative. If the plaintiff is absent in an ejectment case, it will be dismissed. If the defendant is absent, the court can already render judgment. However, there is nothing in that provision in RULE 70 hat gives them a reason for an excuse or the right to send their representatives. In this case of Macasaet vs. Macasaet, the court said: The spirit behind the exception to personal appearance under the rules on pre-trial is applicable to preliminary conference in summary procedure. For the longest time, I recall hindi ko ito na-touch kahapon so babalikan ko, there has been no question on amendment to conform with the evidence. There were questions on amendment as a matter of right before answer and after answer with leave of court. But for the longest time there has been no question on amendment to conform to the evidence. This is in §5 of RULE 10. Kindly take note that there are 2 kinds of AMENDMENT TO CONFORM TO THE EVIDENCE: if there is no objection on the part of the other party. But before I give you the kind let me explain this to you. What do I mean by amendment to conform to the evidence?

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Ganito lang yun class, remember in your RULE 8 an answer is based on allegations, are evidence required? The answer is NO! Unless it is an actionable document. Therefore class in the course of the trial, what has been alleged should be supported by evidence and let me lead you to the definition of evidence. RULE 128 §1 – Evidence is the means sanctioned by the rules in a judicial proceeding to establish the truth as to a matter of fact. When do you present evidence? During trial. To illustrate to you more vividly let us say, my claim for sum of money is Php500,000.00 but in the course of the trial by presentation of invoices and other receipts I was able to show that my claim is for the amount of Php800,000.00 there is a discrepancy from that which was alleged and that which was established during trial. This is where that provision will apply; you could amend the pleading to conform with the evidence. Ito na yung 2 kinds. 2 kinds of AMENDMENT TO CONFORM TO THE EVIDENCE: 1. if the other party does not object, in that case there could be amendment of the pleadings to conform to the evidence even after judgment. Even after judgment that could still be amended; 2. If the other party objects, it is left to the sound discretion of the court. Moving further on pre-trial, can you still apply for DEPOSITION after pre-trial or you could only apply for deposition at anytime before pretrial? YES! Jonathan Land Oil vs. Mangundadatu, it is fairly settled now class. For as long as the action is pending, you could apply for deposition and if you will the Jonathan Land Oil case, you will see that they are already at the execution and there were certain facts that the court had to be informed of. So please take note of that.

Please take note also of the EFFECT OF FAILURE TO SUBMIT A PRE-TRIAL BRIEF. The effect of failure to submit a pre-trial brief is as if you were not present and therefore the consequences of non-appearance will likewise apply. Let us now proceed to INTERVENTION. Let me start with the case of Looyuko vs. Court of Appeals. This is not a new case but this is important because of its pronouncement. It lays the general rule. When can you intervene? Class ang kailngan niyo lang tandaan dito aside from pwede ka magcomplaint-in-intervention, pwede ka mag answer-in-intervention or you could be a complainant-in-intervention against the original parties, pwede rin yun! But more importantly you will have to take note that the period to file an intervention is at ANYTIME BEFORE RENDITION OF JUDGMENT IN THE TRIAL COURT. That is by express provision of §2 of RULE 19 – at anytime before rendition of judgment in the trial court. I would like to be very clear with this THERE IS NO PARTNER PROVISION OF INTERVENTION IN THE COURT OF APPEALS OR EVEN THE SUPREME COURT. Even if you look at the provisions of RULE 46 to 55, you will not find a similar provision. Why? Because only trial courts are allowed by law. Eh sir ba’t ganun? However, appellate courts have reasonable judicial discretion to allow, not under the provision but reasonable judicial discretion to allow an intervention. Now, so the GENERAL RULE is before or during trial you could intervene is there an EXCEPTION according to the case of Looyuko? YES! In the Director of Lands vs. Court of Appeals, intervention was allowed even when the petition for review of the assailed judgment was already submitted for decision in the Supreme Court. Another case in Mago vs. Court of Appeals, the court granted intervention despite the case being final and executory. Eh sir ba’t ganun? Final and executory na may intervention pa? What is the key? What will allow you to

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intervene even if judgment has already been rendered? According to this case, it must be noted that in both this cases intervenors were INDISPENSABLE PARTIES. So INDISPENSABLE PARTIES CAN INTERVENE EVEN AFTER THE RENDITION OF THE CASE. Class kindly take note that there should be what? The INTERVENOR SHOULD HAVE A LEGAL INTEREST. When I say legal interest it should be material and actual such that if you are the plaintiff, you should have suffered some injury or damage. Let me ask you this, is a mortgage lien a legal interest? Let me give you the facts of this case, ano bay un? Eh, nangutang eh! Ano yung sinangla? Ano yung ginawang security? Yung barko, ang pangalan pa ng barko ay Felipa. It was used as a security, well just like any other loan if it reaches the court it is unpaid. Hindi nabayaran ok! Now, there was extra-judicial foreclosure on the vessel. In the meantime the crew members filed in court an action to recover the interest and unpaid wages based on the preference of credit. So nataranta yung nagpautang, nataranta yung bangko. Anong ginawa nung bangko? Doon sa court case wherein there is preference of credit na mas superior yung interest nung mga crew, what did they do? They filed a complaint-in-intevention. The bank a complaint-in-intervention based on what they claim to be a mortgage lien. Sabi nila, meron ho kaming mortgage lien dyan eh so pwede magintervene. Anong sabi ng court? A MORTGAGE LIEN IS NOT SUFFICIENT, if you are a plaintiff-inintervention you should have your own cause of action and for that reason you should have suffered some damage or injury by reason of the fact. Similar case class, let us look at this question: if the principal complaint has been dismissed what happens to the complaint-inintervention? Can it stand alone just like a counterclaim? Do you follow the same thing in intervention? The answer is NO! According to the court, intervention is merely ancillary and supplemental to the existing litigation and never an independent action, the dismissal of the principal action necessarily results in the

dismissal of the complaint-in-intervention. Take note also of another case in intervention, the case of Lim Po vs. Court of Appeals. This is important because of the pronouncement of the court that intervention will only be allowed aside from existence of legal interest, if it will not undue delay or prejudice the rights of the original parties to the case. If it will unduly delay and prejudice the rights of the original parties to the case, the court will not allow intervention. Let us now proceed to a discussion on SUBPOENA. What about subpoena? Class of course I would like you to bear in mind that there are 2 kinds of SUBPOENA: 1. subpoena AD TESTIFICANDUM, to appear and testify; and 2. subpoena DUCES TECUM, to appear and bring the documents in court.

The next case that I will touch on is Collado vs. Bravo. The question is this, the clerk of court issues a subpoena when there is no pending case. Can the court issue a subpoena without a pending case, just to act as a mediator or as a conciliator for a pending dispute? NO! Absent any action a subpoena cannot be issued. Hindi yun basta...ah i-susubpoena kita! Hindi pwede yun. But of course class other investigative bodies could issue a subpoena. The Ombudsman could issue a subpoena, the DOJ could issue a subpoena, the NBI issues a subpoena, congress in aid of legislation could issue a subpoena. Can they issue a subpoena? YES! Can the Supreme Court or the Court of Appeals issue a subpoena? YES! Can a judge issue a subpoena in connection with the application for a deposition? YES! Please take note of that! I think more importantly you have to take note of this, how to quash a subpoena? How about how do you quash a subpoena duces tecum? It is what? Unreasonable,

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oppressive, failure to tender kilometrage, failure to tender witness fees, failure to describe the items to be brought that is in §3 and failure to tender the cause of production, duces tecum eh! Ad testificandum, you are not bound thereby. You are not bound! Hindi ako dapat na pinipresenta. I still remember the question in the bar exams where the examiner was Justice Bersamin that question was a bit tricky because it touched on something which was privileged. Medjo ang tanong doon eh pwede bang i-subpoena yung abugado na naginitial investigate doon sa kaso ng cliente niya. Can you move to quash it? Are you bound? Immediately you could say I am not bound because of the privilege. You could invoke that. When you say I am not bound thereby, you have to show the reasons why you cannot be compelled to sit at the stand. Another important item that I would like to take note is the 100-kilometer distance of the witness to the court where the hearing is to be conducted. Kailangan tandaan niyo yan 100 ha hindi 60. May libro kasi sinsabi 60 luma yun! Why? What is the importance of the witness within the 100kilometer radius from the place where the hearing is to be conducted? If a subpoena has been issued and he fails to appear the can use its compulsive process. What do you mean by compulsive process? The court can hold him in contempt. Is that direct or indirect contempt? Sir, mabigat na tanong yan ah! Who says A. Direct contempt; B. Indirect contempt; C. None of the above. That is indirect contempt, that is §3 of RULE 71. If I were you class I will memorize RULE 71 §3, it comes in handy; failure to comply with the order, writ of process of the court, when you made representations to be lawyer where in fact you are not, any act of disobedience outside of direct contempt, when possession had already been divested and you surreptitiously returned or took possession, failure to comply with a subpoena issued by the court – that is INDIRECT CONTEMPT. EH sir, ano yung DIRECT CONTEMPT. Madaling-madali yan class! Yan ah, tinuro ko na sainyo para alam

niyo. Ang direct contempt class napakadali. What? Galitin mo lang si judge. Galitan mo lang, ganun! Inisin mo si judge. You could be held liable for direct contempt because the magic phrase is “IN THE PRESENCE OF OR SO NEAR THE JUDGE”. Ok! Kung katabi mo siya sa sinehan, hindi ka macocontempt. Sabihan mo: judge, mali-mali desisyon mo! Hindi ka macocontempt ok! Eh bakit?! Sir we are near each other. It should be in the presence or near the judge while performing his judicial function. In one case decided by the Supreme Court in the Ibay case. Alam niyo ba yung kasong Ibay? Nagamit yung parking! Ginamit yung parking niya. Aba’y nagalit. Yun pala staff ng city hall. Eh syempre magagaling yang mga staff ng city hall. Hinahanap siya ngayon ni judge. Pagkapark niya umalis na siya, umuwi. Kasi nagpadala si judge ng notice: you should appear in the afternoon and explain why you should not be held in contempt of court. Kita niyo nagulat kayo oh! Eh siguro sa galit niya explain why you should be not be held in direct contempt of court. Eh syempre hindi yun umattend... Kinontempt niya! Siya ngayon ang dinemanda. Anong sabi ng court? The act of the judge was improper he should not have declared the person in contempt. So direct contempt is in the presence or so near the judge. In his presence, let us say the person is in the courtroom and he was asked ok you sit on the stand, you refused! Could you be held indirect or direct contempt? Direct! The court says, you raise your hand and be placed on oath, you refused. Ayoko! Could he be placed in contempt? YES! Direct contempt. So class that is one compulsive process, if you are within the 100-kilometer radius you refused to appear. You could be placed in contempt – indirect contempt. Second is what? Your appearance can be compelled by an ARREST. The arrest is what you call a BENCH WARRANT, hindi yan warrant of arrest. That is a bench warrant, it is a warrant issued upon the authority of the court. Ang warrant of arrest

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presupposes that there is a pending criminal case that is why there is a warrant of arrest. Now let us now proceed and discuss certain items on deposition. I still remember the question on whether there could be DEPOSITION ON A SPECIAL PROCEEDING CASE? YES! Ok, tinanong na yan sa bar. Can there be deposition or modes of discovery in a criminal case? YES! So class every year questions have been asked on deposition. Titingnan natin ngayon kung magtatanong, pero class multiple choice kelangan nila ng tanong. Madami eh! So kung kayo ay di pa naniniwala sa forecast na ito, basahin niyo na yan! You are not in my regular review, this is again, critical. So yung critical lang din didiscussin ko, but kidding aside class you will need it. Ang feeling may mga itatanong dyan and for the last 3 years there have been questions on deposition, para kapag minultiple choice kayo alam niyong sagutin. Let us look at the case of Cariaga vs. Court of Appeals, this is a good case because it gives us an example of a testimony or deposition at a former proceeding. You know that? I will give you this example before I discuss the case, this is in connection with the provision on evidence as an exception to the hearsay rule. RULE 130 §47 – DEPOSITION ON EXAMINATION OF A WITNESS GIVEN IN ANOTHER TO BE USED IN THE PRESENT PROCEEDING. What is the requirement in that provision? So madaling salita class imaginin niyo ako yung judge dito sa husgado na to may ipipresenta ngayon na testimonya but the witness to be presented is unavailable. Do you follow? Because according to §47, the person is dead or unavailable, that is why it is an exception to the hearsay rule and the requirement there class is, THERE SHOULD HAVE BEEN AN OPPORTUNITY TO CROSSEXAMINE, not actual cross-examination but you should have been given an opportunity. Kapag tinanong ka magcross-examine ka? Ay, hindi na ho! Ok na! Ok na yun, there was an opportunity. What is prohibited is that you were not even given the chance to cross-

examine. But that was not the question in the case of Carriaga vs. Court of Appeals, the question in the case of Carriaga vs. Court of Appeals was the question of unable to testify. Ano ba yung ibig sabihin nung unabale to testify? And class this has a partner provision in RULE 115 §1(f) tingnan niyo on rights of the accused. Di ba? The witness is dead or unavailable. Do you get me? Deposition or examination in another proceeding can be used for as long as there is an opportunity to cross examine. Nakita niyo RULE 115 §1(f)? So class, in this case they touch on bought §47 RULE 130 and RULE 115 §1(f). What did the court say? They cited the case of Tan vs. Court of Appeals, that ruled unable to testify for that matter unavailability does not cover the witnesses who were subpoenaed but did not appear. Ok! Unavailability or unable to testify does not cover situations wherein witnesses have been subpoenaed, pinadalhan ng subpoena pero hindi umappear. Hindi kasama yun sabi dito. It may refer to inability of proceeding from a grave cause, dapat daw for a grave cause almost amounting to death as when the witness is old and has lost the power of speech it does not refer to tampering of witnesses. Ok, so kelangan there should be a good reason or grave cause for the unavailability. Referring now to the case of Carriaga, the court said: the records reveal that witness Carriaga was subpoenaed only once and did not appear to testify in the criminal case against petitioner. Considerably, this witness was not deceased or out of the Philippines. Do you follow? He was not deceased or out of the Philippines. Can this be witness be categorized as one that cannot be found despite due diligence, unavailable or unable to testify? The answer was NO. DO you follow? Are we clear? The answer was NO! Mere sending of subpoena and failure to appear is not sufficient to prove inability to testify and more particularly class in this case the Supreme Court said, sandali lang this is a criminal case. Do you follow? And it refers to the right of the accused and therefore it should

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be read in the context on how the constitution gave it to them. Now, if you will recall I mentioned the case of Jonathan Land Oil vs. Mangundadatu a while ago. Let me quote to you the declaration of the court. Depositions may be taken at anytime, after the institution of the action or whenever necessary or convenient. There is no rule that limits deposition taking only to the period of pre-trial or before it. No prohibition against the taking of deposition after pre-trial. Are we clear? There is no prohibition for taking of deposition after pre-trial. Now I will give you a... Before i move further on the cases on deposition. Let me just give you an outline of RULE 23. Class huwag kayong pupunta ng bar exam ng hindi niyo nabasa ang RUKE 23. Ok?! O di sir RULE 23 lang ang babasahin ko? Eh bahala ka!hehehe... Hanggang 29 basahin niyo ah! Pero yung RULE 23 kasi class is the heart of it all. If you know RULE 23 chances are you know deposition. Let me help you outline the provision. How many sections do you have there? You have 29 sections! Is that right? Madali lang yan class, ganito lang ang pagoutline nyan, from sections 1 to 14: GENERAL PROVISIONS; meaning it applies to both ORAL DEPOSITION AND WRITTEN INTERROGATORIES. Ok yang lahat ng yan so ienumerate ko briefly ha. Ano ba yung mga yun? Hindi ko lalahatin but I will highlight it. Ano yung mga kailangan dun? Of course both applies to oral and written. How to initiate or commence? Before an answer you file what? A MOTION. Again, BEFORE AN ANSWER HAS BEEN FILED after the institution of the action. You file a MOTION TO TAKE DEPOSITION. AFTER ANSWER you file a NOTICE TO TAKE DEPOSITION. Kapag kayo ay nalilito tandaan niyo kabaliktaran lang to ng amendment. Kabaliktaran lang, before answer – motion. Do you follow? After answer – notice, that is in §1 – How to apply. Ito class it comes in handy kasi yung mga nakaraang questions on deposition revolves around this question – What is the coverage? Kapag alam mo to madali

kang maka-wiggle out at madali mong maconclude yung sagot eh. What is the coverage? What matters could be subject of deposition? ANY MATTER FOR AS LONG AS IT IS NOT PRIVILEGED. Ok! Any matter for as long as it is not privileged. Ok! Of course it says relevant mater, hindi naman yung walang ka torya-torya di ba!? Relevant matter for as long as it is not privileged. Now, let me touch on privileged. Ok! Para naman may tinatakbuhan tayo. What do you mean by privileged? This is covered by RULE 130 §24 of the rules on evidence. Ok! Privileged, I will not discuss that in details but I will enumerate to you: 1. attorney-client; 2. doctor-patient; 3. penitent and priest; 4. husband and wife; 5. public officer in relation to the state; 6. secrecy of bank deposit; 7. non-disclosure of who you voted for, except in election fraud cases; 8. non-disclosure of trade secrets; 9. non-disclosure of result of census. These are examples of privileged communications. Do you follow? So, they cannot compel you to testify in the same vain or in the same manner, they cannot compel you to be a deponent. Are we clear? They cannot compel you to be a deponent. Ano pa, general provisions? Class, THE FACT OF TAKING OF DEPOSITION DOES NOT MEAN THAT YOU ARE MAKING THE DEPONENT AS YOUR WITNESS. Take note of this, the fact of taking, kapag kinuha mo it does not mean that you are

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making him as your witness. But class the very moment you, the magic word, USE A PORTION you practically open it for examination. Do you follow? The mere fact of taking, you are not making him as your witness but the fact of use of a portion of deposition allows the other party to examine the entire deposition. Class kung ako sainyo kailangan kabisado ninyo ang §4, kailangan kabisado niyo yan! Kailangan kabisado niyo ang §4. Deposition can be taken for ANY PURPOSE.

and in RULE 25, the same uses. Ok now, the next item that I will touch on is BEFORE WHOM SHOULD DEPOSITION BE TAKEN. Dito wala pang tanong. Before whom in the Philippines? 1. before ANY JUDGE; 2. before a NOTARY PUBLIC; 3. before ANY PERSON WHO COULD ADMINISTER OATH AND STIPULATED UPON BY THE PARTIES under §14.

Deposition could be taken if the court finds that: 1. the witness is dead; 2. the witness resides more than 100kilometers where the place of trial is conducted. Please take note class of the 100. If you are within the 100-kilometers, your appearance could be compelled by a subpoena. You could be arrested. You could be place in contempt. More than 100kilometers from the place where the hearing is to be conducted, there could be no compulsive process but your remedy is to take his deposition;

The next class, foreign countries before where?

3. that the witness is unable to testify because of age, sickness or infirmity; 4. that the party offering the deposition has been unable to procure attendance of the witness by subpoena; meaning the witness’ appearance cannot be procured by subpoena; and 5. other exceptional circumstances.

Class, you have to take note of that. Take note that the use of deposition under RULE 23 is the same in RULE 24 and in RULE 25. Ok! In RULE 24

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1. consul, consular officer, secretary of legation; itong susunod itinanong na 2. through letters rogatory or a commission – what is a LETTERS ROGATORY – a letters rogatory is a communication from one judicial authority to another, yan ang letters rogatory. That has been explained in the case of Dulay vs. Dulay, it is a communication with one judicial authority to another and IF THE DEPOSITION WILL PROCEED WHAT RULES WILL BE APPLIED? The RULES OF THE FOREIGN COUNTRY on taking of deposition. How about COMMISSION? Commission is the appointment or naming of a person before whom deposition is to be taken by the court in the Philippines and obviously what rules will be followed? The rules in the Philippines; and finally 3. any person auhtorized to administer oath but should be



stipulated by the parties consistent with §14. Ok now, let us look at DISQUALIFICATION. What about disqualification? If the deposition officer has: 1. financial interest; 2. relationship to the party within the 6th degree of consanguinity or affinity; 3. relation with the counsel within the same degree of affinity or consanguinity. Ok let us look at...class the case of! Ok! Baka gulatin kayo nito: WHEN DO YOU USE A MOTION TO SUPPRESS DEPOSITION? That is in RULE 23 §29, I think that is in the last subsection. Motion to suppress deposition, you use a motion to suppress class, take note of this if the procedure for the taking of the deposition according to §17, 19, 20 and 21 was not followed. I leave that to you, basahin niyo yun ha 17, 19, 20 and 21. Sir ano ba yun? Inoutline lang nun kung paano kumuha ng deposition. Kapag hindi sinunod yun, expect a motion to suppress deposition. The case of Sales vs. Sabino. Ok! What about this according to the case of Sales vs. Sabino, while depositions may be used as evidence in court proceedings, they are not generally meant to substitute for the actual testimony in open court of a party or a witness. Although you could take deposition, you cannot make it as a substitute for presenting the witness on the stand. However class, if the uses that I enumerated are present, then you could use it even without presenting the witness. Obviously, if the witness is dead you cannot present him anymore. Ok now, let us now look at this. Let me now touch on before I wind up on deposition, I still have 15 minutes before the break, your break is 10:30. Ok! Nakita ko sa relo niya eh. Is that right I have

15 minutes or I have 30 minutes...Parang gutom na kayo eh. Relax lang kayo. What I intend to do class, honestly, is to be able to capture it until criminal procedure and evidence. The highlight of those, I intend to capture it. If I could touch on a little of specpro I will do that but I touch on something already yesterday. I think this is the bulk because in the bar exams 5% is specpro eh. Nakita niyo ba? 5% eh, doon sa coverage nung remedial. Hindi ko sinasabing huwaqg niyong basahin ah, ang ibig kong sabihin, considering my time is very limited with you. I have only 12 hours so I would like to cover until evidence. Specpro bahala na kayo! Hindi...hindi naman! Pwede mong basahin yun may reviewer naman kayo dun eh but I intend to cover until evidence. Ok! I will highlight it. Now let me now touch on DEPOSITION BEFORE ACTION. Take note that is perpetuation of testimony. Deposition before action, that is perpetuation of testimony and the other kind is DEPOSITION PENDING APPEAL. Let us distinguish class WRITTEN INTERROGATORIES UNDER RULE 23 and WRITTEN INTERROGATORIES UNDER RULE 25. What is the difference?

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1. written interrogatories under RULE 23 CAN BE DIRECTED BEFORE ANY PERSON, HE COULD BE A PARTY OR NOT TO THE CASE. On a RULE 25 written interrogatories to parties, IT IS DIRECTED ONLY TO A PARTY TO THE CASE, THE ADVERSE PARTY. Maliwanag ba yun?! Ok! Yung RULE 23 written interrogatories kahit kanino, kahit sino for as long as relevant. RULE 25 based on the title it could only be directed to whom? To an adverse party, are we clear?!; 2. written interrogatories under RULE 23, you will have to go through direct, cross, re-direct and re-cross.



Do you follow?! On written interrogatories under RULE 25, you do not have direct, cross, re-direct and re-cross. What do you have? Only a litany of questions. Only a set of questions to be answered by who? The adverse party. Ok! It is different in that line. Class, it is different in that line.

Now, let me now end on this point on deposition on 2 items, just on 2 items. The most common mode of discovery and has not been asked in the bar exams is request for admission. Ok! REQUEST FOR ADMISSION – that is in RULE 26. Ok! This is a mode of discovery that could be APPLIED FOR AT ANYTIME AFTER ANSWER. After issues has been joined. Take note of that, it could only be applied for after answer, a request for admission and please take note you are to request for: 1. admission of a material or relevant fact; and 2. a genuineness and due execution of the document. Why? What is the consequence if you cause the admission of genuineness and due execution of a document? If that document is admitted, you do not need to authenticate the document anymore consistent with RULE 130 §18-33. You do not need to authenticate, inamin niya eh. Do you follow? We are not talking of best evidence, we are not talking of parol evidence, we are not talking of that, WE ARE TALKING OF AUTHENTICATION. If it is admitted, wala na. You do not need to go through the process of authenticating, whether it is a public document or a private document. And please take note class, IF YOU FAIL TO OBJECT TO A

REQUEST FOR ADMISSION IT AMOUNTS TO AN IMPLIED ADMISSION and please take note that a REQUEST FOR ADMISSION IF ADMITTED AMOUNTS TO A JUDICIAL ADMISSION consistent with RULE 129 §4 – any admission in court during its pendency is a judicial admission. Can you change a judicial admission? YES. If it was MADE THROUGH PALPABLE MISTAKE OR THERE WAS NO INTENTION TO MAKE SUCH AN ADMISSION.

The last two items that I would like to touch on this is this one: PRODUCTION OR INSPECTION OF BOOKS, PAPERS AND DOCUMENTS. OK! Please take note that this provision covers two possible orders, not one. Two possible orders, what is that? FOR PRODUCTION, INSPECTION, EXAMINATION OF BOOKS, PAPERS AND DOCUMENTS INCLUDING PHOTOGRAPHIC. It also includes AN ORDER TO ENTER THE PREMISES OR TO LEAVE THE PREMISES. So it is not limited to books, papers and documents. You could ask for inspection of real properties consistent with RULE 27 and let me call your attention to this problem. Class, if you produce or if you received a notice to produce or a motion to produce be careful. Ok! Be careful, you might be of the impression that it is a RULE 27 provision that will apply or it is a mode of discovery only. Ok! Be careful...why? Because that may be a prelude or a preliminary to a presentation of secondary evidence, where the original is in the custody of the adverse party. Do you follow? What are the requirements for presentation or to compel the adverse party to present the original in his possession?

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1. there should have been a notice to produce;



2. you should establish that the document actually existed and the document is in the possession of the adverse party; and 3. despite notice to produce he refuse to produce, you can now present secondary evidence.

You can now present secondary evidence which could be what? It must be presented in the manner as enumerated under §5 of RULE 130. 1. a copy; 2. recital in some documents; and

authentic

3. testimony of the witnesses.

Ok! Giding pa ba kayo? Ok sige! Now, let us now proceed...ay hindi pa pala! Isa na lang. Yung PHYSICAL AND MENTAL EXAMINATION. Remember this ah! Physical and mental examination. Ito ang gusto ko lang tandaan niyo. This mode of discovery COULD ONLY BE USED IF THE MENTAL OR PHYSICAL CONDITION OF THE PARTY IS SUBJECT OF THE CONTROVERSY. Do you follow? Aba’y kung hindi siya subject of the controversy, do not use this. Do not file an action for some of money and for mental examination of the defendant who refuses to pay, you cannot do that. Do you follow?! Where the mental or physical condition of the party is in controversy. Ok! And my last point now as I end with this is class, please take note that kapag ito itinanong. Ang pinakamahirap na pwedeng itanong dyan sa RULE 28 is itong discussion na to. Class, everyone wants something for free. Di ba?! Sino bang ayaw ng free, kapag alam niyong free andun kayo. Nakapila kayo! Libreng kape, libre sa mall...Ganun! gusto natin libre but in this provision class be very careful. Why? Take note, let us say imagine that I am the person

examined. Ok, ako yung ineksamin. Ineksamin ako class, ngayon ang ginawa ko humingi ako. If I ask a copy of that examination it opens the door. What? It waives all of my privilege, they can now...humingi ako! Pahingi naman nung examination ko. The other could now ask copies of my examination, whether previously or subsequently taken. If I refuse to do so and I present the doctors who made the previous examination, their testimony will be rendered inadmissible or they will not be allowed to sit on the stand. Do you follow? This is a consequence of asking a copy of the examination. If I am the person examined, my mental condition was examined and I asked a copy, that opens the door. The other party can now ask all my previous and subsequent examinations and if I present my doctors, their testimony could be stricken out or could be rendered inadmissible. Ok now, let me end this session. Hindi ito ah, hindi pa uwian. Let me end this session by comparing, let me end this session... recall this was asked of me by a lawyer and it was a very good question, the question was DO WE FOLLOW THE RULES ON DEPOSITION ON RULE 23 AND APPLY IT IN CRIMINAL CASES? Do you follow? Yan ang tanong. Do we follow the same procedure as in RULE 23 in criminal cases? The answer is...anong sagot? RULE 23 ba ang nag-aapply? What applies is in the nature of deposition is RULE 119 §12, 14 and 15. Tingnan niyo yun. CONDITIONAL EXAMINATION OF WITNESSES FOR THE ACCUSED AND CONDITIONAL EXAMINATION OF WITNESSES FOR THE PROSECUTION. Tingnan niyo yun. Sir bakit yun?! Eh criminal yan eh. Sir hindi ba pwede yung deposition before action? Ano ka!? GOODLUCK!!! How can you know that he will commit an offense? Do you follow? That is what you call conditional examination of witnesses for the accused and for the prosecution. What are the requirements? What are the grounds for the prosecution? Anong sabi?

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1. when the witness about to depart with no definite day of returning; or 2. the witness is sick or infirm.

Eh dun sa kabila? Doon sa accused: 1. the witness is sick or infirm and unavailable.

would take around 15 to 20 minutes to discuss because I have 3...4...5 questions here. But I think before we end around 12:15 or 12:20 I will be responding to this questions. Ok now, let us now continue with our discussion. I am now on... let us look at how POSTPONEMENTS ARE TREATED BY THE COURT. Based on the provisions of the rule class, there are grounds for postponement of hearing:

Now, knowing this class before I end. Please take note that there is a disparity in terms of when examination will be conducted. There is a distinction, if you are to call the witnesses for the prosecution on conditional examination, the examination will only be conducted where? IN THE PLACE WHERE THE CASE IS PENDING. Tandaan niyo yun! Ok maliwanag ba?! When you call on the witnesses for the accused, the examination could be: 1. before any judge in the Philippines including the place where it is pending if you want; or if not practicable 2. before any member of the Bar; or 3. any judge directed by a superior court directing an inferior court. So please take note that there is some level of flexibility, when it comes to conditional examination of the witnesses for the accused. If you are conducting a conditional examination of witnesses for the prosecution, it could only be conducted; the examination could only be conducted in the place or in the court where the case is pending. It is 9:30 right? I will give you now a break I will be back in a few minutes then we will continue until 12:30. OK! I have here with me a number of questions. What I will do is before we take a break at 12:30 I will try to respond to your questions rather than take it now because I would assume that it

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1. absence or unavailability of evidence: the requirements are as follows: a. the evidence should be material and relevant; and b. efforts have been made to present or to procure the evidence but despite diligent efforts, it cannot be presented. 2. the most common ground for postponement is sickness or illness – class you just do not claim that a person is ill or sick of course you will have to show that the presence or the attendance of the witness or counsel is indispensable; meaning he is to be presented on that day, the witness or that the lawyer is required by court to be present on that day so the presence of someone who is asking for postponement is what? INDISPENSABLE and the nature of the illness is that which would render his what? His absence excusable. Do you follow? So not any kind of illness. Your honor masakit ho ang ngipin ko ngayon. Ok! Your honor medyo ah...kinakati ho ako, may allergy ako ngayon. Do you follow? Can be, the nature of the illness is that which would render it what? The absence excusable. I do not want to ask you



because if I will ask you I will get the most serious kind of illness, heart attack, stroke, AIDS...mga ganun! Baka kung anu-ano...but class what is important is THE NATURE OF THE ILLNESS IS THAT WHICH WOULD RENDER THE ABSENCE EXCUSABLE and the most common in court is sore eyes, because first and foremost it is contagious. Try niyo kapag lawyer kayo! Kung totoong may sore eyes kayo ha!!! Tumawag kayo...sasabihin nila attorney sige huwag na kayong dumating ok lang! Attorney! Ayaw nilang mahawa sayo eh. Chickenpox...ayaw nilang mahawa sayo. Ok ano pa? Mumps. Ayaw rin nila. Do you follow? But of course if you have serious illnesses, that will also be an excuse. Now, let me cite the case of Hap Hung Hardware vs. Philippine Company. The question is – WHAT COULD BE A STANDARD IN ALLOWING A POSTPONEMENT? Lagi na lang bang kapag humihingi ka ng postponement eh ibibigay? The court said that the standard should be the reason for the postponement is UNAVAOIDABLE AND ONE THAT COULD NOT HAVE BEEN FORESSEN. Ok! It is unavoidable and something that which have not been foreseen. In this particular case of Hap Hung the scenario was the person applying for postponement had to go to the US because of a new born grandchild that she had to take care of and that she at the same time will be attending a convention. Do you know the answer of the court? Was that a good reason? Was that something which was unavoidable and one that could have not been foreseen? The answer is NO! Sabi ng Supreme Court NO! You could have scheduled when you will fly because you will know the date of birth and at the same time we are talking of conventions, the dates of convention are predetermined and for that reason you could have scheduled your

departure. So according to the court that is not a good reason. So please take note, a good reason for a postponement when it comes to other than illness or absence of evidence is the ABSENCE IS UNAVOIDABLE AND ONE THAT COULD NOT HAVE BEEN FORESEEN. Now, let us touch on CONSOLIDATION. Class on consolidation all that I would like you to remember would be this phrase “THERE IS COMMONALITY OF FACT OR LAW”. Do you follow? There is commonality of fact or law, look at the provision. Does it say AND or does it say OR? Ok it says OR. So there could be common facts or common law applicable. Now let me cite you the case of Zulueta vs. Asia Brewery which is helpful on this point. The concern of this particular case was, it involves a dealership agreement. A dealership agreement between Asia Brewery and Zulueta, there was a dispute arising from the dealership agreement. Zulueta was from Iloilo therefore the action was instituted where? In Iloilo. However Asia Brewery likewise notice that there was violation of the dealership agreement, hence there was an action instituted in the court of Makati. Do you follow? So there is a case pending in Iloilo and there is a case pendignin Makati. The question is – Cant these two cases be consolidated? How was it answered by the court? The issues in both civil cases pertain to the respective obligations of the same parties under the sane agreement, the dealership agreement. Thus, every transaction as well as liability arising from it must be resolved in the judicial forum where it is in issue. The consolidation of the two cases then becomes imperative to a complete, comprehensive and consistent determination. What you would notice with this particular case is that – the two cases are pending in two different judicial districts. Do you follow? One is in Iloilo an one is Makati, is there any prohibition in consolidation because it is in two judicial districts? NO! Can there be consolidation of cases in the same judicial district? YES! There could be

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consolidation. Take note that in the case of Mega Land vs. CE Construction. The Supreme Court said: that in cases of forum shopping, the remedy is not consolidation. Magaling ang abugado niya ano...magaling ang abugado! Napansin na nagpoforum shopping siya. Ang ginawa niya, he moved for a consolidation. Kita mo ang galing nung abugado! Sabi ng Supreme Court dito, hindi pwede yun! If one litigant has filed multiple suits involving the same parties for the same cause of action, the consolidation of these suits is not the correct palliative. Consolidation is not the remedy; these suits should instead be dismissed on the ground of forum shopping. Take note of that, the case should have been dismissed on the ground of forum shopping. So if forum shopping exists, consolidation is not a remedy. Take note class that according to the case of De Vera vs. Agloro, consolidation is left within the sound discretion of the court. Ok! It is within the sound judicial forum to consolidate the two cases. Let me share with you the case of Heirs of Valdez vs. Court of Appeals. What was the problem in this case? It involved two conflicting decisions, class two conflicting decisions of the same division of the Court of Appeals. Ok! Two conflicting decisions of the same division of the court of appeals. One was for dismissal and the other for continuation of the case with one cancelling out the other. Do you follow? Biro mo isang division dalwa resolution – one dismissing, one to proceed. How did the court treat this? Can the dismissal attain finality? Can one of the decisions be treated as the proper decision. The Supreme Court cited the rule on IMMUTABILITY OF JUDGMENT – as a rule judgments are immutable and unalterable. You cannot change that anymore unless: 1. there are typographical or clerical errors;

2. there are nunc pro tunct judgments: meaning judgments that do not speak the truth; and 3. when we speak of void judgments, however the Supreme Court added one more for this particular case to be sure according to the court; 4. the rule does not apply in cases where a supervening event such as the mistake undisputedly committed by the court.

So they treated the mistake as a supervening event –that is the unintended release of the one of the resolutions thus resulting in the conflict and confusion. Mabait pa nga ang Supreme Court eh, dito?! Mabait ang Supreme Court on how they treated the conflicting decision. They said there was a mistake and they said that is a supervening event that would not lead to the finality of the judgment. Kung ibang division ng Supreme Court siguro pinagalitan sila. They should have been more circumspect and careful in issuing resolutions. The Supreme Court was very kind in terms of rendering the decision. Let us now proceed class, I have discussed demurrer. Now let me now touch on COMMISSIONERS. Ok! Briefly, baka i-codal kayo sa commissioners class. First and foremost class, a commissioner is a: 1.

referee;

2.

an accountant; or

3.

an examiner.

Ok! And take note that any matter can be referred to a commissioner for as long as the parties agree. Take note that any matter can be

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referred to a commissioner for as long as the parties agree.

Now, what matters can be referred to a clerk of court for ex-parte presentation of evidence?

If they disagree only the following grounds could be basis for a referral to a commissioner in §2 of RULE 32:

1. default proceedings; 2. ex-parte proceedings, in the nature of course of default and ex-parte proceedings where defendants do not appear and matter is referred to a clerk of court like land registration cases;

1. long accounts; 2. there is a need for the account or an account so that the court can be guided in rendering the judgment; and 3.

there are facts arising outside of the pleading that has to be within the knowledge of the court.

Class take note of this: A COMMISSIONER COULD ONLY ACT IF IT IS WITHIN THE ORDER OF REFERENCE. Ok! The commissioner could only act if it is within the order of reference and the commissioner should be placed on oath. What do you mean by an ORDER OF REFERENCE? Class yung lang yung ano, inissue ng husgado ITO ANG GAGAWIN MO! Can a commissioner issue a subpoena? YES! Ok! Duces tecum? YES! Can a commissioner determine objections and admissibility of evidence? YES, IF WITHIN THE ORDER OF REFERENCE. Now, let us compare with a clerk of court. Can the clerk of court determine admissibility of evidence? The answer is NO! Can the clerk of court issue a subpoena duces tecum? NO! But a subpoena ad testificandum? YES! Because class if it is a simple request for testimony, the court will usually entertain but a duces tecum it is usually within the cound judicial discretion.

3. when parties stipulate.

Now, let me ask you this question – can the court render a judgment without a trial? The answer is YES! If the parties agree on facts this is RULE 30 §6. If parties agree on facts whether partially or wholly, the court may require submission of memorandum when what is left to be resolved is a matter of law, the court can already render a judgment. Let me now distinguish based on the case of Wood Technology vs. Equitable Banking, JUDGMENT ON THE PLEADINGS class and SUMMARY JUDGMENT. Class kapag ang estudyante hindi na nila matandaan ito, ang tinatandaan nila ay ano? Yung distinction but class this should not be very hard for you to remember. Before I give you the distinction I will give you a simple explanation of judgment on the pleadings. Class yesterday I touched on it, it is fairly simple. IF YOU DO NOT CONTEST OR MAKE AN ISSUE OUT OF MATERIAL ALLEGATION OR IN SIMPLE WORDS THE CAUSE OF ACTION IT LEADS TO A JUDGMENT ON THE PLEADINGS. Kuha niyo? Maliwanag ba?! Wala kang kinontest eh. Inamin mo lahat eh. What happens? Judgment on the pleadings. That is why the definition of judgment on the pleadings is the answer does not tender an issue or admits the material allegations of the complaint. The next is summary judgment. How is it defined by law? There is no genuine issue as to a material fact. Take note that you are

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referring on summary judgment on a fact. There is no genuine issue, therefore sir are there other issues? YES! Are there other disputes on the matter? May be YES! That is why you have a complete or full summary judgment and a partial summary judgment. What do you mean class by THERE IS NO GENUINE ISSUE AS TO A MATERIAL FACT? It means that even if there is an issue, it is what? FALSE, it is SHAM. Ok?! Let me give you an example para Makita niyo yung distinction na sinsabi ko. When I say the answer does not tender an issue – sinabi ko may utang ka sa akin, anong sabi mo? Sabi ko due na yun May 30 di mo pa binayaran. Sabi mo OO! Inamin mo lahat yun, judgment on the pleadings. When will it become summary judgment? Anong sabi mo? Ah bayad na yan! Do you follow?! Did you create an issue? YES, because saying that you have paid it will prevent or bar recovery. Do you follow? Sabi mo, bayad na yan eh! But in truth and in fact is you have not paid it. Correct?! You have not paid it. So you have created an issue which is false, where in fact you have communicated to me saying: pwede ba bigyan mo pa ako ng lang araw? Hindi ko pa talaga kayang bayaran or can you give me until August 30 eh it is only July. Do you follow? That fact will show, that the issue that you have created is merely false or sham, there is no genuine issue. Let me give you the comparison: JUDGMENT ON THE PLEADINGS It is a full judgment; it is ALWAYS A FULL JUDGMENT. There is no partial judgment on the pleadings. As a rule, it is the PLAINTIFF who asks for judgment on the pleadings – because

SUMMARY JUDGMENT It is either a FULL OR PARTIAL SUMMARY JUDGMENT.

It is the PLAINTIFF OR the DEFENDANT who could ask for summary judgment – the

the answer does not tender an issue.

The COURT SIMPLY RELIES ON THE PLEADINGS, meaning the complaint and the answer and the attachments thereto.

PLAINTIFF can ask for summary judgment AFTER AN ANSWER has been filed; the DEFENDANT can ask for summary judgment at ANYTIME WHILE THE ACTION IS PENDING. The COURT CAN GO BEYOND THE PLEADING AND REFER TO DOCUMENTS, AFFIDAVITS AND DEPOSITIONS to determine if there is no genuine issue. Affidavits should be within the personal knowledge of the affiant.

Now, let me give you a very simple example and I hope you would know whether it is summary judgment that will apply or judgment on the pleadings. In a case decided by the court, there was a loan extended let us say to me. A loan extended to me and that loan of Php1M was evidenced by a promissory note, except that the promissory note did not provide for a due date but for all intents and purposes we have agreed that the due date was May 30, 2011. So when May 30 came, the same was still unpaid there was a request for me to pay I ignored it. Can you follow? Now, so what happens? I was sued, when I was sued what did I say in my answer? Yes I owe you money, yes there is a promissory note but look at that the promissory note is blank as to the due date and therefore it is not yet due and demandable. Can you follow? What can I file? Will I file a judgment on the pleadings or will I file summary judgment? The regional trial court that resolved that issue said, because what was filed was judgment on the pleadings, granted the judgment on the pleadings. It was elevated to the higher court and the Supreme

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Can that be a basis of execution? YES! Hat could be a basis of execution. Can a final judgment that has not aatained finality or does a final judgment which is not yet final and executory subject of execution? YES! That is what you call DISCRETIONARY EXECUTION or the way you want it said EXECUTION PENDING APPEAL. Do you follow? Whether it be a final and executory judgment or simply a final judgment that could be subject of an appeal, both could e subject of execution. Before I proceed and discuss execution. Let me give you a rundown first. OK! A rundown of a distinction between an MR and a MOTION FOR NEW TRIAL.

GROUNDS

Now let us proceed to JUDGMENT. I touched judgment a while ago but let me touch on the case of Intramuros Tennis vs. PTA. This case distinguished a final judgment from an interlocutory order. A FINAL JUDGMENT under RULE 36 –That which finally disposes of the case. An INTERLOCUTORY ORDER – Something else has to be done. Why is this an important discussion because that will lead us to our discussion on, execution. But class, I would like you to distinguish a SEVERAL JUDGMENT FROM a SEPARATE JUDGMENT. A several judgment is a judgment involving PARTIES, defendantsseveral. When you talk of separate judgment, you talk of what? CLAMS! You talk of claims as would apply to summary judgment.

What is an ENTRY OF JUDGMENT? An entry of judgment is issued by the court after the lapse of the reglementary period to appeal and for that reason, judgment is already final and executory. Do you follow?

EFFECT OF 2ND FILING

Court said: while it is true that you could render a judgment, the Supreme Court said that the proper remedy should have been summary judgment, because there was an issue... Correct! Although the issue was not genuine. Ginawan niya ng issue eh, blangko yan oh! Kita niyo blangko, hindi pa due. Do you follow? There is no genuine issue. As an example I always give my students so that they will not forget in the bar review like this, you will always remember no genuine issue. Gusto niyo malaman kung paano? Kaya lang huwag yung example ko ang tandaan niyo but how to apply it. Katulad ngayon marami kayong makikilala di ba? Marami kayong bagong friends, so yung mga iba dyan may mga magugustuhan at may girlfriend o boyfriend kapag nakita ulet yung boyfriend or yung girlfriend. Dahil nga may bago nang gusto; Alam mo kailangan talaga ako sabi ni mommy mag-aral ng mabuti! Di ba ganun?! Mag-aral ng mabuti kaya dapat di muna tayo magkita masyado. Kasi baka ako bumgasak sa bar eh. Sa ngayon cool-off muna tayo! Is there a genuine issue? NO! There is no genuine issue, you only fabricated the issue. Tama ba ako meron bang gumagawa ngayon niyan? There is no genuine issue, it is sham, it is false. so dapat yun sina-summary judgment ka! Ok! Now, let us move on...talaga itong bar review na ito eh!

MNT 1. FAME ( fraud, accident, mistake and excusable negligence); and 2. NEWLY DISCOVERED EVIDENCE. A second MNT can be allowed if the ground was not yet in existence at the time of the filing of the first MNT.

MR 1. Contrary to law; 2. Judgment is not supported by evidence; and 3.Award of damages is excessive. A second MR is a prohibited pleading.

Now, significantly class take note of the Neypes ruling on the FRESH PERIOD RULE. You know what I mean right?! If you file a MOTION FOR RECONSIDERATION and you is denied. You have

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a fresh period of 15-days within which to file your appeal. What do we mean by PROFORMA MOTION FOR RECONSIDERATION? OK! What do you mean by proforma? This is the case of Tan vs. Court of Appeals. What do you mean by proforma motion for reconsideration? Class a motion for reconsideration may be proforma: 1. if it only repeat or reiterate matters which have already been passed upon by the court, it is proforma; 2. is that which did not meet the requirements of §4 and 5 of RULE 15 of the Rules of Court. So class it is treated as a mere scrap pf paper. Do you follow? Sir, ano ibig sabihin nun? Ypu file a motion for reconsideration without a notice of hearing; without serving a copy thereof to the other party, that is a proforma motion for reconsideration. Are we clear? You did not set it for hearing or you did not serve notice or serve a copy at least 3 days before the date of the hearing, that is proforma motion for reconsideration. Are we clear? Now, let me ask you this question. If you are to file a MOTION FOR NEW TRIAL within the reglementary period of 15-days, in the trial court from rendition of judgment, WITHIN HOW MANY DAYS CAN YOU FILE A MOTION FOR NEW TRIAL IN THE COURT OF APPEALS? Pareho ba yun? Ah class, pareho bay un? You are to file it in the Court of Appeals...open to RULE 53 ata yun! 53 ba yun or 52? Motion for New Trial in the CPOURT OF APPEALS, the sole ground class listen to this, the sole ground in the Court of Appeals of a Motion for New Trial is NEWLY DISCOVERED EVIDENCE. Tandaan niyo yun baka i-multiple choice kayo dyan. Only newly discovered evidence, it is not FAME. FAME is not included and the period to file a Motion for New Trial in the Court of Appeals is from the

time appeal is perfected for as long as the Court of Appeals has jurisdiction. Again, FROM THE TIME APPEAL IS PERFECTED AND FOR AS LONG AS THE COURT OF APPEALS HAS JURISDICTION. Maliwanag ba? Unlike the trial court, within the period of 15-days. In the Court of Appeals NO! From the time appeal is perfected it has jurisdiction and for as long as it has jurisdiction you could file a motion for new trial on a singular ground of newly discovered evidence. Now let me ask you this question. Can you file a MOTION FOR NEW TRIAL IN THE SUPREME COURT? Will that RULE 53 apply in the Supreme Court? Class huwag niyong ah...ano yun! Huwag niyong iisipin na yang RULE 46-55, wlang kwenta yan! Di ko babasahin! Tinanong yan sa bar noong 2008. The last question was I still remember, can you enumerate original actions filed in the Court of Appeals? Ok! Can you file a Motion for New Trial in the Supreme Court? Can you apply RULE 53? The answer you will find in RULE 56 §2-3. Tingnan niyo yan may enumeration ng mga rules. Is RULE 53 included? NO! It is not included. So as a rule, you do not file a motion for new trial in the Supreme Court. However, you have seen motion for new trial in the Supreme Court that is left within the sound judicial discretion of the court but in terms of law, you cannot file a motion for new trial in the Supreme Court. Only in the Court of Appeals and only in the trial court. Let me now touch on PETITIONS FOR RELIEF FROM JUDGMENT. How many kinds of petitions for relief from judgment do you have? How many kinds? Sir bakit may kinds ba yung petition for relief from judgment? YES! HOW MANY KINDS OF PETITION FOR RELIEF not petition for relief from judgment? How many kinds of petition for relief do you have? You have 2!

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1. petition for relief from JUDGMENT; 2. petition for relief from DENIAL of



APPEAL. Both are grounded on FAME. Now, kapag tinanong ka, WHAT ARE THOSE REMEDIES WHEREIN FAME IS A GROUND: 1. motion to lift order of default; 2. motion for new trial; 3. petition for relief from judgment or denial of an appeal; Now, let me cite to you the 2010 case of Torres vs. China Banking Corporation. The question is, what is the remedy of a party in having been prevented to file an appeal? Remember my word, the word that I used PREVENTED. A party has been what, prevented to file an appeal, what is the remedy? According to the court the proper remedy for allegations of MISTAKE OR INEXCUSABLE NEGLIGENCE OF COUNSEL which prevented a party from taking an appeal is a PETITION FOR RELIEF FROM DENIAL OF APPEAL, under RULE 38. Whether it be class a petition for relief from judgment or a petition for relief from denial of appeal, what is the period to file. Ok! You have to memorize this, it is not 15days, it is not 60-days IT IS WITHIN 6 MONTHS FROM ENTRY OF JUDGMENT BUT WITHIN 60DAYS FROM KNOWLEDGE. Are we clear? 6 months from entry of judgment but within 60days from knowledge. Let me illustrate this for you. I have made this illustration in my classes, undergrad classes. Class, look at this bottle look at it as the 6-months period. Do you follow? Let us say the 6-months period is from June 1 to at the end December 1. Let us say, there was entry of judgment on June 1, if you learned of the judgment on August 1, until when can you file a petition for relief judgment or for denial of appeal? Until, technically October 1, right? October 1. But what if you learn of the judgment or you knew of the judgment on November 15, until when can you file a petition for relief? Until December 1! You cannot go out

of that deadline. Do you follow? That cannot be extended. It is always 6 months. So your 60days will always play within the 6 months. If you learned of it before or almost before the expiration of the 6 months, that is your problem! That is not the problem of the court. Ok? Let me give you the classic example of Alaban vs. Court of Appeals. That will tell you whether to use an annulment of judgment or a petition for relief from judgment before I touch on this. RULE 47 is annulment of judgment, what are the grounds for annulment of judgment? EXTRINSIC FRAUD, that is one and the second one, is that LACK OF JURISDICTION? YES! Lack of jurisdiction. When should you raise the annulment of judgment, petition for annulment of judgment? For grounds of extrinsic fraud WITHIN 4-YEARS FROM DISCOVERY. For lack of jurisdiction at ANYTIME BEFORE YOU ARE BARRED BY LACHES. Estoppels by laches on question of jurisdiction. Take note that when you say lack of jurisdiction on annulment of judgment IT COVERS NOT ONLY LACK OF JURISDICTION OVER THE SUBJECT MATTER BUT LIKEWISE COVER LACK OF JURISDICITION OVER THE PERSON OF THE DEFENDANT. Ok? So it includes both lack of jurisdiction over the subject matter and lack of jurisdiction over the person of the defendant. Now let us now discuss the case of Alaban. What happened here? This case tried to answer, WHO IS A PARTY? Do you follow? Look at §1 of RULE 38 and it says, that only a party to a case can file a petition for relief from judgment. Can you look at that? Can you find the word party? Tama ba?! ONLY A PARTY CAN FILE A PETITION FOR RELIEF FROM JUDGMENT but we hbave to bear in mind that the fault for not filing an appeal or an MR or MNT is not

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attributable to a party filing the petition for relief. Now, this was the question in the case of Alaban, what happened? It involved the estate of a deceased person and there was someone Mr. A came forward to say I am the sole heir. The rest of the heirs were not informed, they did not know that there was a settlement of estate. Only he came forward and the estate was adjudicated in his favour. The other heirs learned of it within 60-days or 2 months from the entry of judgment. Do you follow? Within two months from the entry of judgment. So what did they do? They filed a motion to set aside the judgment. But what did the court do? The motion was denied, sabi ng court wala...hindi! denied yan! Ano ngayon ang nangyari? Nung sinabi ng court na denied, they were left with no option but to go to the Court of Appeals. They filed a petition for annulment of judgment. Do you follow? Annulment of judgment and not a petition for relief from judgment. One of the reasons given by them in filing a petition for annulment is that, we are not a party to the original case. Sabi nila we are not a party to the original case and for this reason petition for relief is not a proper remedy for them because §1 tells you that you should be a party. Mukhang tama sila, tama? It looks that there is sense in their argument. However the Court of Appeals think of it different. They said and it was affirmed by the Supreme Court. The Supreme Court said that in cases like this – this are what actions IN REM, that requires publication, the fact of publication effrectively gave notice on the heirs and made them as parties even if they are not parties on the case. The fact of publication, because this is an ACTION IN REM and for this reason they said, the court said hat the proper remedy shold have been a petition for relief from judgment. Besides according to the court, you have learned of the judgment within 60-days from its entry, so it is within the period mandated. But other than the case of Alaban, you have to take note that you should be a PARTY.

OK! Now, let me now proceed and touch on EXECUTION. A few items on execution, still on the case of Intramuros. Take note that the execution or the WRIT OF EXECUTION must: 1. conform with the dispositive portion of the judgment. Ok that is number one. The writ of execution must conform with what is provided for in the judgement. It cannot go outside of it. 2. a hearing for the issuance of writ of execution does not require a full blown or trial type hearing, all that is required is that there is a hearing. It does not require a full blown or a trial type hearing. Now, IF IT IS AN EXECUTION AS A MATTER OF RIGHT, DO YOU NEED A GOOD REASON FOR THE COURT TO GRANT YOUR MOTION FOR EXECUTION? The answer is NO! If it is a matter of right, the reglementary period to appeal had lapsed and the decision had attained finality and therefore it is a matter of right. You do not need to give a reason, the decision alone is enough reason for the court to execute. However class if it is AN EXECUTION PENDING APPEAL or you call it DISCRETIONARY EXECUTION, you have to give what? Good reasons. In this case of Intramuros, he problem was, the reason given for execution pending appeal. Was that, the tennis court which was the subject of the controversy was deteriorating and is on unsanitary condition which was subject of the comlaint of the tennis players. Was that a good reason for the court to allow execution pending appeal? The Supreme Court said, YES! The unsanitary condition and the deteriorating condition of the tennis court were good reasons for the court to grant execution pending appeal. Other good grounds for execution pending appeal would be:

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1. the assets of the losing party is about to be wasted and dissipated; 2. the coporation is insolvent;

about

to

be

3. is advance age a ground for execution pending appeal? Age alone is not sufficient but age coupled with other reasons like; need for medication, need to continue with his sustainance – then these are good reasons for execution pending appeal. Do you need a BONd? Class, do you need a BOND FOR EXECUTION PENDING APPEAL OR DISCRETIONARY EXECUTION? The answer is NO! All you need is good reason/s. You need a bond to STAY EXECUTION PENDING APPEAL. I want to be very clear with that ha! All you need is good reason/s but for the other party to stay execution pending appeal, you need a bond. Ok now, let me call your attention class to the case of Mina vs. Bianson. This is very much instructive on WHERE TO FILE THE MOTION FOR EXECUTION? There was a demolition order in an ejectment case which court will issue the demolition order. In this particular case class, there was already a judgment of the MTC, the court of original jurisdiction and it was reviewed by the RTC and while pending in the RTC there was a motion for issuance of a demolition order. WHICH COURT WILL ISSUE THE DEMOLITION ORDER, IS IT THE RTC OR THE MTC? It is the MTC, the court of original jurisdiction. Which rendered the original decision. According to the court, it is therefore clear that in the EXECUTION OF JUDGMENT IN EJECTION CASES. The issuance of the demolition order is within the jurisdiction of the MTC which rendered the decision. The RTC that affirms the decision of the MTC cannot order execution of its judgment. Although class it is a different story, listen to this... it is execution pending appeal. Take note, ON AN EXECUTION PENDING

APPEAL WHERE CAN YOU APPLY FOR THE MOTION? Where could you file the motion? IT DEPENDS. If the court continues to have jurisdiction, meaning within the reglementary period, the MTC could issue a writ of execution. For as long as it is in possession of the records of the case. Tandaan niyo!!! Hindi lang yung within the reglementary period, FOR AS LONG AS IT IS IN POSSESSION OF THE RECORDS OF THE CASE. However, WHEN IT LOSES JURISDICTION CAN THERE STILL BE EXECUTION PENDING APPEAL? YES! Where will it be applied for? BEFORE THE APPELLATE COURT. I want that to be very very clear, before the appellate court. The example that I gave you the Mina case is an example wherein the decision of the RTC became final and once final, application is within the original court. Always remember class that when it is EXECUTION AS A MATTER OF RIGHT. As a rule, motions should be filed where? Even if it has been appealed to the next level court and until the Supreme Court. The motion should always be filed where? BEFORE THE COURT OF ORIGINAL JURISDICTION. The writ should always be where? issued by the court of original jurisdiction. Except for just causes, the motion for execution should be FILED where? BEFORE THE APPELLATE COURT, I am talking of as a matter of right but the writ can only be ISSUED BY THE COURT OF ORIGINAL JURIDISDICTION. Can you follow? Yes, for good cause pwede yan sa appellate court if you appeal but the writ is always issued by the court of original jurisdiction. Can the COURT OF APPEALS ISSUE A WRIT OF EXECUTION? YES! On original actions filed before the Court of Appeals. Can there be ORIGINAL ACTIONS FILED IN THE COURT OF APPEALS? YES!

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1. Certiorari;



2. Prohibition;

2. the second aspect of res judicata which is subsection C of your RULE 39 §47 subsection C, PRECLUDES THE RELITIGATION OF PARTICULAR FACT OR ISSUE IN ANOTHER ACTION between the same parties or their successors-ininterest, on a different claim or cause of action. Can you follow?

3. Mandamus; 4. Quo Warranto; 5. Habeas Corpus; 6. Habeas Corpus and Custody of Minors;

The first one you cannot relitigate the same claim or cause of action – that is the first res judicata.

7. Writ of Amparo; 8. Writ of Habeas Data. Do you follow? The Court of Appeals has original jurisdictions and in some of those, it has also concurrent jurisdiction. Ok now, let us move on...baka gutom na kayo ha?! Mukha naming hindi pa kayo gutom, dilat pa naman kayo eh. We still have 45 m inutes ok! My goal is ah, hopefully in 45 minutes I am able to cover yung civil procedure na gusto kong i-cover, so that when I return after lunch I will start with criminal procedure. Ok? That is my intention. Ok? So you have to bear with me. Now let me ask you, now the next question – WHAT ARE THE 2 ASPECTS OF RES JUDICATA? According to the case of Barreto vs. Court of Appeals. Sir, di ba isa lang yang res judicata na yan?! This case cited the rule in RULE 39 §47. That is effect of judgments. They zeroed in on subsections b and c. Subsection B is really res judicata, subsection C is preclusion of issue and in this case the court said: the DOCTRINE OF RES JUDICATA is of 2 aspects: 1. the first, the effect of judgment as a BAR TO THE PROSECUTION of second action upon THE SAME CLAIM, DEMAND OR CAUSE OF ACTION. In simple words, the res judicata in subsection B covers a bar to prosectution involving, the same claim, demand or cause of action;

The second one which is preclusion of issue, you cannot relitigate an issue that has already been, what? Passed upon by the court in a different case involving a different cause of action. I will give you an example. Ok! Para maintindihan ninyo. Class, let us say that I was the contractor of this law school, let us say I was the contractor of this building and there were breaches of the agreement so I sued the principal. Yung eskwela ang idinemanda ko sa madaling salita, nagdemandahan kami and in that case gusto ko ipa-nullify yung kontrata. Do you follow? I said this contract is null and void because of the following... but the court said what? The court said that the contract is valid. Do you follow? Sabi nung court valid. Is that res judicata on that cause of action? YES! That is already res judicata. But let us say, I am the main contractor and I let us say I have a subcontractor. Tama ba yun? Yung bahala sa bintana, yung bahala sa pinta, bahala sa elevator, iba-iba yun. Let us say, there was a suit between me and my subcontractor, not involving the school. Correct? Involving the elevators. Can we relitigate the validity of the mother contarct with the school? NO MORE – That is preclusion of issue, it is a different cause of action, it involves the problem of the elevator but we can no longer relitigate the fact of the validity of the mother contract but we could litigate on items involving the elevator.

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Are we clear? So those are the 2 aspects of res judicata. Now, let us look at another provision on execution which is §14. Ok! What about §14? This is the duty of the sheriff to what? To make a report on intervals of 30 days. Take note class, THE 30 DAYS THERE IS NOT THE EFFECTIVE LIFE OF WRIT OF EXECUTION. The 30 days there is what? The duty of the sheriff to make a report. Ok! To make a report and let me quote from the decision RULE 39 §14 mandates the manner in which the writ of execution is to be returned to the court. As well as the requisite reports to be made by the sheriff and to see whether the judgment has been satisfied, in any case every 30 days until is fully satisfied. Are we clear? The 30 days there is the duty of the sheriff to report on the conduct of his execution. Now, let me ask you this – what is the life of the writ of execution? If you read §14 carefully it will give you the answer, the period is 5 years but it does not say 5 years all it says within in that period that it could be enforced by motion and a judgment could be ebforced by motion within the period of 5 years. Take note of the case of Cagayan de Oro Coliseum vs. Court of Appeals. This is important and I am citing this case because of the requirement of PRIOR LAWFUL LEVY BEFORE A PUBLIC SALE. Take note of this, THERE SHOULD HAVE BEEN A PROPER AND VALID LEVY BEFORE what? YOU EFFECT A PUBLIC SALE, meaning there should have been a service of the writ before you effect the sale. In the SAME MANNER CLASS THAT IN MONEY JUDGMENTS, there should been what? A DEMAND ON THE PART OF THE SHERIFF TO PAY THE SUM, PAL vs. Baliber and only if there is failure to pay can you go on levying his real or personal property and in the order of things, if the losing party does not make a choice as to which property will have to go first, personal property will have to go first.

Now, CAN THE COURT ISSUE A WRIT OF EXECUTION MOTU PROPIO? That was answered in an administrative case Office of the Court Administrator vs. Corpuz. Can the court motu propio issue a writ of execution? The answer is NO! The court could only issue a writ of execution upon motion, ONLY UPON MOTION. The case of Budget vs. Bacleg, the lifetime of the writ of execution which is 5 years, let me touch on independent action. Ok! Let us look at an independent action, this §6 of RULE 39. This has been repeatedly asked in the bar exams. Ok! The question is – WHEN DO YOU FILE AN INDEPENDENT ACTION TO REVIVE THE JUDGMENT? Within a period of 5 years? NO! After the lapse of 5 years from the entry of judgment. Do you follow? Within 5 years from the entry of judgment, you could file a motion for execution. After the lapse of 5 years from the entry of judgment but within a period of 10 years or the prescriptive period as mentioned, not in the rules of court but in civil code which is 10 years, you could file an independent action to revive the judgment and once it is revived and the revived judgement is final and executory, you could again file a motion for execution. Ok now, let us now proceed and see this case of Solid Bank vs. Court of Appeals. What was the problem in this case? The decision did not mention of 12% on the subject liability meaning on the judgment there was no mention at all of interest to be borne by the losing party. However, the sheriff took it upon himself to charge 12% on the subject liability and the interest imposed for the amount in which he was liable. Was it correct for the sheriff to do that? The answer was NO! The sheriff went beyond the decision of the court, the sheriff has no authority, no judicial discretion to add on the judgment, all that he could do is to execute. Let us distinguish ISSUANCE OF THE WRIT from AWARDING thereof. What is the difference?

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This was explained in the case of Separa vs. Maceda, the court said: it is well to state the difference between issuance of the writ and awarding of the same. The function of ORDERING THE EXECUTION IS JUDICIAL AND DEVOLVES UPON THE JUDGE. Again, the function of ordering the execution is judicial and devolves upon the judge; whereas, the ACT OF ISSUING THE WRIT IS MINISTERIAL AND CAN BE PERFORMED BY ANOTHER PERSON THAT IS THE CLERK OF COURT. Now, let us now proceed before I leave this item completely and touch on appeal. Ok! Let me remind that you that there is also a REVIVAL OF JUDGMENT, aside from §6. There is revival of judgment at the instance of §33 of the same RULE. How does that takes place class, revival of judgment under that provision? It happens this way class, §33 scenario class is, you are winning buyer or participant in a public sale but for one reason or another, you were not able to take possession or that someone came in with a better interest tha you are, in that case class you already paid but you are left with an empty bag. Do you follow? The law gives you now the remedy in §33, that is revival of judgment. What are your remedies? 1. you could file a motion to reciver that amount in the same case; 2. you could file a separate action; and 3. you could file a motion for issuance of the judgment, in your own name. Do you follow? What is the effect of having the judgment in your own name? You could do a regular execution as if you are the regular oblige. It is just like that you are asking for the amount that you have paid but if he cannot pay that anymore you could go on regular execution because you have taken the place of the judgment oblige.

Ok! Now, I think my final point on execution would be THIRD PARTY CLAIM. Matagal nang walang tanong dyan, third party claim that is §16 of RULE 39. Please take note that there is a partner provision, in attachment also. May third-party claim in attachment in §14 of ATTACHMENT and there is also third-party claim in REPLEVIN. Tingnan muna natin ang concept... but before I proceed ano nang oras? Alas dose?! Ok pa! Ok pa kayo. Ngayon pa nga lang ako gingaganahan eh. Medyo kahapon, nangangalawang pa ako nung unang oras. Matagal akong... Kayo ang una kong bar review, sunod-sunod na to eh. May August, may October, may katapusan, may September because of the new schedule, November right? I have regular classes but of course it is different in a bar review, dito mahaba kang nagsasalita, ikaw lang nagsasalita. Kapag nakalimutan mo hindi mo pwedeng tanungin sila kung ano, sa klasepwedeng tanungin mo sila. Sa bar review hindi, ikaw lang salita ng salita. The next question that I would like us to answer is third-party claim. Class, WHAT IS A THIRDPARTY CLAIM? A third-party claim is a claim of a third-party or a PERSON WHO IS NOT A PARTY TO THE CASE where the court has not acquired jurisdiction over him. Class please take note lookm at this basic scenario, I am discussing about execution the judgment oblige class – what is the interest of the judgment obligee? To have the execution to proceed. Do you follow? He wants execution to proceed. Correct?! but if there is a third-party claimant who files an affidavit or who serves an affidavit on the sheriff, what happens? THE EXECUTION WILL BE STAYED. It will be suspended. Take note, it will be stayed AS TO THAT PROPERTY baka naman buong exectution itigil mo because there is a third-party claim only on that subject property. Do you follow? So class, with the service of an affidavit on the sheriff the execution on that property will be stayed.

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How will it run again? When will it continue? If the judgment oblige, the winning party will post a bond in favor of the third-party claimant. Akalain mo ikaw na nanalo, ikaw pa ngayon magbibigay ng bond in favour of the third-party claimant. Now, the next discussion point is important. Where can the third-party claimant can vindicate his right? He could vindicate his right in a separate action or in the same action? In a SEPARATE ACTION. Bakit? Eh final and executory na yun eh but the JUDGMENT OBLIGEE can vindicate his right in the SAME or in a SEPARATE action. As distinguished from attachment. Basically the concept is the same, except tha in attachment, the case is still active and pending. Correct?! The third-party claimant can what? Vindicate his right in the same or separate action, just like the person who applied for attachment. Do you follow? He could vindicate his right in the same or separate action in simple words, he could still what? Intervene. That is the difference and you apply the same rule for purposes of replevin. My last point, real last point in execution is PUNITIVE DAMAGES. You know punitive damages? You will not find that in the civil code. Punitive damages class are damages under the rules of court that person will suffer by conducting a sale without notice or defacing a notice of sale. If you deface a notice of sale, you could be liable for punitive damages. Now, let us now proceed and discuss APPEALS. Ok! Doon muna ako sa basic before I give you the new cases that I have, doon muna tayo. Class, tandaan niyo to...wag lang yung sabihin niyo nagreview kayo appeal is the remedy in law, yung mga ganun...distinguish petition for review on certiorari. Dapat alam niyo yun mode baka kasi tanungin kayo niyan eh. Ok! I think two years ago the modes were asked, as to where to go. Ok! So you should know this.

WHERE DO YOU GO FROM AN ORIGINAL JUDGMENT IN THE MTC? RTC WHAT WILL YOU FILE? A Notice of Appeal. WHERE DO YOU FILE THE NOTICE OF APPEAL? IN THE MTC – that is what you call an ordinary appeal. Do you follow? On an ORIGINAL JURISDICTION OF THE RTC, if it renders a decision. WHERE WILL YOU GO? Court of Appeals WHAT WILL YOU FILE? A Notice of Appeal. WHERE WILL YOU FILE IT? In the RTC. Do you follow? ORDINARY APPEAL. Yan ang pinakasimple. One step up, NOTICE OF APPEAL. Do you follow? But you FILE IT IN THE COURT THAT RENDERED THE JUDGMENT. Now, let us complicate it a little bit. A judgment of the MTC, as a court of original jurisdiction reviewed by the RTC after an ordinary appeal, where a notice of appeal was filed and where will you go, if you still lost the case? COURT OF APPEALS WHAT WILL YOU FILE? A Petition for Review. Tama yan! You will file a petition for review. Not a petition for review on certiorari but a PETITION FOR REVIEW. You will meet a petition for review but not in court but in a QUASI-JUDICIAL AGENCY when you talk of the DOJ. From a decision or resolution of the office of the prosecutor, you proceed to the Department of Justice on a Petition for Review, that is not covered ny your RULE 42 that is covered by Circular 17 of the DOJ. So if you are asked, HOW MANY KINDS OF PETITION FOR REVIEW DO YOU HAVE?

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1. Petition for REVIEW under RULE 42, that I discussed; 2. Petition for REVIEW under RULE 43 – review of decisions of QUASI-JUDICIAL AGENCIES. Where do you go? To the COURT OF APPEALS, on a PETITION FOR REVIEW. Ok! Civil Aeronautics Board, SEC, DARAB you go to the Court of Appeals. How about THE OFFICE OF THE PRESIDENT? The Court of Appeals. How about HLURB? Do you go to the Court of Appeals? OFFICE OF THE PRESIDENT, Housing and Land Use Regulatory Board – you do not go directly to the Court of Appeals, you go to the Office of the President. NLRC where do you go? Court of Appeals BUT NOT on a petition for review but on a PETITION FOR CERTIORARI under RULE 65, St. Martin Funeral case and the reason behind that is by law the decision of NLRC is FINAL and EXECUTORY there being no appeal nor any plain nor speedy remedy in the ordinary course of law, there being no appeal if there is grave abuse of discretion your remedy is RULE 65. Are we clear? So you now know the 3 petitions for review and then class your last mode is a PETITION FOR REVIEW ON CERTIORARI. Take note class that a PETITION FOR CERTIORARI IS NOT AN APPEAL. The appeal is a PETITION FOR REVIEW ON CERTIORARI. Always remember this motherhood statement: The only way to go up to the Supreme Court is a PETITION FOR REVIEW ON CERTIORARI IN CIVIL CASES. Ok! However in CRIMINAL CASES, this is the motherhood statement: The only way to go up to the Supreme Court whether in CIVIL or CRIMINAL CASES is through a PETITION FOR REVIEW ON CERTIORARI, except when the penalty is LIFE OR DEATH. Ok!

Let us now proceed with a few cases. The case of Torres vs. China Bank, IS FAILURE TO FILE AN APPEAL A DENIAL OF DUE PROCESS? The right to appeal is not a natural right or part of due process, it is merely a statutory privilege and may be exercised only in the manner and in accordance with the law. Class, tandaan niyo to kapag naging abugado kayo, mapapakinabangan niyo to kapag nagkamali kayo. Hindi ko pa naman sa awa ng diyos pinakinabangan ito. Bakit? Kapag sinabi ng cliente mo, bakit hindi mo i-nappeal attorney? Attorney bakit na-dsimiss yung appeal? Remember!(while chuckling) It is not a natural right, it is only a statutory right. Ok! Alam niyo mga abugado, madudunong yan eh. Ok! But class you should make sure that you file your appeal on time. Do not shelter yourself with that case of Torres. Now, let us look at the case of Fajardo vs. Flores. The question that I would like to raise here is CLAIMS ARISING FROM TERMINATED TENANCY RELATIONS, WHICH COURT HAS JURISDICTION? Is it the DARAB or the REGULAR COURT? The Supreme Court said: Undeniably the said case involves TENURAL ARRANGEMENT. There still exist an agrarian dispute because the controversy involves the home of the petitioners, an incident arising from LANDLORD-TENANT relationship and the court further said, even assuming that the tenancy relation between the parties had ceased due to the KASULATAN there still exist an agrarian dispute because the action involves an incident arising from the landlord-tenant relationship. Now, let us look at this Celestino Baluz vs. Baluz. Ok! The court said in this case: No extrajudicial settlement when there is no coownership of the property. Take note ha, this is a special civil action. NO EXTRA-JUDICIAL SETTLEMENT IF THERE IS NO CO-OWNERSHIP. In this particular case, what happen was the extrajudicial settlement was made between the

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party and his siblings. Ok! In what they thought was the ownership of the property but the problem was, the property that was made subject of the extra-judicial settlement was already bought by the bank. They no longer coown the property. So the Supreme Court said, you cannot extra-judicially settle a property which you no longer own. Ok! You cannot do that. Now, CAN THERE BE A PRESUMPTION OF AGRICULTURAL TENANCY? Pwede ba yun? Senese vs. Ramos a 2010 case it says: NO PRESUMPTION OF EXISTENCE OF AGRICULTURAL TENANCY. In evidence if you will recall in RULE 131, there is an enumeration of disputable presumption. So class, no presumption of existence of agricultural tenancy the fact alone of working in a landholding does not give rise to the presumption of existence of agricultural tenancy. Substantial evidence requires more than a mere scintilla of evidence in order that the fact of sharing can be established, again there is no presumption of agricultural tenancy. Now, before I proceed further let us first touch on the case of Catmon Sales vs. Inson, this is another 2010 case. It said, it is well settled that a party who has not appealed from a decision cannot seek any relief, other than what is provided in the judgment appealed from. Do you follow? This is different from CRIMINAL CASES. Right?! Sa civil hindi ka nag-appeal sorry ka! You could only enjoy those that are provided for in the judgment because you did not appeal. Right?! But in criminal cases, if you are an accused who did not appeal but one of your co-accused appealed and he secured a favourable judgment that will affect you, that will apply on you. Do you follow? That is different in civil cases. However class, do not apply the criminal explanation tha I gave in a situation like this I am an accused I have another co-accused both

of us appealed he filed on time, I FILED OUT OF TIME AND MY APPEAL WAS DISMISSED – he obtained a favourable judgment I can no longer avail of that favorable judgment because I appealed except that my appeal was dismissed. Ok! Now, what time is it? Oh ayan! Sagutin na natin to. Tingnan natin, yung isa mahaba yung tanong eh! Isang paragraph...ayan! and then I will continue. The question is: After the defendant had filed the interrogatories and admission requested by the plaintiff, I will assume that this is interrogatories to parties ha! Ok! The counsel of plaintiff presented the defendant before the court, however the counsel forgot to offer the testimony of the defendant. Counsel for defendant moved to strike out the testimonies of the defendant. The judge did not rule on the motion of the defendant’s counsel, I would assume to strike out the testimony but requested to waive the right of the defendant, later the judge asked to defer his ruling on the motion. Is the judge correct? Medyo halo kasi yung tanong. Ganito ko sasagutin yan para makatulong sainyo. In a scenario class where the plaintiff served written interrogatories to the defendant, take note that he is not obliged or even the defendant to present that written interrogatories. In fact class if you apply RULE 25, the written interrogatories is only a requirement to be able to call, who? The adverse party on the stand, that is a prereuqisite. So kukunin ko interrogatory... I will give you a clear example. I would like to call him onthe stand, I am the plaintiff he is the defendant, my lawyer wants to call him on the stand. My lawyer cannot call him, unless as a rule, we served a written interrogatories, yun lang ang purpose nun. So that he will not be caught by surprise. If you want that marked, no problem but the fact of marking it is not an issue at all. Do you follow? It will not affect you case.

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Now, let us look at another question. Does administrative matter...you are referring to the guidelines. Make the duration of any bond issued in criminal or civil action, special proceedings or any proceeding be from the approval of the court until the action or proceeding is finally decided, resolved or terminated, if so does this repeal §2(a) of RULE 114, he is already referring to rules in criminal procedure on bonds, bail bonds. I still remember I was in court two weeks ago, in one of my hearings and I remember this question. Ok! The guideline class, administrative matter when it says duration of effectivity of the bond is only some sort of a security, to make it known to the bonding company that it should be effective that annually once it expires if it is a corporate bond, you will have to pay for it. I recall that there was a similar statement outside of the courtroom where I appeared sabi: Please bear in mind that a bond issued will be effective until the termination of the case. That is a commitment that they require from a bonding company. Such that the bonding company will not immediately cancel it but it is the duty of the applicant to pay it on a regular basis. Can permissive counterclaim be included in a motion to dismiss? I cannot follow the question but I would like to assume that ah...CAN WE FILE A MOTION TO DISMISS OF A PERMISSIVE COUNTERCLAIM? I would like to read it that way. First I will answer it this way, if it is not enumerated as a ground for dismissal on a motion to dismiss under RULE 16 §1 it is not a ground. Do you follow? If I read it the way I want to read it, if I could file a motion to dismiss on a permissive counterclaim. Why not! Yes you can because a permissive counterclaim is a stand alone case besides that is why you are required to pay a filing fee. In a writ of execution pending appeal, can we stay the execution by a Temporary restraining order? This is a question that can create a number of complications, why? In an execution

pending appeal can we stay the execution by temporary restraining order? Well class, you have to look at it this way. You have a judgment, a judgment could be an ordinary judgment, correct?! an ordinary judgment or a judgment which is executory by its nature. Do you follow? Let us look at it as an ordinary judgement, can you stay it by temporary restraining order? If there is a clear and unmistakable right, if you could establish the existence of an issuance of an injunction, temporary restraining order why not. However when you talk of executory judgment it is a different scenario. Why? For example ejectment, by law at the level of the MTC and by jurisprudence it is what? EXECUTORY. Can it be stayed? YES! According to §19 of RULE 70 – by filing a notice of appeal, posting a supersedeas bond to cover you arrears and to deposit on a monthly basis your rentals before the appellate court, that stays. However, at the level of the RTC as an appellate court. It is what? Once it renders adecision it is executory and cannot be stayed. Do you follow? And according to the Benedicto case unless you secure a TRO, the decision of the RTC confirming or affirming the decision of the MTC will have to stand. Do you follow? So you have to treat it differently. The next is, if the court did not issue a writ of execution, can we have a remedy of mandamus? Let us try to ask this question, in fact I have a case here involving mandamus. I would have discuss this later on but I will discuss it now, on what is the concept of mandamus. Let us look at the case of Uy Kiaw Eng vs. Dickson Lee a 2010 case. What is MANDAMUS? It is a command from a court of law of competent jurisdiction in the name of the sovereigndirected to some inferior court, tribunal or board or to some corporation, requiring the performance of a particular duty therein specified which duty results from the official station of the party to whom the writ is directed or from operation of law. This definition recognizes the public character. So

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mandamus is an action of public character and clearly excludes the idea that it may be resorted to for the purpose of enforcing duties in which public has no interest. So please take note that this is what? A prerogative writ, it is of public characterand therefore what is the answer? If the court by law considering that the judgment has attained finality, should be acting on the execution and refuses to do so, he could be required to act upon by mandamus because that is an act of public character. Ok! And he could be enjoined. Ok! Because class once it attains finality it is a matter of right, he has to conform. Do you follow? It is ministerial for him to issue it. He does not even have to exercise what? Discretion, it is a different matter if it is execution pending appeal because he needs to exercise discretion. Ok! So I will... what time is it? Ano nang oras? Ayan 12:20. Pwede pa pala tayo. Sandal lang, saying din yang 10 minutes. Bibigyan ko lang kayo ng pasakalye nung PROVISIONAL REMEDIES. I would like to remind you that please do not miss RULE 46-55! Ok! I will give you a run down before I touch on provisional remedies. Class, RULE 46 tells you of the original action of the Court of Appeals. Original actions in the Court of Appeals. Take note that the Court of Appeals can conduct a hearing. The Court of Appeals in original actions can direct a trial court to conduct a hearing and report to them. An annulment of judgment class is an original action in the Court of Appeals. How about a PRELIMINARY CONFERENCE? Take note of this, you also have a preliminary conference in the Court of Appeals. I will repeat, you have a preliminary conference on SUMMARY PROCEDURE, you have a preliminary conference today according to the guidelines on modes of discovery BEFORE THE CLERK OF COURT on ordinary actions and you have preliminary conference before the COURT OF APPEALS. Absent of the appellant during the

preliminary conference will cause the dismissal of the appeal. The next question is, WHAT HAPPENS DURING THE PRELIMINARY CONFERENCE? Can the parties stipulate on facts? YES! If it is an original action. Can the parties enter into a compromise? YES, even in the Court of Appeals. Should motions be heard in the Court of Appeals and the Supreme Court? As a GENERAL RULE: NO! There is no need of notice of hearing in the Court of Appeals and Supreme Court. Sir, where is that found? RULE 49 §3. Unless required by the appellate court, motions are not heard in the appellate courts. But please take note although both motion for reconsideration in the trial court and in the appellate court are filed within the period of 15 days, the period of its resolution is different in the trial court and the appellate court. In the trial court, motion for reconsideration should be resolved within a period of 30 days, in the appellate court including the Supreme Court it should be resolved within the period of 90 days. As a final point on this rule, 55. Jurisdiction of the Supreme Court is it 56? It is 56! Ok! Supreme Court. Take note class as I end my discussion on this. Take note that the Supreme Court has original actions. Actions could originally be filed in the Supreme Court and it also has appellate jurisdiction. What are the original cases to be filed in the Supreme Court? 1. Certiorari; 2. Prohibition; 3. Mandamus;

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Dean Tranquil S. Salvador III A T U R E

4. Quo Warranto; 5. Habeas Corpus;

7. Actions against ambassadors, ministers and ministers plenipotentiary; 8. Actions involving tax impost; 9. Constituionality and validity of treaties, executive agreements, ordinance and law, as provided for under the constitution.

EFFECT OF NON-COMPLIANCE

6. Disciplinary action against members of the bench and bar;

Now class, briefly as an exercise – can the Supreme Court have original jurisdiction? YES! What is the petition that you have to file in appealed case in the Supreme Court? PETITION FOR REVIEW ON CERTIORARI, only petition for review on certiorari. What time is it? 12:30 na? Totoo na?! Ok! So I will give you a break, we will be back at 2 o’clock. I expect to cover the remaining items on civil procedure in 30 minutes and then I will start with criminal procedure. Ok! Ok! We are now on our final 4 hours, we will have a break at 4 o’clock. I will try to answer first one question which is civil in nature. WHAT ARE THE DISTINCTIONS BETWEEN RULE 27 AND SUBPOENA DUCES TECUM? The distinction is very clear. RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

N

SUBPOENA DUCES TECUM

It is a process requiring the party or

A mode of discovery

The consequences of non-compliance is found in RULE 29. There is nothing really express in terms of arrest or contempt because even in noncompliance with modes of discovery like refusal to answer a deposition question, you could be compelled to answer, you could be placed in contempt or even arrest you will find that in RULE 29.

the person in possession to bring the documents. You could treat this as a COMPULSIVE PROCESS.

It is clear that the compulsive process can be applied.

Let us go now to PROVISIONAL REMEDIES. This will be very quick, not quick that in a sense that in a few minutes it is over. I will try to simplify it as possible. I would want to be very brief and concise, to make it clear as possible. The case of Mangila vs. Court of Appeals. When should jurisdiction over the defendant be acquired? Some of you may be surprised. Bakit kailangan pa yang jurisdiction? Class kindly take note that under RULE 57 if I am accurate. I am accurate that is 57 but I am just not so accurate if it is §5. It tells you that in §5, service of summons should be prior to or contemporaneous with the order of attachment. That leads us to the standing rule that AT THE TIME OF THE FILING OF THE COMPLAINT jurisdiction over the person, over the defendant is not required, AT THE TIME OF THE ISSUANCE OF THE ORDER OF ATTACHMENT jurisdiction over the person of the defendant is not required because it could be issued exparte. JURISDICTION OVER THE PERSON OF THE

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DEFENDANT IS REQUIRED DURING THE IMPLEMENTATION OR ENFORCEMENT OF THE ORDER OF ATTACHMENT. Do you follow? And that could only be enforced on someone to whom the court had already acquired jurisdiction. The order cannot be served upon him if jurisdiction has not been acquired over his person. Are we clear? So again, jurisdicition over the person of the defendant to whom the order of attachment is to be enforced is only required when? When the writ of attachment is to be enforced. Do you follow? At the time of the filing of the complaint, ok lang because the court could examine the complaint ex-parte; without notice to the other party. When the court issues the order granting the attachment, should the party be notified? NO! BUT AT THE TIME OF THE ENFORCEMENT, JURISDICTION SHOULD HAVE BEEN ACQUIRED OVER THE PERSON OF THE DEFENDANT. Now, the next case is Yu vs. Nguyen this is a 2007 case but it is important for evidence required for wrongful attachment. The key provision here class when you talk of wrongful attachment if RULE 57 §20, if you could recall and to make your review easy I would to tell you that your §20 RULE 57 APLLIES TO ALL PROVISIONAL REMEDIES, except SUPPORT. If there is wrongful support or the person giving support should not have given one or the person receiving is not entitled to support – what is the remedy? It is not claim for damages BUT REIMBURSEMENT. Do you follow? Reimbursement, it is not damages. Let me lay down for you the rules of when to apply. I am not yet discussing the case I am just giving you a background of when to apply. You will have to apply it for as long as the action is pending for IRREGULAR, IMPROPER OR EXCESSIVE ATTACHMENT for as long as the action is pending, in fact it tells you during trial before appeal is perfected right? Or before judgment becomes final. So class at the point in time for as long as the action is pending – could you apply for damages? YES! Sir, on appeal? If the

case has been appealed, can I apply for damages by reason of wrongful attachment? YES! You could apply BUT THE RECEPTION OF EVIDENCE will always be with the trial court. Ok! The reception of evidence will always be with the trial court. The only exception wherein the court will allow reception of evidence EVEN AFTER THE CASE HAS BEEN TERMINATED is when there is a motion to dismiss and there was no opportunity on the part of the defendant to present his side. Now, let us touch on the case of Yu vs. Nguyen. The first item that I would like to touch here is WHAT CAN YOU RECOVER FOR WRONGFUL ATTACHMENTS? WHAT KIND OF DAMAGES CAN YOU RECOVER? As a rule you could recover actual damamges. However, number two IF IT IS NOT ONLY WRONGFUL BUT IT IS LIKEWISE MALICIOUS. The issuance of attachment is wrongful and malicious, you could recover BOTH MORAL AND EXEMPLARY DAMAGES. Ok! Let us look at the award of damages. HOW DO YOU PROVE YOUR CLAIM FOR DAMAGES TO BE ENTITLED TO DAMAGES? You have to prove with the best evidence available the fact of loss or injury and that which you suffered and the amount thereof. Again you will have to prove with the best available evidence THE FACT OF LOSS OR INJURY THAT YOU SUFFERED AND THE AMOUNT THEREOF. Now, let us look at class the case of Metro Inc. vs. Lara Gifts and Decor. Ok! Let us look at this. This case zeroed in, in one of the grounds for attachment. Class if I were you I will memorize §1 of RULE 57, madali lang yan. Ilan ba yan? Anim lang naman yan eh. Ha?! Tama ba ako anim? YES! Class if I were you I will do that. So I will zero in on §1(d) of RULE 57 – what is that? THERE WAS FRAUD IN CONTRACTING THE OBLIGATION OR IN THE PERFORMANCE THEREOF. These are two different grounds in one subsection. One if not for the fraud, you would not have entered into the transaction

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and the other one is you entered in as plain and simple an arms-length transaction but in the course of its performance you committed fraud. WHAT IS THE RULE? When the writ of attachment is issued upon a ground which is at the same time applicant’s casue of action, the only way that the writ can be lifted or dissolved is by posting a COUNTER-BOND. Take note of this, I know you have studied §12 and 13 on the ways to dissolve. Let me give a rundown before I repeat the rule. What is the rundown? It could be dissolved upon posting of a counter-bond for as long as the writ has already been what? Enforced. Do you follow? Hindi pwedeng you try to anticipate and oppose the counter-bond, you cannot do that. Do you follow? THE WRIT OF ATTACHMENT SHOULD FIRST BE ENFORCED BEFORE YOU POST A COUNTER-BOND. Now, the next question is HOW ABOUT IF THE GROUND FOR DISSOULTION OR DISCHARGE IS IRREGULAR, IMPROPER OR EXCESSIVE ATTACHMENT? What is an IRREGULAR ATTACHMENT? We say irregular when the process or procedure was not complied with like: 1. an attachment was issued without a bond; 2. an attachment was issued without an affidavit. Do you follow? That is what? THAT IS AN IRREGULAR – because the procedure was ot followed. HOW ABOUT IMPROPER? It is improper when there is no ground under §1. If none of those enumerated in §1 is present, then it is improper. EXCESSIVE – too much to which he was entitled.

WHAT IS THE RULE? The rule says according to the Metro Inc. Vs. Lara case, when the writ of attachment is issued upon the ground which is at the same time the cause of action. Ok? Sir, is it possible that the ground is not the cause of action? YES! It is possible like, he does not reside in the Philippines. Do you follow? The defendant does not reside in the Philippines, that is not the cause of action. Do you follow? Therefore you could present other gorunds but here WHEN THE GROUND IS LIKEWISE THE CAUSE OF ACTION THE ONLY WAY THE WRIT CAN BE DISSOLVED IS BY COUNTER-BOND. Now, let us look at the case of Rural Bank of Sta. Barbara vs. Manila Mission – motion to release. In this particular case what was filed was a motion to release property from attachment. So that court was in a quandary... ano ba itong finile mo?! Motion to release property from attachment but the court later on figured out that the person who filed it was not a party to the case so the court treated it as a mere continuation of the third-party claim. So the motion to release, the court said, was hinge to the third-party claim or the court said it could be alternatively treated as a motion to intervene. Magaling vs. Ong, IN THE DISCHARGE OF ATTACHMENT IS HEARING REQUIRED? Ayan! Is hearing required in a discharge of an attachment? What did the court say in the case of Magaling vs. Ong – DISCHARGE OF ATTACHMENT FOR HAVING BEEN IMPROPERLY OR IRREGULARLY ISSUED HEARING IS REQUIRED. Ok? When is a hearing required for discharge? When the ground is improper or irregular issuance. In the absence of a hearing, there will be no discharge if the grounds are improper or irregular issuance. Ok! The next is Security Pacific vs. Triunfante – DOES A POSTING OF A COUNTER-BOND AUTOMATICALLY DISCHARGES AN ATTACHMENT? NO! Mere posting of a counterbond does not automatically discharge the

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attachment. Only after hearing and only after the judge orders the discharge in a cash deposit or counter-bond. So class, the mere fact of posting will not discharge, the court should still come up with an order of discharge, after accepting the cash deposit or the counter-bond. Now, before I leave that item on attachment let me ask you this question. This next question was already asked in the bar exams kaya lang multiple choice na ngayon sigurado napakaraming tanong. Tinanong na ito, I am not too certain kung 2006 o 2007. This was a 2004 case, this was asked...5..6.. ah 2007! The case of D.M. Wenceslao vs. Redicon Trading. This case said that the posting of the counter-bond is not tantamount to a waiver of the right to damages arising from wrongful attachment. I would like to be very clear, THE MERE FACT THAT YOU POST A COUNTER-BOND DOES NOT MEAN THAT YOU WAIVED YOUR CLAIMS FOR DAMAGES. Again, the mere postiung of a counter-bond does not mean that you waive your right to damages. Now, let us now touch on...before I move on to preliminary injunction. Please take note class that the attached properties are used for what purpose? THE ATTACHED PROPERTIES ARE USED AS A SECURITY. Ok! It is not yet used to satisfy the judgment therefore class AFTER A FINAL AND EXECUTORY ATTACHMENT THE ATTACHED PROERTIES WILL BE APPLIED FIRST. If there is money it will be applied first then real and personal properties and if there is an excess it will be returned – but if the attached properties are nto sufficient what happens? The winning party will have to go through regular or ordinary execution. Take note of that, if the attached properties are not sufficient to cover the judgment, you will have to go through ordinary execution. Now, let us look at the case of Dela Cruz vs. DECS the same requisites as cited in the case of Medina vs. Greenfield case it enumerated the

requisites of PRELIMINARY INJUNCTION. Ok! Now, before I give the requisites of preliminary injunction. Let me ask you – can there be an INJUNCTION AS A PRINCIPLA ACTION and not as a provisional remedy? YES!!! Injunction is a judicial writ, process or proceeding whereby a party is ordered or refrain to do such an act. This is the case of Garayblas vs. Atienza, class I would like to repeat you can have an original action not a provisional remedy of injunction and in that principal action for injunction you could still ask for preliminary injunction and temporary restraining order. Let me touch on the requisites as I have mentioned a while ago: 1. there should be a clear and unmistakable right, meaning there should be a right in esse; 2. there is a violation of such right; 3. there is a need to protect from clear and irreparable injury. Class in a TRO and a Preliminary Injunction is a hearing required? YES! The hearing is what? SUMMARY ok! The hearing is summary – and what is to be presented? Only sampling of evidence, when I say sampling of evidence it does not mean photocopy, it does not mean sample. When I say sampling of evidence, it means that evidence which is sufficient to establish the TRO or Preliminary Injunction. Ok! The case of Limitless Potential vs. Court of Appeals, dissolution of the injunction even if the injunction was obtained in good faith amounts to a determination that the injunction was wringfully obtained and the right of action in the injunction bond immediately accrues. Take note, I will repeat, dissolution of the injunction even if issued in ggod faith amounts to a determination that the injunction was wrongfully obtained and the right of action in the injunction bond accrues.

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Now, let me touch on a few more items on injunction. Class, preliminary injunction – what is the period of a preliminary injunction? Ah may period ba yun?! For as long as the action is pending the preliminary injunction is in effect. But are you aware of the amendment of RULE 58 in relation to rule 65 dated Decmber 2007 – that if a court or tribunal issues a preliminary injunction it is incumbent for that court or tribunal to resolve the main case WITHIN A PERIOD OF 6 MONTHS. Ok! Gone were the days that if you got a prelimnary injunction the case could linger for years. Today class as of December 2007, you could check that in your codal in RULE 58 in relation to RULE 65 the issuing court has to resolve the main case within a period of 6 months.

in a multi-sala court, there are numerous judges like in Makati more than 20. Do you follow? In Manila more than 40, do you follow? That is a multi-sala court, te executive judge of that court appointed by the Supreme Court can issue ex-parte TRO for 72 hours. Are we clear? When I say a presiding judge of a single-sala court, it means there is only one judge in that area and this is very common in the provinces; 2. the next kind of ex-parte which was a part of the amendment in 2007 was...IF THERE IS A GRAVE OR IRREPARABLE INJURY. Ok! The court, not the executive judge, the judge of a regular branch to whom a case is assigned can issue what? A 20-day ex-parte TRO WITHOUT NOTICE AND HEARING. A regular court judge if there is a grave orm irreparable injury, can issue a 20day TRO without notice and hearing.

Now, take note of my next statement. The TRO in the trial court has a period of 20 days not subject of renewal, not subject of extension. In the Court of Appeals a TRO is for a period of 60 days. In the Supreme Court, a grant of TRO has no period, unitl futher orders of the court. Let me touch on EX-PARTE TRO, is tere an exparte TRO? How many ex-parte TRO do you have today? Take note that your §5 was likewise amended in 2007. 1. the first kind of ex-parte TRO is that which is issued by an EXECUTIVE JUDGE for a period of 72 hours, an executive judge of a MULTI-SALA COURT. Is there a need of a hearing? NO! He could issue that ex-parte, thereafter the case will be raffled and the judge to whom it is assigned will determine whether that 72 hours will be made to 20 days or plus 17 days. Do you follow? ONLY AN EXECUTIVE JUDGE OF A MULTI-SALA COURT CAN ISSUE 72 HOURS OR A PRESIDING JUDGE OF A SINGLE-SALA COURT. Class when I say an executive judge

The next question that I will ask you is this – can a judge issue a preliminary injunction without a notice and hearing? NO! That is a BIG NO NO! You cannot do that. The judge will be sued administratively for doing that. The concept of injunction is to prohibit, that is one, or the other one is mandatory which is to enjoin and before I proceed further please take note class that under the ADR Law, provisional remedies as the one that I have been discussing right now can be instituted as an original action in aid of an arbitration case. Before I go to receivership I just want you to take note of this – on how to dissolve an injunction? INSUFFICIENCY is a ground for DENIAL but not for dissolution. Again,

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insufficiency is a ground for denial but not for dissolution. Submission of affidavits is a ground for dissolution and denial. What else? Posting of a counter-bond is not only simply posting a counter-bond as basis for dissolution, it should be coupled with this statement THAT THE DAMAGE TO BE SUFFERED BY THE APPLICANT OR BY THE PERSON POSTING THE COUNTERBOND IS FAR GREATER THAN THAT OF THE APPLICANT, plus post a counter-bond. Ok! Di lang sapat na magcounter-bond ka, that the damage to be suffered by the applicant or by the person posting the counter-bond is far greater than that of the applicant. Let us now proceed to RECEIVERSHIP. What about receivership? Class on receivership, you have to take note that this is a provisional remedy that is used to protect the property or the subject of the controversy from being wasted or dissipated and this is the only provisional remedy class where you have 2 BINDS. Ok! Dalawa yun, the BOND OF THE RECEIVER and the BOND OF THE APPLICANT. This is also the ONLY PROVISIONAL REMEDY THAT COULD BE APPPLIED FOR EVEN IF THE JUDGMENT IS ALREADY FINAL AND EXECUTORY. You could apply for receivership even after the judgment has become final and executory and the reason for this is also found in RULE 39 §41. Now, let us look at class. HOW TO DISSOLVE A RECIEVRSHIP? You could dissolve a receivership, you could dissolve or discharge by saying there is no casue for the continuation of the receiver and upon posting a counter-bond. Let us look at REPLEVIN. Ok?! Replevin. If I were you I will memorize the contents of a replevinaffidavit. Ok! I will memorize: 1. that you are the owner – lawful owner or possessor;

2. that the same has not been subject of levy, attachment or not in custody of the court; 3. the ground is DETENTION OR DEPRIVATION

WRONGFUL THERE IS

4. the FAIR MARKET VALUE of the property. Replevin is the only provisional remedy where the BONS IS DOUBLE THE VALUE OF THE PROPERTY. Take note of the case of Superlines Transportation vs. PNCC which says PROPERTY HELD AS EVIDENCE IN A CRIMINAL CASE CANNOT BE SUBJECT OF REPLEVIN. Ok! Are we clear? If property or objects are OBJECTS OF CRIMES OR TO BE USED AS EVIDENCE IN A CRIMINAL CASE IT CANNOT BE SUBJECT OF REPLEVIN. It is in the nature of custodia legis. The case of Dagudag vs. Paderanga, forest products detained by the Bureau of Forest Development is not subject of replevin like logs recovered from illegal loggers. Forest products detained by the Bureau of Forest Development is not subject of replevin. Let us now look at the last provisional remedy which is SUPPORT. Ok! SUPPORT PENDENTE LITE. This is the only provisional remedy where there is no requirement of a bond because the person is asking for support. This the only provisional remedy wherein wrongful support or there was an error in giving support is not subject of damages but subject of reimbursement. This is also the only the provisional remedy where there is an express provision for criminal cases for offsprings which were results of commission of offense. Ok! Kindly take note if the case is still pending and there is wrongful support, you could recover in the same action but if there is already a judgment, you will have to recover it in a separate action.

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Now, let me give you a rundown of a few items more before I move on to criminal procedure. Let us look at DECLARATORY RELIEF. It is in RULE 63, Malana vs. Papa. Declaratory relief presupposes that there is no breach. Ok! NO BREACH!!! Once a breach is committed, there will be a conversion from a special civil action to an ordinary civil action. Please take note that declaratory relief is not limited to interpretation or determination of validity by the cour, it also includes other similar remedies like quieting of title, removal of cloud, reformation and what else? Consolidation is included but please take note for those of you who are curious about consolidation, it refers not to foreclosure of mortgage – it refers to a pacto de retro sale. WHICH COURT HAS ORIGINAL JURISDICTION OVER ACTIONS FOR DECLARATORY RELIEF? Liga ng mga Barangay vs. Atienza, the REGIONAL TRIAL COURT. Declaratory relief is in the original exclusive jurisdiction of the trial court unless of course there is question on constitutionality, in which case the Supreme Court can have original jurisdiction on constitutionality, even the Court of Appeals. Now, let us now look at an example on INTERPLEADER. What do you have to remember about interpleader? You just have to remember in the case of Ocampo vs. Tirona, the action of interpleader is a remedy whereby a person or his property whether personal or real or an obligation to render wholly or partially without claiming any right in both. IN SIMPLE WORDS THERE ARE TWO CONFLICTING CLAIMANTS AND YOU HAVE NO INTEREST AND IF YOU AHVE AN INTEREST, YOUR INTEREST IS NOT IN CONFLICT WITH THEM. So what do you do? You institute an action for interpleader to ask the courts to determine the rights of the conflicting claimants. The classic example of this is the claims of a spouse and someone who claims also to be as the spouse of a deceased insured individual, this is a classic example. So when the

person died there was a named beneficiary, the spouse, but someone comes forward “ako ang asawa talaga!” and presents a marriage certificate, both of them have marriage certificate. So to avoid damages, what will they do? What will the insurance company do? They will file an action for interpleader so that they will determine their rights. Class , the next item is PETITION FOR CERTIORARI under RULE 64. Class, RULE 64 is a petition for certiorari please bear that in mind... Ha sir?! Hindi ba 65?! 64!!! Is a petition for certiorari FOR REVIEW OF JUDGMENTS OF COA OR COMELEC. Ok! Petition for certiorari yan ah! Review of judgments of COA or COMELEC. The next question is, WITHIN HOW MANY DAYS CAN YOU FILE A PETITION FOR CERTIORARI UNDER RULE 64? Within a period of 30 days and there is no extension. I will not take much of your time on certiorari, prohibition and mandamus because I have slightly discussed that and I do not want to waste time. Except that I would like you to bear this in mind CAN YOU FILE AN EXTENSION OF A PETITION FOR CERTIORARI, TODAY? Is there an extended period? Could you file a motion for extension? Based on the amendement of 2007 you can no longer file what? AN EXTENSION. If your codal proviosion still has 15 days, that has already been amended. So if you are asked in the bar exams, the petition for certiorari under RULE 65 cannot be extended. It is a fixed period of 60 days. A while ago I discussed mandamus, let me now touch on the recent case on mandamus that I feel I have to touch on. In this case 2010 case of Uy Kiaw Eng vs. Nickson Lee it say that recognized in this jurisdiction is the principle that MANDAMUS CANNOT BE USED TO ENFORCE A CONTRACTUAL OBLIGATION BECAUSE IT IS NOT AN OBLIGATION OF PUBLIC CHARACTER and it is a prerogative writ. Bear in mind in this case, the question was about the

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original holographic will. Yun ang pinagtatalunan, gusto i-mandamus. Yung may possession or custody ng holographic will gusto niya i-mandamus. What did the court say? Without unnecessarily ascertaining whether the obligation involved in the production of the original holographic will is in the nature of public or private duty, because that is the determination for mansamus, rules of the remedy of mandamus cannot be availed of by respondent Lee if there lies another plain, speedy and adequate remedy and what is that plain, speedy and adequate remedy when you talk of a holographic will? For that purpose according to the court, the party is not prevented from instituting probate proceedings and require presentation of copies thereof. Do you follow?! So here, how was it attacked? There is a plain, speedy and adequate remedy therefore mandamus will not lie. They did not even determine whether it is a public or private character. Let us now proceed to QUO WARRANTO. Just one point on quo warranto class. Calleja vs. Panday, which court has jurisdiction when iy comes to quo warranto involving USURPATION OF OFFICE IN A CORPORATION? Ok! Not usurpation of public office but usurpation of office in a private coraporation, which court has jurisdiction? The REGIONAL TRIAL COURT having special jurisdiction or what you call the COMMERCIAL COURTS.

based on a public purpose. There should be a necessity, necessity must be of public character. In this case of Masikit, what happened was the basis of an expropriation was through an ordinance which says that the intended beneficiaries where the Melendres compound homeowners association, a private non-profit organization of residents. Can you follow? It already violated the requirement of the law. Ok! I already mentioned partition a while ago and I mentioned ejectment and contempts. So I will now proceed to CRIMINAL PROCEDURE. I will start class with what I said yesterday, the case or the petition for radio and television coverage of the multiple-murder cases against the Maguindanao governor Zaldy Ampatuan et. al. and this included the letter of President Benigno Aquino to the Supreme Cour asking for tv coverage on this. How did the Supreme Court resolved this? As I mentioned to you yesterday the resolution on this case is for this particular purpose pro hac vice, for this particular purpose and they have enumerated how the guidelines on tv coverage. In the past, they were guided by the Corazon Aquino libel case and the Joseph Estrada plunder case of 2001, that recording will only be allowed for historical or documentary purposes. To allow a broadcast of this will be in violation of the rights of the accused. Ok! So how did they treat it? I will enumerate to you the guidelines that they have enumerated. According to them:

Now on matters of EXPROPRIATION I will not delve too much on expropriation. Please take note that THERE ARE TWO STAGES ON EXPROPRIATION and please take note based on the case of NHA a COMPLAINT OR A PETITION FOR EXPROPRIATION CAN BE WITHDRAWN AT ANYTIME, BEFORE AN ORDER OF EXPROPRIATION. However, if damages has been suffered by the property now subject of the withdrawal of the petition the government will have to pay for damages. Now, Masikit vs. City of Pasig, the need for expropriation must be

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1. audio-visual recording of the proceedings maybe made both for documentary and for transmittal to live broadcast. Ok! So it is used for documentary and if you wish, transmittal for live broadcast; 2. the media entities must file with the trial court a letter-application, there should be a letter-application



directed to the trial court where the case is pending; 3. there should be no selective or partial coverage – hindi mo pwedeng galitin ang tao sabihinm mo ipapakita mo lang itong portion na to. Do you follow? Or you will highlight only this portion. You will have to show the entirety; 4. there should be a single fixed compact camera – when you say single fixed compact camera, that would cover the entire room or area with no need of panning, hindi ka pwedeng magzoom, hindi ka pwedeng magpan. Hindi pwede! Basta yun lang kukunan mo lang; 5. the broadcast for a particular day must be continuous in its entirety; 6. there shall be no commercial breaks, unless there is already adjournment or there was a recess; 7. there is no voive overs, meaning no opinions except brief annotations as may be necessary to explain them at the beginning and at the end. So hindi pwede yung mga opinion katulad sa radio na marooning pa sila, hindi pwede yun! Ok!; 8. finally, no repeat airing, if it is shown now , live...you watch it. It cannot be viewed later on replay. It should be a live airing and once shown cannot be repated. Until after the finality of judgment. This is something new class, that is why the Supreme Court if you would notice, does not want ot be tied down in this case. That is why they said at the outset this is for this particular

pupose-pro hac vice. Do you follow? For that particular purpose only, because in the future if they do not say that baka matali sila eh. Right? And they felt the need to come up with these because of the numerous victims and their families who would want to see the outcome of the case plus the accused themselves nd theire families. I hope that is clear, kapag sinama nila at least may working knowledge kayo kung ano yun. Now, let us start with the case of...what time is it? 2:55 accurate itong aking timer. Kayo naman nadito na rin kayo eh di makinig na lang eh nagmamadali pa kayo. Ano bang papanoorin niyong sine na naman mamaya? Ano ba yung showing? Transformer no! Ayan! Manonood na naman kayo ng sine. Alam niyo ako noon nung nagrereview ako kapag nanonood ako ng sine yung wala nang pumapasok sa utak ko, meaning have you had thet chance or taht experience wherein you are sitting down and you keep on reading you understand every word but as if nothing is in...o ba’t parang lahat kayo?!(chcuckles) at that point in time class may be you have to stop because you are tired. Just like last night, I came from here I wanted to read and when I started reading frist I got a call then I wan to read, I started reading at some point in time around 10:30 sabi ko pagod na talaga ang utak ko, pagod na so what I did was to sleep. Kapag pagod na itulog niyo. Hindi ko sinabing i-sine niyo. Itulog niyo!!! For the next day, ok! So that you have energy for the next day. Now class, the case of Isip vs. People is the reiteration of a long standing rule that the place where the criome was committed determines not only the venue of the action but its essential elements. Ok! This is a repetition that VENUE IS JURISDICTIONAL. Unless of course the place fo commission is the place where you will institute the action but if it is a transitory offense or a continuing offense for example a BP 22 case – where could you institute the

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action? You could institute it in the place of issue or the place where the check bounced. Class, you could file in the place of issue or in the place where the check bounced. At whose option? The filing party, but I would suggest, if you want to become lawyers you file it in the place where the check bounced. Jurisdicition of the RTC as a SPECIAL AGRARIAN COURT. Sir, why did you even touched on special agrarian court? We are already in criminal procedure. Listen to this, the exception to the DAR’s original exclusive jurisdiction are: 1. all petitions for determination of just compensation; 2. the prosecution of all criminal offenses under RA 6657. Which are within the jurisdiction of the RTC SITTING AS A SPECIAL AGRARIIAN COURT. Do you follow? Ulitin ko, all matters pertaining to agricultural tenancy falls within the DAR. However, there are two items which will go to the regular courts, subject to judicial determination: 1. to determine just compensation; and 2. all criminal offenses under RA 6657. Which are within the jurisdiction of the RTC sitting as an agrarian court. Yesterday I discussed in class jurisdiction of courts. Right?! I disussed that yesterday. Now, let me start with the SANDIGANBAYAN. People vs. Sandiganbayan. Public office as constituted element of the offense. WHAT DOES THIS MEAN? According to the court, as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance of his office then it will fall within the jurisdiction of Sandiganbayan. What do you mean by this? In simple words WITHOUT THE OFFICE THE CRIME WOULD NOT HAVE BEEN

COMMITTED. That the office is the constituted element of the offense. It further said that a simple analysis after a plain reading of the provision shows that those public officials enumerated under §4(a) of PD 1606 as amended may not onle be charged in the Sandiganbayan for violation of the Anti-Graft Law RA 1379 and Title 7 of the Revised Penal Code. Can they be charged with other ordinary offenses? YES! For as long as it is a constituted element of the offense. This abuse your minds that Sandiganbayan cases are only limited to Anti-Graft, Bribery and the like. Do you follow? For as long as the office is a constituted element of the offense and you fall within the proper salary grade of 27 you fall under the jurisdiction of Sandiganbayan. Let me call your attention to the case of Alarilla vs. Sandiganbayan, where the public official was charged with the crime of grave threats. Ok! Ang demanda sa kanya grave threats, eh hindi yan bribery, hindi yan anti-graft but grave threats, but anong sabi ng court? Accused was performing his official duty as municipal mayor when he attended said public heaqring and that accused violent act was precipitated by complainant’s criticism of his administration. So grave threats would not have been committed if not for the exercise of his office. Do you follow?! Now the next question is – CAN A UP STUDENT REGENT BE CONSIDERED AS A PUBLIC OFFICER AND BE PROSECUTED IN THE SANDIGANBAYAN? Do you know this case? The case of Serrana vs. Sandiganbayan. The student regent contends, hindi po ako public officer. I am not a public officer and I do not draw salary from the government. I do not receive a single centavo from the government, therefore I cannot be prosecuted in the Sandiganbayan. Ang nangyari kasi dito class, napagkatiwalaan siya ng pera nung panahon na yun ni Erap and she failed to account for it and she is now being prosecuted. So, how is a public officer defined in this case? A

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public office is the right, authority and duty created and conferred by law for a given period either fixed by law or enduring at the pleasure of the creating power. The Supreme Court said, while the first part of §4(a) covers only officials with Salary Grade of 27 and higher its second oart specifically includes other executive officials whose positions may not be salary grade 27 and higher but by express provision of law are placed under the jurisdiction of the Sandiganbayan. For example itong §4 1(g) let me read it for you and the student regent will fall in this category “the Sandiganbayan has jurisdiction over presidents, directors, trustees or managers of government-owned and controlled corporations, state universities or educational institutions or foundations. According to the court, STUDENT REGENTS fall under this category, the salary grade is immaterial because by express provision of law, the position fall within the jurisdiction of Sandiganbayan. The next question class is this, answered in the case of Esquivel vs. Ombudsman. Where a coaccused is within the jurisdiction of Sandiganyaban. Ano ibig sabihin nun? FOR AS LONG AS ONE OF THE ACCUSED IS SALARY GRADE 27 REGARDLESS OF HIM BEING A PRINCIPAL, ACCOMPLICE OR AN ACCESSORY, FOR AS LONG AS ONE FALLS WITHIN THE JURISDICTION OF SANDIGANBAYAN, EVERYONE FALLS WITH THE SANDIGANBAYAN. Do you follow? As in this case of Esquivel, ang pinagtatlunan nila, as the position of municipal mayor and barangay captains are not mentioned therein, they claim that they are not covered by the said law under the principle of expressio unius est exclusio alterius. But class this has already been answered in the case of Binay that a municipal mayor falls within thye jurisdiction of Sandiganbayan. Considering that the municipal mayor is with the Sandiganbayan, the barangay captain who was part of it as coaccused is also within the jurisdiction of the Sandiganbayan.

The next question is this – WHAT IF THE COACCUSED IS A PRIVATE INDIVIDUAL – there is a public officer who falls within the jurisdiction of Sandiganbayan, salary grade 27 – will the private individual falls within the jurisdciction of Sandiganbayan? YES!!! In the case of Republic vs. Court of Appeals, wherein private contractors of the DPWH were joined as coaccused with nthe officers of the DPWH. Let us now proceed and answer the next question. WHICH COURT CAN ISSUE A HOLDDEPARTURE ORDER? The case of Mondejar vs. Buban, the REGIONAL TRIAL COURT has exclusive jurisdiction to issue hold-departure order. This is based on Circular 39-97, that LIMITS THE AUTHORITY TO ISSUE HDO to criminal cases within the jurisdiction of second level courts, when I say second level courts I am referring to the regional trial court. However class, the DEPARTMENT OF JUSTICE CAN ISSUE A HOLD DEPARTURE ORDER, that is within the power of the DOJ. You have repeatedly heard of this JURISDICTION IS DETERMINED BY THE ALLEGATIONS OF THE COMPLAINT – Foz vs. People. What does it mean? Allegations in the complaint or information does not confer jurisdiction. It is the law that confers jurisdiction. However, it is the allegations that determines. Iba yun! What confers jurisdiction is the law, for the court to know whether or not it has jurisdiction or it can act, it is the allegations that determines jurisdiction. Ok! Let us look at Badiola vs. Court of Appeals. WHAT HAPPENS IF THERE IS A WRONG MODE OF APPEAL? What happens to the petition if there is a wrong mode? The PETITION WILL BE DISMISSED. From a review of the CA on a RULE 43 – review of decisions of quasi-judicial agencies, where will you go from the CA under RULE 43? You will

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go to the Supreme Court on a RULE 45 – PETITION FOR REVIEW ON CERTIORARI. Still on the case of Badiola, this will interest you because the GENERAL RULE is a second MR is not allowed, it is prohibited. As found in §2 of RULE 52. However the court said in the case of Badiola, such motion is a prohibited pleading which shall not be allowed except...that is the general rule, the second MR is a prohibited pleading is a general rule EXCEPT FOR ORDINARILY PERSUASIVE REASONS AND ONLY AFTER AN EXPRESS LEAVE SHALL HAVE BEEN OBTAINED. Still on Badiola, DISMISSAL OF CRIMINAL CHARGE DOES IT CARRY WITH IT DISMISSAL OF THE ADMINISTRATIVE CASE? Ha class?! Nadismiss yung crim... Sir, eh mas mataas yung degree require in a criminal case eh di damay na rin. HINDI! Citing the case of Tecson vs. Sandiganbayan, it simply means that a public officer may be held civilly, criminally and administratively liable. Do you follow? So it does not mean that if a criminal case against a public officer is dismissed, the administrative case is likewise dismissed. These are STAND ALONE CASES. WHAT IS THE POWER OF THE OMBUDSMAN? Ombudsman naman tayo ngayon. Ok! What is the power of the ombudsman, DOJ vs. Liwag, IT WAS GRANTED MORE THAN THE USUAL POWERS GIVEN BY THE PROSECUTORS. But unlike prosecutors class, the Office of the OMBUDSMAN CAN INVESTIGATE WITHOUT A FORMAL COMPLAINT LODGED BEFORE IT. Tandaan niyo yan! Unlike the office of the prosecutor, there should be an affidavitcomplaint, in the Office of the Ombudsman even without a formal complaint lodged before it, it can investigate. It can inquire also on acts of governments agencies based on reports in the media. Take note of this, IT COULD INQUIRE AND INVESTIGATE ON ACTS OF GOVERNMENT AGENCIES BASED ON REPORT IN THE MEDIA

AND THOSE WHICH COME TO HIS ATTENTION THROUGH SOURCES OTHER THAN A COMPLAINT. So sir, pwede palang chismoso ang ombudsman? Ganun ba yun? Kelangan malaki ang tenga mo at kinig ka ng kinig. Ok! The METHOD OF FILING OF A COMPLAINT in the Ombudsman is DIRECT, INFORMAL, SPEEDY AND INEXPENSIVE. CAN THE OMBUDSMAN TAKE JURISDICTION ONLY OF CASES THAT IS IN RELATION TO THE OFFICE? IS THAT A REQUIREMENT FOR THE OMBUDSMAN TO TAKE COGNIZANCE OF THE CASE? SHOULD THE ACT COMMITTED BY THE PUBLIC OFFICER BE IN RELATION TO THE OFFICE? NO. Any act of, any misfeasance, malfeasance, non-feasance will fall within the jurisdiction of the Ombudsman. May kapitbahay ka public officer, binaril mo manok pwede kang idemanda sa ombudsman. Do you follow? Pulis ka, wala ka sa duty baril-baril ka illegal discharge pwede ka sa ombudsman. Do you follow? Kahit wala ka sa duty it does not matter. WHETHER OR NOT IT IS COMMITTED IN RELATION TO THE OFFICE, ANY ACT OF PUBLIC OFFICER CAN BE INSTITUTED – ANY MISFEASANCE, MALFEASANCE OR NONFEASANCE COULD BE INSTITUTED IN THE OFFICE OF THE OMBUDSMAN. Ok! Bear that in mind. In the case of DOJ vs. Liwag, the question is WHICH HAS PRIMARY JURISDICTION TO INVESTIGATE CASES COGNIZABLE BY THE SANDIGANBAYAN? Primary jurisdiction is with the OMBUDSMAN, over cases cognizable by the Sandiganbayan. While the DOJ has general jurisdiction to conduct preliminary investigation involving violations of the Revised Penal Code. But both of them can conduct prelimnary investigation, are we clear BUT ONLY THE SANDIGANBAYAN HAS PRIMARY JURISDCITION OVER SANDIGANBAYAN CASES. IS THE OMBUDSMAN A COURT? NO! It is not a court, it is an investigative agency or body.

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Now, the case of Lazatin vs. Desierto, I have noticed that within the last five years certain questions was taken from OFFICE OF SPECIAL PROSECUTOR which is not part of your Rules on Criminal Procedure. Wala yan! You cannot find it there, office of special prosecutor cannot be found there. WHO IS A SPECIAL PROSECUTOR? Lazatin vs. Desierto – Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision, control and authority of the ombudsman. Again, the OSP is only a component of the office of the Ombudsman. The power to prosecute crimes according to the court carries with it the power to file information and listen to this, which power is not been to the OSP. In the 2010 bar examinations there was a question answerable by this one, by this concept wherein there was information already in the Sandiganbayan, there was a motion to amend it, it was returned and amende by the OSP and the new information was filed, IS THE INFORMATION VALID? NO. Because the OSP HAS NO DELEGATED AUHTORITY TO FILE AN INFORMATION. Let us now move and discuss procedure before the office of the Ombudsman. WHAT IS THE PROCEDURE BEFORE THE OMBUDSMAN? Fairly simple class, according to this caseof Sesbreño ALL PROSECUTORS ARE NOW DEPUTIZED AS OMBUDSMAN PROSECUTORS, based on AO #08. Therefore the resolution of an assistant prosecutor deputized by the ombudsman will be reviewed by whom? By the CITY or PROVINCIAL PROSECUTOR. OK! The deputized public prosecutor of the Ombudsman, the resolution will be reviewed by the City oy Provincial Prosecutor and the resolution of the City or Provincial Prosecutor will be reviewed by the DEPUTY OMBUDSMAN that will ne later approved by the Obudsman.

CAN THE OFFICE OF THE OMBUDSMAN DISMISS A CASE OUTRIGHT WITHOUT GIVING THE OTHER PARTY OR THE RESPONDENT THE OPPORTUNITY TO BE HEARD? YES! The office of the Ombudsman can dismiss a case outright. Let us now look at this case, the case of People vs. Duka. This is important because it defined the DUTY OF THE OFFICE OF THE SOLICITOR GENERAL. It said here, complaint or information shall be prosecuted under the direction of whom? UNDER THE DIRECTION OF THE PUBLIC PROSECUTOR. However class, take note this case of People vs. Duka, when a criminal action reached appeal the Court of Appeals or the Supreme Court, the office of the Solicitor General must represent the People of the Philippines and not the Prosecutor. Therefore in this particular case, there was an error in maing a service of the petition to the prosecutor and not to the Office of the Solicitor General because the sole representative of the State for appealed cases is the Office of the Solicitor General. Let us now proceed, I would like to touch on PRESCRIPTION and I would like to touch on the case of Panaguiton vs. DOJ. Class, I am now referring to RULE 110 §1 last paragraph, that it says that the prescriptive period is interrupted upon filing of the complaint or information. WHERE, that is the question? If it is an ordinary offense, filing before the office of the prosecutor – Brillantes vs. Republic, is a reiteration of the long standing rule. So THE MERE FACT THAT YOU FILE IN THE OFFICE OF THE PROSECUTOR, PRESCRIPTIVE PERIOD INTERRUPTED. HOW ABOUT SPECIAL LAWS? The long standing rule class prior to this case of Panaguiton was cited in your books in ACT 3326 that says, if it covered by special law the period of prescription will be interrupted only when? Upon filing of the complaint or information in court, however at the advent of Panaguiton vs.

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DOJ a 2008 case. Thequestion presented before the Panaguiton case is – HOW ABOUT BP 22 CASES? Of course the contention was that it is a special law but they went on to the narrative of the history of Act 3326 but the Supreme Court said...sandali! sandali! Yang Act 3326 of 1926, kaya sinabi niyan na upon filing in court because at that time the justice of peace can conduct preliminary investigation, sabi nila. Today can an MTC judge conduct a preliminary investigation? Who says yes? NO! A MTC judge today cannot conduct PI, that was an amendment as early as October 2005. So kapag and code sinsabi pa sa §2 of RULE 112 andyan pa yung MTC judge who could conduct PI, i-eks mo siya. Ok! Ibig sabihin luma nag codal mo. So going back to the case of Panagution, what did the court say? Sabi ng court ganun kasi yun nung araw in 1926 but the Supreme Court said and cited the cases of Ingko vs. Sandiganbayan and Sanrio Co. Ltd. sinabi rito class even violation of the securities act an investigation ofm the SEC is considered already an interruption of the prescriptive period because to them it was the commencement of the investigation process.

Sanndiganbayan – WHO IS THE OFFENDED PARTY THAT MUST GIVE CONSENT AND MUST BE NOTIFIED? Doon muna tayo sa CONCEPT ng plea bargaining, ganyan class sumagot ng tanong. Ano ba yung pinag-uusapan natin? Plea bargaining, ok!

Now going back to the question on BP 22 – when will the prescriptive period be interrupted, IT IS INTERRUPTED UPON FILING OF THE INFORMATION IN THE OFFICE OF THE PROSECUTOR, that is the Panaguiton case.

Ang tanong niya dito WHO IS THE OFFENDED PARTY THAT MUST GIVE ITS CONSENT AND MUST BE NOTIFIED? Sino ba ang offended party? Is it the State or is it the Armed Forces of the Philippines. Ok yun ang tanong. Is it the STATE or the AF? Di ko sinama yun Solicitor General kasi wala siyang pakialam dyan, papasok lang siya para reviewhin yung plea bargain kung meron man because he is the counsel of the State. He may be entitled to notice if it is on Appeal. How about yung Ombudsman? Wala nang pakialam yun, basta na-file yung info tapos na yung trabaho niya because an Ombudsman work just like a public prosecutor. To my mind because if you talk of the State, you will be looking at the highest officer of the land. Ok! The offended party here is technically the AFP dahil ang kinuhanan nila ay AFP.

Let us now continue, still on criminal procedure. Class, what time is it? 4...ha what time 4! Ayan mahaba pa, parang gutom kayo ano! Hindi kayo mapakali, gutom na gutom kayo. Relax lang kayo ok! What other items do I want you to take note of, let us try to answer this. Ito na to eh, criminal na! Let us try to answer this question of your classmate ang tanong niya is in connection with General Garcia. Piakliin ko lang ha! Kabit-kabit naman yung tanogn iya eh. Ok! In the PLEA BARGAINING of General Carlos Garcia at the

WHEN CAN YOU ENTER INTO A PLEA BARGAINING? Do you follow? Plea bargaining is A PLEA OF GUILT OT A LESSER OFFENSE. You will first meet that in RULE 116 §1. Nakalagay doon, as a rule DURING THE ARRAIGNMENT the offended party need not be present unless there is a plea of guilty to a lesser offense or there is a plea bargaining because the OFFENDED PARTY SHOULD GIVE CONSENT plus the PUBLIC PROSECUTOR. At anytime AFTER ARAIGMENT BUT BEFORE TRIAL, you could enter into a plea bargaining or plea of guilt ot a lesser offense. So arraignment, after arraignment but before trial can you enter a plea of guilt to a lesser offense? YES! The last instance you could do that is when? DURING PRE-TRIAL FOR A PLEA BARGAINING. Maliwanag? Yun ang huling pagkakataon na pwede mong gawin yun.

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IS A PLEA BARGAIN WITH CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THAT OF GENERAL GARCIA VALID? WHAT IS THE RULE? Because this is a highly controversial question and more or less political and you will be giving a political answer. Ang sagot lang dyan ganito, what is the rule? AS A RULE A PLEA BARGAIN SHOULD BE NECESSARILY INCLUDED IN THE OFFENSE CHARGED. Hindi pwede na yung charge ay murder, sige aminin ko na rape! Hindi pwede yun!!! NECESSARILY INCLUDED IN THE OFFENSE CHARGED. In fact, if it is necessarily included in the offense charged for as long as the offended party is notified and the public prosecutor is notified, even if the offended party is not present during the arraignment, there could be a plea of guilt to a lesser offense, if it is necessarily included in the offense charge. Kaya ko ito diniscuss, ayan na-cover ko na yung plea bargain. Now, let us now touch on...yung mga gusto niyo ganyan eh. Yung mga nasa news. Yan ang mga gusto niyo! Dito naman tayo sa DOWNGRADING, kung may plea of guilt to a lesser offense let us touch on downgrading. Downgrading class is BEFORE PLEA! Ok! Tandaan niyo yun, downgrading of an offense let us say muder to homicide is before plea. Ok! WHAT ARE THE REQUIREMENT: 1. the same should be with notice to the offended party a motion filed by the public prosecutor and with leave of court. Ok! Yun ang requirement nun! HOW ABOUT EXCLUSION? Anong exclusion?! Exclusion of the accused. Remember exclusion here is BEFORE PLEA and for that reason even if you are excluded, does it mean that double jeopardy has set-in? NO! Double jeopardy has

not set-in therefore if later on there is sufficient evidence against you. Can they institute action against you? YES! Ok! The case of Yu vs. RTC of Tagaytay. STATE WITNESS. Doon tayo sa state witness, the pertinent provision class when you talk of state witness is RULE 119 §17 – DISCHARGE OF THE ACCUSED AS A STATE WITNESS. Yan yun class when you talk of state witness. The requirement class is: 1. you will have to submit an affidavit; and 2. you should been arraigned. THE APPLICATION TO BE STATE WITNESS SHOULD BE WHEN? At anytime before the prosecution would have rested its case. Bago, kapag tapos na yan wala na. At anytime before the prosecution would have rested its case. Therefore class, if you are validly and legally declared as a state witness you are already ACQUITTED! Ok! Because you are a witness of the state. Which is differentiated to a state witness under a witness protection program. Take note, there is a state witness under the witness protection program and trhe requisites are the same as under the rules on criminal procedure, EXCEPT that the approval is given by the DOJ and communicated to the city or provincial prosecutor, the downside of a state witness under the witness protection program is what? DOUBLE JEOPARDY WILL NOT SET-IN. Why? Because he has not yet been arraigned, he has not entered a plea, there is no court of comptetent jurisdiction. Do you follow? And there is what? No dismissal without the express content, acquittal or conviction. Do you follow? At that point in time there will still be NO DOUBLE JEOPARDY. Now my next discussion point would be this. Yesterday I discussed amendment in civil cases

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and I touched on substitution but I did not touch on amendment. Ok! CAN AN INFORMATION BE AMENDED? I am referring to RULE 110 §14. The answer is YES! 1. BEFORE PLEA, both as a matter of form and substance; 2. take note AFTER PLEA but only as a matter of form. But it should not stop there; I want to be very clear. It should not stop there. Sir it is a matter of form! NO! IT IS A MATTER OF FORM FOR AS LONG AS IT WILL NOTE PREJUDICE THE RIGHTS OF THE ACCUSED. It could be a matter of form but it will prejudice the rights of the accused then it will not be allowed by the court. Sinabi mo, sir nagkamali lang typographical error, yung edad nung victim hindi siya ano...19...17 pala! Ay hindi! That would prejudice the rights of the accused. Do you follow? Because the penalty will be greater if the same is amended. Do you follow? So after plea, take note that YES as to matter of FORM for as long as it will not prejudice the rights of the accused. Next, hindi ko sainyo didiscussin ang sufficiency of information but I would want you to bear this in mind class i-memorize niyo yung §6 kasi kapag alam niyo yung §6 pasok yan hangga’t §12. So kelanga memoryado niyo yan! Ok because the succeeding sections are bonly descriptions of §6. Let me discuss the THREE-FOLD DUTY OF A PROSECUTOR: 1. to CONDUCT INVESTIGATION;

PRELIMNARY

2. to PROSECUTE THE CASE, because under §5 RULE 110 a criminal case is under his direct control and supervision; and

3. CONDUCT INQUEST PROCEEDING. Unahin ko muna yung preliminary investigation. Sir, bakit mo inuna yung preliminary investigation? Kasi class kapag diniscuss ko yung §1 ng RULE 110 kailangan ko i-discuss ang RULE 112. Ganun yun, so I have to discuss that. So unahin ko itong preliminary investigation. Class ito, after this discussion it is easier for you to understand preliminary investigation. Ganito lang ka-simple yun. Hindi natin pahihirapan. Ganito ang tandaan niyo. Ask yourself “IF A CRIME WAS COMMITTED IN MANILA OR IN A CHARTERED CITY WHERE WILL YOU FILE THE CASE. Dyan muna tayo. If a crime is committed in Manila, it is a chartered city or Quezon City where will you institute the action?! First question. First sub-question, IF IT REQUIRES PRELIMINARY INVESTIGATION WHERE WILL YOU FILE? Office of the prosecutor. Tama yun! Second sub-question, IF IT WILL NOT REQUIRE PRELIMINARY INVESTIGATION WHERE WILL YOU FILE IT? Office of the Prosecutor. Do you follow?! NOT REQQUIRING PRELIMINARY INVESTIGATION FALLING UNDER THE RULES ON SUMMARY PROCEDURE WHERE WILL YOU FILE IT? Office of the Prosecutor. Madali di ba?! Yun lang muna para hindi magulo. Do you follow? Kapag may krimen sa Manila o kung saang chatered city ang magfile ka lang ng kaso assuming that he is not caught in flagrante delicto, ibang usuapan yun inquestbyun, ang usapan dito consummated later nagfile, are we clear?! In this instance, Manila or chartered city where will you file? Whether requiring PI, NO PI or under the rules on summary procedure, IN THE OFFICE OF THE PROSECUTOR. Maliwanag! Now, dito naman tayo sa outside of Manila or IN THE PROVINCES. Ok liliwanagin ko REQUIRING PRELIMINARY INVESTIGATION WHERE WILL YOU FILE? Office of the prosecutor

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because today only the office of the prosecutor, ombudsman, regional state prosecutor, state prosecutor can conduct PRELIMINARY INVESTIGATION. You cannot file it in court. Do you follow? So even in the provinces you file only in the office of the prosecutor, if it requires PI.

follow? Mahaba yung provision, basta pinagrequire ng counter-affidavit PI yun!!! May PI. Do you follow?! Eh sir, paano yung may replyaffidavit, may rejoinder, sa practice na yun. Hindi yan required sainyo ngayon but some prosecutors allow the parties to file that. Are we clear?!

The next question NOT REQUIRING PRELIMINARY INVESTIGATION WHERE CAN YOU FILE IT, IN THE PROVINCES? You could file either before the office of the prosecutor or before the MTC. I would like to be very clear with that MUNICIPAL TRIAL COURT. You could file it before the office of the prosecutor or municipal trial court. WALA NAMANG REQUIREMNT NG PRELIMINARY INVESTIGATION RIGHT?!

The next question now is HOW ABOUT SIR NOT REQUIRING PRELIMINARY INVESTIGATION? WHAT WILL APPLY? Sir may counter-affidavit. ONLY RULE 112 §3(a) will apply. Ok?! Yun lang. The same will apply for summary procedure not requiring PI. Yung 3(a) lang nakita niyo yun? Hangga’t doon lang s a pagsubscribe. Do you follow? That is the procedure to be observed by the prosecutor when there is no preliminary investigation required. Are we clear? Bearing this is mind let us now touch on...iwanan ko muna yun mamaya na ako sa mga warrants. Tandaan niyo yan ha! Didiscussin ko yun warrants in relation to that later on.

NOT REQUIRING PRELIMINARY INVESTIGATION AND FALLING UNDER THE RULE ON SUMMARY PROCEDURE, WHERE WILL YOU FILE? Same, either MTC or office of the prosecutor. Maliwanag?! Yun lang yun. So kapag tinanong kayo bear that in mind, the question where will you file, chartered city? Lahat yan prosecutor class. However class, this is now the time to disitinguish, iba na to. Kasi class, we as lawyers filing in the office of the prosecutor, we only think of SAAN KO I-PAFILE? Do you follow?! But the procedure that is the problem of the prosecutor but as a student you have to know that, as a student who will take the bar exams you have to know that. Now let us try to understand preliminary investigation, ganito lang yun ka-simple. The entire provision of preliminary investigation in RULE 112 §3. Yung buong yan ah! Class yung buong yan! Kapag sinabi kong yung buong yan, kasama yung pagsubscribe sa piskal. Do you follow? Or in his absence or unavailability, before a notary public or any person authorized to administer oath kasama yun and after that raffle, issuance of subpoena and complaint and filing of counter-affidavit, yun ang PI in the simpliest way I could present it to you. Do you

HOW ABOUT PROSECUTION IN COURT? The prosecutor has what? COMPLETE CONTROL AND DIRECTION OF A CRIMINAL CASE. What does that mean? He has to be there. If he is ABSENT as a GENERAL RULE, can the criminal case proceed? NO! All of those criminal cases will be what? CANCELLED AND RE-SCHEDULED AT A FUTURE TIME. Sir, ganun ba yun? OO! Unless, according to §5 you are able to secure a certification from the chief of the prosecution office allowing you to prosecute even in the absence of the public prosecutor. Pwede yun but you have to secure a certification. So the GENERAL RULE is CRIMINAL CAE IS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE PUBLIC PROSECUTOR.UNLESS, you are able to secure a certification from the chief of the prosecutor. Are we clear?! The THIRD DUTY IS INQUEST! The provision non inquest is found under RULE 112 §6. If your provision tells you it is §7 that is an old code. So kapag §7 pa yung inquest mo your holding an

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old code because today it is already §6. Please take note of this class! A few items on inquest only OFFENSES THAT WOULD HAVE GONE THROUGH PRELIMINARY INVESTIGATION WILL GO THROUGH INQUEST. Tandaan niyo yun look at the provision, only those offenses that would have gone through preliminary investigation wiil go to inquest. What are those? At least 4 years, 2 months and 1 day. Yun yun! Kapag mas mababa dun ang penalty, hindi ini-inquest yun. Kung may pulis dito, makikipagtalo sa akin mamaya. Sir ang tawag dun inquest! Yun ang tawag niyo. Hndi inquest yun! Ang gagawin mo kasunod kapag kulong piyansa. Ganun yun, do you follow. When you talk of offenses that requires preliminary investigation, that will have to go through inquest. What happens is you get arrested, you will be placed inside. Ganun muna and then after a few hours or kung madaling araw na in the morning, you will be placed on inquest. Ok! IS AN INQUEST PROCEEDING A PRELIMINARY INVESTIGATION? NO! It is not a prelimnary investigation. WHAT IS THE FUNCTION THEN OF AN INQUEST? An inquest is a determination of the prosecutor, whether there is sufficient evidence to hold you or to detain you upon a proper charge or to release you for further preliminary investigation. WHAT DO I MEAN BY FURTHER PRELIMINARY INVESTIGATION? Ang mangyayari dun, parang regular filing. Parang hindi ka naaresto na gumgawa ng krimen. Sin sir yung complainant? Eh di yung pulis! A competent person considering it is a public offense. Do follow?! Unless, it is a private offense. Kahit na nakulong ka nahuli ka. Na-inquest ka, sab ng piskal release to. Kapag sinabi ng oiskal naku malakas to sige kulong mo yan. Kulong mo yan at sampahan na natin. Magpprepare ng

information yun. Do you follow?! But he could still ask for what? Preliminary investigation but he has to waive ARTICLE 125 of the Revised Penal Code. But if in the same time if it is a bailable offense, he could ask for bail. So class please bear that in mind. If the prosecutor says release it does not mean dismissed. If the public officer says release, it means that the complaint made by the arresting officer will now be filed before the office of the prosecutor and will go thorugh regular preliminary investigation that is the process. We have discussed the three-fold duties of a public prosecutor ok. Now, let me touch on the civil aspect of a criminal case. Just a few items here class, the first that I would like you to touch on is, AN INDEPENDENT CIVIL ACTION NEED NOT BE RESERVED. IF THERE IS A QUALIFYING CIRCUMSTANCE, WHAT IS THE RULE? You have to allege it in the information. Otherwise it will not be considered by the court. HOW ABOUT A GENERIC AGGRAVATING CIRCUMSTANCE, SHOULD IT BE ALLEGE TO BE CONSIDERED BY THE COURT? YES, that is the present rule. That has been asked in the 2005 bar exams. Even a generic aggravating circumstance should be alleged in the information to be taken against the accused. So, DO YOU NEED TO RESERVE AN INDEPENDENT CIVIL ACTION? NO! No need to reserve, this is Article 31, 32, 33 and 2176 of the Civil Code. Class please bear in mind also PREJUDICIAL QUESTION. For the longest time there is no question on prejudicial question and what are the minimum requirements of a prejudicial question:

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1. the civil action which should have been instituted ahead of the criminal action; 2. the issue in the civil action is determinative of the guilt or innocence of the accused. Ok! WHAT IS THE EFFECT? WHAT IS SUSPENDED IS IT THE CIVIL OR THE CRIMINAL? The criminal case will be suspended not the civil. CAN YOU APPLY FOR SUSPENSION ON THE GROUND OF PREJUDICIAL QUESTION IN THE OFFICE OF THE PROSECUTOR? YES, you could file this. CAN YOU FILE FOR A SUSPENSION ON PROCEEDINGS ON A GROUND OF PREJUDICIAL QUESTION IN COURT? YES, you could file it also. So please take note, not only in the office of the prosecutor but also in court, you could a suspension of the proceedings on the ground of prejudicial question. Yesterday I discussed filing fees. So I will now touch on ARREST. For this I will touch on §5 RULE 113 People vs. Laguio. Class i-simplify niyo lang ha, kapag arrest. Kasi ang estudyante minsan pag arrest, ang isip lang nila lagi may warrant of arrest. ARREST COULD BE UPON A WARRANT OR WARRANTLESS. Ok! Or sometimes when they read RULE 113 ang natatandaanlang niya warrantless. Ok! Now, what is the difference? When you talk of WARRANTLESS ARREST, is there already a criminal case which is pending? When you talk of WARRANTLESS ARREST, is there already a pending criminal case, ha class? WALA! Warrantless nga eh. Nadampot ka in layman’s language, in police lingo. Ikaw ay nadampot na may ginagawa – WARRANTLESS. Di ba?! Ganun yun warrantless. That is §5 of RULE 113 and what does it say?

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1. You were caught while COMMITTING, ABOUT TO COMMIT OR HAS JUST COMMITTED, the magic phrase “IN HIS PRESENCE”. Do you follow? In his presence. Ibig sabihin within his view, of the arresting officer, in his presence. Ok! 2. the second subsection there in §5 says, what? THE CRIME HAS JUST BEEN COMMITTED, hindi kasama ang about to and committing, but just been committed but THERE IS PERSONA KNOWLEDGE BASED ON PROBABLE CAUSE, there was a personal assessment. He was not there, it was not in his presence but there is probable cause to believe that he was the one who committed it. It is no longer suspicion BUT THE PROBABILITY THAT THE PERSON TO BE ARRESTED BASED ON FACTS AND CIRCUMSTANCES IS THE ONE WHO COMMITTED THE OFFENSE. 3. He is DETAINED whether temporarily or permanently and HE ESCAPES. You will have to add to this...ah sir may addition pa ba yan? YES! 4. A person who is arrested without a warrant is RESCUED, there could be an arrest without a warrant - §13 of the same rule. 5. There could also be an arrest without a warrant if THE ACCUSED WHO IS OUT ON BAIL attempts to depart from the Philippines without approval from the court, there could be an arrest without a warrant.



Now, going to the case of People vs. Laguio this was the problem, ang nangyari dito, the facts and circumstances surrounding the case the question was, was there suspicion that he committed the offense, was there reason to believe that he commiited the offense. What happened? Respondent Wang was just on his way to his car coming from his apartment and was about to enter his car when the police operatives arrested him, searched his person and commanded him to open the compartment of the car which was later found to be onwed by his friend. Is there a reason to arrest him without a warrant? NO! was he committing? About to commit? Or has just committed? A will not apply. Will B apply? Has just committed and there is a reasonable ground to believe based on probable cause that he committed it? NO Is he an escapee? NO, RULE 113 §5 will not apply. When you talk class of a warrant of arrest THERE IS ALREADY A CRIMINAL CASE. Ok! Therefore, there is already a case, PEOPLE OF THE PHILIPPINES. Now, bearing this in mind, let us try to know when the court will issue a warrant of arrest. Ok! Alamin natin. KELAN BA MAG-IISSUE ANG HUSGADO NG WARRANT OF ARREST? Let us try to simplify this, what is the pertinent provision? The pertinent provision in RULE 112 §5. Ok! Liliwanagin ko to ha, RULE 112 §5. Ano requirement? Ito lang yun class ha, listen to this. I will classify it in this manner: IF AN INFORMATION IS FILED IN THE RTC, we presuppose that there was preliminary investigation, correct? because the penalty in the RTC exceeds 6 years, so nag-PI yun. 1. Once an information is filed in he RTC, what should the court do? The court upon finding of probable cause ISSUES A WARRANT OF

ARREST, it could issue a warrant of arrest. 2. the court can DISMISS THE CASE FOR ABSENCE OF PROBABLE CAUSE.Sir, bakit ganun? Eh nag-PI na bakit may determination of probable cause pa? that is what you call JUDICIAL DETERMINATION OF PROBABLE CAUSE. Can the court dismiss it? YES! 3. the court can REQUIRE FURTHER PRESENTATION OF EVIDENCE for him to personally determine whether or not there exists a probable cause. So class, kapag RTC ang kaso chances are issuance ng warrant yan and once the court issues a warrant of arrest, it means that THERE IS INITIAL DETERMINATION OF PROBABLE CAUSE. You can no longer file a motion for determination of probable cause because the court already issued a warrant of arrest. Ok! Dapat Pina-file yung motion na yun before a warrant is issued. Now, let us look at the next discussion point. How about the MTC. Once an information is filed in court, what should it do? You have to listen to this: if the penalty for the offense is AT LEAST 4-2-1 and therefore went through preliminary investigation, you follow exactly what I discussed. Ganun lang! do you follow? If it went thorugh preliminary investigation, information is filed, penalty at least 4-2-1, you follow what I discussed. The court could ISSUE A WARRANT OF ARREST, THE COURT COULD DISMISS FOR ABSENCE OF PROBABLE CAUSE AND THE COURT COULD REQUIRE FURTHER PRESENTATION OF EVIDENCE. Yun lang, are we clear?! WHAT IF THE PENALTY IS BELOW 4-2-1? Can you follow? Below 4-2-1, BUT NOT FALLING

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UNDER THE RULES ON SUMMARY PROCEDURE, the information is filed what can the court do? Listen to this because this is not usually the practice in court. This is exactly what the provision says, if it is asked in the bar exams this is the answer. 1. If it is below 4-2-1 and not falling under the rules on summary procedure the court MAY ISSUE A WARRANT if he finds based on his discretion that a warrant should be issued; or in lieu thereof the court will issue what? SUMMONS. This is the ONLY instance that in a criminal case, summons can be issued. Ok! 2. the court can also DISMISS for absence of probable cause; and 3. the court can conduct further hearing. Now, ok na yun! Punta tayo ngayon sa SUMMARY PROCEDURE. Those OFFENSES WHERE THE PENALTY IMPOSABLE DOES NOT EXCEED 6 MONTHS. Ok! Hindi lumalampas ng anim na buwan. Ito ang tanong class. Once the information is filed in court, take note – will it require preliminary incvestigation? NO! just like the other one below 4-2-1 not requiring PI. If the information is filed in court, CAN THE COURT ISSUE A WARRANT OF ARREST? The answer is NO! For those not requiring PI and falling under the rule on summary procedure, the court will NOT AUTOMATICALLY issue a warrant of arrest. A warrant of arrest will only be issued when? If DEPSITE REPEATED NOTICE for the accused to appear, he failed to appear only then it will issue a warrant of arrest. This is not covered by the rules on criminal procedure, it is covered by the rule on summary procedure. What time is it? Ah 4! Ok let us have a break. Class I will be back in less than 15 minutes. Ok! Baka naman pumunta pa kayo sa Mendiola para

kumain…hehe! O sa España… O see you in a while. This is our last set, last 2 hours. Hopefully we will cover as much. My last discussion point was a warrant of arrest, right?! I discussed warrantless arrest. Now let me touch on a SEARCH WITHOUT A WARRANT. Ang dami naman nito(referring to the submitted questions) para akong singer nito ah. Di ba ganun yung singer…buti walang dedication dito!(chuckles) mamaya mamaya bago tayo mag-uwian. Di ba ganun yun binibigyan ng napkin tapos babasahin mo yun. Now let us proceed, my next discussion point is SEARCH WITHOUT A WARRANTBUT ON THE SPOT TIP CALLS. What is the rule? For as long as a search warrant could be obtained you have to apply for a search warrant, that is the key under RULE 126. IF YOU COULD APPLY FOR A SEARCH WARRANT, YOU CANNOT DO A SEARCH WITHOUT A WARRANT. This is the case of People vs. Ayanggao. I will give you the facts then tell me if there should be application for search warrant. The informant arrives at the police station at 5AM on August 13, 1999 and informed the officers that the accused would be arriving at 6AM, an hour later. Ok! So the tip of the informant was given 5 in the morning and the informant said that the accused will be in the polace designated at 6AM, so a difference of an hour. The circumstances clearly calls for an immediate response, this is an example of an on the spot tip – do you need a search warrant? NO! To all other pertinent details wer known by the officers except the date, they coulf not have applied for a search warrant, besides according to the this case the search warrant has only have an effective life of 1o days. HOW ABOUT A WARRANT OF ARREST? HOW MANY DAYS? NO! until vacated or set aside, a warrant of arrest will be in effect. Ok!

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Let me now touch on the case of Ortega vs. People. In the determination of exemption of a child in conflict with the law under §64, RA9344. As you know below 15 years old, the offenders are exempt from criminal lliability. What happens? The case will be dismissed and the child shall be referred to the appropriate local social welfare and development officer, that is what will happen, right?! A child above 15 but below 18 who acted without discernment will likewise not be liable, right?! But if he acted with discernment that is a different story.

1. in all cases whether bail is a matter of right or discretion YOU HAVE TO NOTIFY THE PROSECUTOR of the hearing or REQUIRE HIM to submit a recommendation;

Now the question is how do you determine the age? Is it age at the time of commission or age at the time of promulgation of judgment? According to this case of Ortega, what is controlling with respect to exemtion from criminal liability of the child in conflict with the law is not the age at the time of promulgation of judgment BUT THE AGE AT THE TIME OF THE COMMISSION OF THE OFFENSE. Ok! Please take note of that.

3. DECIDE WHETHER THE GUILT OF THE ACCUSED IS STRONG based on the summary evidence of the prosecution;

The next item I would like to discuss with you is BAIL. Ok! Dalawa lang class ang didiscussin ko sainyo…no three items. The first one is this case of Mabutas vs. Perillo. Why am I discussing to you this case? This case discussed and outlined the need for a hearing on application for bail and according to this case, the hearing in an application for bail is MANDATORY. Ok! Let us look at this. WHAT WERE THE REQUIREMENTS LAID DOWN BY THIS CASE? It said: whether bail is a matter of right or a matter of discretion, THE PROSECUTOR SHOULD BE GIVEN REASONABLE NOTICE OF HEARING OR AT LEAST HIS RECOMMENDATION ON THE MATTER MUST BE SOUGHT.

2. where bail is a MATTER OF DISCRETION, CONDUCT A HEARING OF THE APPLICATION FOR BAIL, regardless whether or not the prosecution refuses to present evidence to show the guilt of the accused is strong;

4. IF THE GUILT IS NOT STRONG, DISCHARGE the accused upon approval of the bail bond. You know this but I need to discuss this outside of this case because for me it is not as accurate. Ok! It assumes that everything which is a matter of discretion falls under the determination of whether or not the evidence of guilt is strong. IT IS WRONG! Again, with all due respect it is wrong. Why? When is bail a matter of right? Tinanong na to sa bar exams when the examiner was Justice Pardo. Tinanong na to, WHAT IS THE DIFFERENCE OF BAIL AS A MATTER OF RIGHT AND A MATTER OF DISCRETION. Very simple, WHEN IS A BAIL A MATTER OF RIGHT?

The judge is required to observe the following duties:

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1. All cases falling within the jurisdiction of the MTC, BEFORE OR AFTER CONVICTION FOR AS LONG AS THE ACTION IS STILL PENDING. Ah…baka sabihin, kahit nap ala convicted sa MTC pwede magpiyansa?! HINDI! Kulong ka na nun di ba! In the MTC, whether before or after conviction you could



apply for bail, meaning baka i-apela mo pa eh. Do you follow?! Where else? 2. In the RTC before conviction, where the penalty is NOT death, life imprisonment or reclusion perpetua – that is a matter of right. I have always given this example to draw my point, to stress my point so that the students will not forget the point of bail as a matter of right in the RTC. Let me give you a classic example that has had he headlines in the longest time for the last 3 years or so, the story of Governor Leviste. You know this story. What happen there is he was alleged to have killed his aid. Do you follow? What did his lawyer do? He surrendered! Correct?! and he applied for bail. Why? Because he was charged originally of homicide. If you are charge with homicidethe penalty is life, death, reclusion perpetua therefore you are entitled to bail as a matter of right, maliwanag?! Bail as a matter of right! Ganun yun! Magaling yung pag-aaral nila dun. Now, WHEN IS BAIL A MATTER OF DISCRETION? After conviction in the RTC if the penalty is NOT death, life imprisonment or reclusion perpetua. Wala pa tayong pinag-uusapan ditong death, life, reclusion perpetua ha?! RTC mga…estafa! Ganyan! Ok! Where the penalty is not life, death or reclusion perpetua, after conviction. However class, the fact alone that you are convicted is not sufficient for the court to exercise discretion. The fact of its grant or denial of the bail will depend on other conditions provided for in §5, if you are a flight risk, if you are a recidivist, if you are a quasirecidivist, if you are a habitual delinquent. So hindi lang porket na-convict ka… ay! Apply ako ng bail. Do you follow? You will have to show that none of the conditions enumerated applies to you because if it does, the judge can opt not to give you bail. Maliwanag ba?! Yun yung classic class, a matter of right and a matter of discretion.

However class, yung sinasabi nila yung 6, 7 and 8 yan sinasabi nila, capital offense. Yun yun class! Yun yung kadalasang pinaghahalo kaya they assume when you talk of discretion it is always determination of the evidence of guilt is strong. You only make a determination that the evidence of guilt is strong if the penalty is a capital offense. When at the time of commission of the offense and application for bail, the penalty is what? Death, that includes aside from death, life and reclusion perpetua. Do you follow?! Sa mga ganung sitwasyon class, what do you do? Most of the time where the penalty is death, life or reclusion perpetua, ano yun? These are NON-BAILABLE. Ok! Murder, rape, what else? Large-scale estafa, pluder yan mga non-bailable. Yung katulad nung kay GMA kapag na-file yun, non-bailable yun. Ibig sabihin class yun, once an information is filed in court you are not as a rule entitled to bail. Sasabihin niyo…sir, that is a constitutional right! YES! You can apply but for the time being you are not entitled to bail! Can you follow? That is why you have to establish that the evidence of guilt is NOT STRONG against you. The burden of the prosecution is established when you file an application that evidence of guilt is strong. Ok! So there will be a summary hearing. The prosecutor will be given notice so that he could give his recommendations and to appear. If the court grants bail without giving the prosecutor the chance to recommend or to appear, the judge could be administratively held liable. Do you follow?! That is the concept. So you have 3 sets:

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1. bail as a MATTER OF RIGHT; 2. bail as a MATTER OF DISCRETION; and 3. NON-BAILABLE OFFENSES



Yun yung ina-apply mo ng PETITION FOR BAIL. Is ARRAIGNMENT PRE-REQUISITE TO FILING A PETITION FOR BAIL? NO! Serapio vs. Sandiganbayan. That has already been answered in the case of Erap. YOU DO NOT NEED TO BE ARRAIGNED TO APPLY FOR BAIL. The very moment there is deprivation of liberty, you could already apply for bail. The next point that I would like to discuss is WHERE TO APPLY? I think this is §17 if not 16 of RULE 114. Where to apply? IF IT IS A MATTER OR DISCRETION – you could only apply for it IN THE COURT WHERE THE ACTION IS PENDING. IF THERE IS YET NO CHARGE AND YOU ARE ALREADY HELD IN CUSTODY – meaning you may have been caught in flagrante delicto – in the PROVINCE, CITY OR MUNICIPALITY WHERE YOU ARE HELD. Do you follow?! WHAT IF CLASS, THERE IS ALREADY A PENDING CASE? For example here in Manila and you were arrested in Manila. Ok! Do you follow? Ang kaso mo nasa RTC ng Manila, nahuli ka sa Manila, where will you apply for bail? Your application for bail will be, THE COURT WHERE THE ACTION IS PENDING. Kasi sa Manila ka nahuli dun rin yung kaso mo. Do you follow? IN THE COURT WHERE THE ACTION IS PENDING OR IN HIS ABSENCE OR UNAVAILABILITY, BEFORE ANY RTC OR MTC OF MANILA. Do you follow? What else? What if you have a case pending in Manila and you were arrested in Antipolo, where will you apply for bail? Yes, you could apply for bail in the court where the action is pending but you can also apply for bail, before any RTC of Antipolo. Do you follow? Or in their absence or unavailability before any MTC of Antipolo. Are we clear? Yan class abangan niyo, it could be a source of questions.

Let me proceed with the next item, the DETERMINATION OF PROBABLE CAUSE BY THE JUDGE. Ocave vs. Guttierez. If the judge is able to determine existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there will no longer be need to order the elevation of the rest of the records of the case. What are they trying to tell us? The judge should have what? A personal, independent determination of probable cause and in his duty to conduct probable cause – what should he do? He should look at the records of the case to the extent of requiring the prosecutor to elevate the records, the case os Adaza vs. Abalos. Let us look at ARRAIGNMENT. What about arraignment? Arraignment is waiver to right to preliminary investigation and the right to question the irregularity. The very moment a person is arraigned and enters a plea, HE WAIVES ANY QUESTION ON IRREGULARITY OF PI OR EVEN THE VALIDITY OF THE ARREST. The waiver is tantamount to finding of probable cause, for this reason there is no need for the court to determine the existence or nonexistence of probabale cause. My next question is WHAT IS YOUR REMEDY FOR AN ACQUITTAL? Kita niyo nagulat kayo…Sir, may remedy pa pala yun? Is there a remedy for an acquittal? People vs. Hernandez. This is rather an exception more than the rule. In order that the judgment of acquittal may be successfully challenged, in a petition for certiorari. The petitioner must prove that the trial court in acquitting the accused not only committed errors of judgment but grave abuse of discretion, take note of that. Take note of that! THE REMEDY FOR AN ACQUITTAL IS A PETITION FOR CERTIORARI, ASSUMING THERE WAS GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.

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Now, let us look at the word EXCLUSIONS. You remember this? Exclusions! Saan niyo narinig yan, yang exclusions na yan? That is found in §3 of RULE 119. Oh nakita niyo na? ang haba ano? What is the use of that provision? Mental examination of the accused, pedency of other extraordinary remedies, failure to acquire jurisdiction of some of the accused, there are pending other criminal cases, unavailability or absence of witnesses – WHAT IS THE NATURE OF EXCLUSIONS? Exclusions will protect who? THE PROSECUTION from claims for violation of speedy trial. For example, in one case decided by the Supreme Court the pre-trial took place after 8 years, why did it happened considering the right ot speedy trial? Because the petition for review was pending for almost 8 years. Should it be dismissed? NO! do you follow? These are what you call exclusions – THIS IS NOT INCLUDED IN THE COUNTING OF THE PERIODS IN SPEEDY TRIAL. Now, I would like to call your attention to SPEEDY TRIAL and when you hear speedy trial remember the letters V-C-O. oh kita niyo!? May naisip na naman kayo! Ayan, diyan kayo magaling ano?! V-C-O is VEXATIOUS, CAPRICIOUS AND OPPRESSIVE DELAYS. Class,but if I were you considering that you have a multiple choice examination kakabisaduhin ko na rin yung days required, kakabisaduhin ko na rin yun. Iilan lang naman yun. Kakabisaduhin ko na yun! Bakit? Eh baka mamaya magtanong sila dun eh. Kasi hindi na kayo mahihirapan eh. They will give the answer it is a matter of choosing. Let us do some exercises. WHEN SHOULD ARRAIGMENT TAKE PLACE? Within 30 days from the time the court acquires jurisdiction over the person of the accused. WHEN SHOULD PRE-TRIAL TAKE PLACE? Pretrial should take place within 30 days from the time the court acquires jurisdiction over the

person of the accused but after arraignment. Ok! RULE 118. Please take note of that. And ARRAIGMENT TO TRIAL SHOULD BE WITHIN THE PERIOD OF? O ganyan! Codal yan. Tingnan niyo sa §6 of RULE 119. Arraignment to trial should be within the period of…may magbibigay sa akin ng 180 dyan, may magbibigay sa akin ng 120. Ano? How many? 80 na lang ngayon! Because it had lapsed for a number of years and at this time it is already 80. Do you follow? So these days are important otherwise if the bar examination was still in the nature of essay what I would like you to remember would simply be vexatious, capricious and oppressive delays. In one case decided by the court People vs. The, the case was postponed for 20 times, the criminal case for 20 times. What did the court say? When the accused moved for dismissal on the ground of speedy trial, what did the court said: sabi ng court hindi! Bakit? Because they said, the prosecution made efforts to make sure that the witnesses were there, they even applied for a warrant of arrest, sabi ng court. So you cannot blame the prosecution for inaction, therefore the rgith to speedy trial was not violated. Do you follow? So you have to take note of exclusions and pleas take note of the days. The next, let us compare and contrast a MOTION TO QUASH and a PROVISIONAL DISMISSAL. What is the difference? Let us look at this, class mahaba-haba to. This is the case of Los Baños vs. Pedro a 2009 case. Both are found in RULE 117, however they made a comparison. They said, a first notable feature of §8 RULE 117 that is Provisional Dismissal is that it does not exactly state what a provisional dismissal is, it does not say. There are no grounds, correct?! it does not say what provisional dismissal is. The modifier PROVISIONAL directly suggest that the dismissal ESSENTIALLY REFERS TO THOSE THAT ARE TEMPORARY IN CHARACTER, so yun ang

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sinasabi. That are temporary in character and not dismissals that are permament. Based on the law and jurisprudence, PERMANENT DISMISSALS ARE THOSE THAT ARE BARRED BY DOUBLE JEOPARDY, by the previous extinction of criminal liability and speedy trial. But class, kindly take note this pronouncement of the court when they say it is temporary or provisional, they did not say that it will attain permanency. Do you follow?! Our discussion, it will become permanent and for that reason cannot be refilled, all they said thus the modifier was provisional, therefore it is temporary. To that extent I agree, ok! It is provisional. The second feature is that §8 does not state the grounds to lead to a provisional dismissal, this is in contrast with the motion to quash, where grounds are specified under §3. Ok! PROVISIONAL – there are no grounds, MOTION TO QUASH – there are grounds. Third, MOTION TO QUASH – focuses on the consequences of a meritorious motion to quash, this feature also answers the question of WHETHER QUASHAL OF INFORMATION CAN BE TREATED AS PROVISIONAL DISMISSAL. I think more importantly now is the five points presented by the court, there are five points or differences presented by the court: MOTION TO QUASH Is filed by the accused to question the efficacy of the complaint or information. The form is provided for in §2, these requirements of form are not required in provisional dismissal. Asaails validity of the complaint or

PROVISIONAL DISMISSAL At the instance of either the prosecution or the accused.

Can be made orally in open court.

May be grounded on reasons other than

information for defects and defenses apparent in the information or complaint.

Before arraignment.

Stays quashed until revived. A motion to quash if granted, stays quashed until revived unless it is prescription, unless it is double jeopardy.

defects of information. So a case could be dismissed provisionally even if the information is not defective. May be for absence of witnesses, lack of interest, but that is not a ground for motion to quash. Even when the trial is already on-going. There could be a provisional dismissal even after arraignment and when trial is on-going. Is by its own terms impermanent until the TIME-BAR RULE applies. Ayun! Sinabi na nila, it is provisional until the time-bar applies, at which time it becomes permanent.

IS A DENIAL OF A MOTION TO QUASH REVIEWABLE BY CERTIORARI? As a GENERAL RULE it is NOT REVIEWABLE by certiorari. The case wil have to be completed before questions on the motion to quash can be raised. Now, CONDITIONAL EXAMINATION OF WITNESSES. Ok! Manguera vs. Risos, this is important because the Supreme Court made a very clear pronouncement on how you will treat this conditional examination of witnesses. It is true according to the Supreme Court that §1 RULE 3 of the RULES OF COURT provides that the rules of civil procedure applies to all actions, civil or criminal and special proceedings. In effect it says, that the rules of civil procedure haqve suppletory application to criminal cases. This is important, the next point however it is

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likewise true that the criminal proceedings are primarily governed by the rules on criminal procedure considering RULE 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply RULE 23 suppletorily or otherwise. We have answered the question that I have raised a while ago. You do not need to apply RULE 23 on DEPOSITION because there is RULE 119 on conditional examination of witnesses. To reiterate as a final point, the conditional examination of a prosecution witness for the purpose of taking his deposition should be made before the court or at least before the judge where the action is pending. In this particular case, the court treated conditional examination as in the nature of deposition in criminal cases. To procedd we further, we still have enough time. Let us look at class the SWEETHEART THEORY. You know this right?! The sweetheart theory, People vs. Guillermo. It is AN ADMISSION OF CARNAL KNOWLEDGE OF THE VICTIM AND CONSEQUENTLY PLACES THE ACCUSED THE BURDEN OF PROVING THE SUPPOSED RELATIONSHIP BY SUBSTANTIAL EVIDENCE. So a sweetheart theory is an admission of carnal knowledge but you will have to establish existence of relationship. HOW DOES THE LAW TREAT AN AFFIDAVIT OF RETRACTION? According to this case recanted testimony is highly questionable because it could be secured through monetary considerations. Ok! So the court frowns upon a recanted affidavit because to them it is usually by reason of monetary consideration. In certain cases the Supreme Court had said that IT TAKES JUDICIAL NOTICE THAT RECANTATIONS OR RETRACTIONS ARE USUALLY UPON MONETARY CONSIDERATION. It is dangerous for the court to reject testimony solemnly given before the court simply because witnesses changed their mind.

The next item that I would like to discuss is People vs. De Leon. I would like to discuss ILLEGAL SALE OF PROHIBITED DRUGS in relation to CHAIN OF CUSTODY. Remember class that in the conduct of an arrest, there is an incidental search. Do you follow?! A search as an incident of a valid arrest. I will discuss this in the case of People vs. De Leon. Ok! WHAT ARE THE ESSENTIAL ELEMENTS OF ILLEGAL SALE OF PROHIBITED DRUG: 1. the accused sold and delivered a prohibited drug to another; and 2. he KNEW that what he sold and delivered was a prohibited drug. WHAT IS THE CORPUS DELICTI IN A DRUG CASE? It is the POSSESSION or the ILLEGAL DRUG. In a murder case or a homicide case, what is the corpus delicti? It is the body of the victim. Do you follow? Now, let us look at the CHAIN OF CUSTODY RULE. Ok! This has always been a source of conflict between judges and the police enforcers. Ok! Why? Because they have a very strict rule in §21 of RA 9165 – DANGEROUS DRUGS LAW. The chain of custody requires that the substance bought during the buy-bust operation is the same substance offered in court. Do you follow? THAT WHICH WAS TAKEN AT THE SCENE, IS THE SAME SUBSTANCE PRESENTED IN COURT. Now, there is a duty here in §21 – WHAT IS THE DUTY OF THE ENFORCEMENT OFFICERS OR THE POLICE OFFICERS? This is very hard, for those of you in the police force you know how hard it is, THERE SHOULD BE A PHYSICAL INVENTORY. Where? AT THE SCENE WHERE THE SEARCH AND ARREST WAS EFFECTED, IN THE PRESENCE OF THE ACCUSED, IN THE PRESENCE OF THE MEDIA IF POSSIBLE, IN THE PRESENT OF THE REPRESENTATIVE OF THE DOJ. Yan yun rule! Class ha! Baka itanong yan sainyo, ok?! Pero class this is usually rejected by police enforcers, bakit? Bakit ka naman gagawa ng inventory

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kung saan mo sila nahuli, kadalasan doon sila napapatay, di totoo yun! Dun sila napapatay, yan ang reklamo nila because I lectured before the PDEA and the Judges on this, anong nangyari? Sir, doon kami napapatay, doon yung mga kasama naming napapatay. Bakit? Di babalikan nung nahuli. Ok so this is the cource of problem because some police officers instead of doing an inventory at the scene of the crime or where the buy-bust operation was conducted in the presence of media or DOJ, they bring it somewhere else, they bring it to the plaza or sometimes they bring it to the police station because the requirement is, it will be photographed and it will be signed. Kung sachet siya kailangan pirmado din yun para alam na that is the same substance taken at the scene of the buy-bust operation. But IS THAT AN IRON-CLAD RULE? Are there exceptions? This is what the provision says, the non-compliance with this requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved. If you are to remember something this is what you have to remember as exception. The exception to that rule on noncompliance in the inventory at the scene of the buy-bust operation is this, you will have to establish the integrity and the evidentiary value of the seized items as properly preserved by the apprehending officer, that was the declaration of the court. A close examination of the law reveals that it admits an exception and the court said that, that is the exception the preservation of the integrity and evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused . Let us look at ANIMUS POSSIDENDI. What is animus possidendi here in this case? The finding of dangerous drug in the house or within the premises of the house of the accused is prima facie evidence or knowledge of animus possidendi and is enough to convict in the

absence of satisfactory explanation. So that is animus possidendi, not necessarily in your possession or physical possession but may be where? Within the premises of the house of the accused or in his house. Ok! Next let us look at POSITIVE IDENTIFICATION. Peple vs. Abella. CAN POSITIVE IDENTIFICATION BE OVERCOME BY BARE DENIAL? NO! Bare denials and uncorroborated alibis cannot overcome positive identification. Alibi is unacceptable when there is positive identification of the accused by a credible witness. Ok! In order for alibi to stand, ito ang sabi ng court, sabi ng court para magamit mo yung alibi you have to comply with this standard, IT IS NOT ENOUG TO PROVE THAT THE ACCUSED IS SOMEWHERE ELSE, na nasa ibang lugar siya during the commission of the crime, IT MUST ALSO BE SHOWN THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR HIM TO BE ANYWHERE WITHIN THE VICINITY OF THE CRIME. Again, it is not enough for the accused to shaow that he is somewhere, kadalasan ganun ang alibi…hindi nandun ako. Do you follow? But he has likewise to show that it would be impossible for him to be there, within the vicinity of the crime. Let us now proceed on the case of Samuel Lee vs. KBC Bank a 2010 case. Class this is important because of discussion on INDEPENDENT PERSONAL ASSESSMENT OF THE JUDGE. Kapag ang eksaminer niyo medyo praktisado baka mga ganitong tanong ang matanggap niyo. Ano yun?! Sir, there is a motion to withdraw information in court. Do you follow? So bakit pina-withdraw? Eh kasi ang recommendation ng office of the prosecutor o ng DOJ dismissed. So ang gagawin ng public prosecutor, a motion to withdraw information. Do you follow?! Yun ang pinagtatalunan dito. What is in dispute id the order issued by a judge, he issued an order granting the motion to withdraw ito lang sinabi niya class, pakinggan niyo to ha! The motion to withdraw information filed by the prosecution

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is hereby granted. Ayan! And the two informations for the crime of estafe are hereby withdrawn from the dockets of this court. Ganun lang! That is one paragraph, the other paragraph reads: after an in depth scrutiny of the arguments raised by the prosecution and private complainant, the court finds the contention of the prosecution to be sufficient and meritorious, yun lang! Is that sufficient? Ol! So that order was questioned, sabi bakit mo grant yan? What is the duty of the judge? THE JUDGE SHOULD CONDUCT AN INDEPENDENT ASSESSMENT OF THE MERITS OF THE CASE BASED ON THE AFFIDAVITS AND COUNTERAFFIDAVITS AND DOCUMENTS APPENDED TO THE INFORMATION. Do you follow? If it is not possible, he could ask for copies from the office of the public prosecutor. So here, the court noted kulang. It is not enough class to say that yes it is granted it is sufficient, the judge should have what? An independent personal assessment and he should have a discussion on why he feels the case should have been withdrawn, this is the standard in withdrawal of cases. I have seen judges simply do a one-liner on approving a motion to withdraw, this is the standard, the judge should make an idependent personal assessment. Now, in fact they said they should embody the assessment in the written order disposing the motion, not only saying that we have consider the arguments and we have seen the arguments to be sufficient because the concept here is, once the case is already in the court who is in control of the case? The judge, it is for him to dismiss or not the case, that is why the prosecutors only fle a motion to withdraw. Remember that, there should ne an independent personal assessment of the judge in cases of a motion to withdraw filed befor him. Ok! Now, let us look at another case Hilario Soriano vs. People, this is in connection with the Rural Bank of San Miguel. Ok! The question here class

is fairly simple. I will simplify it for you, the BSP transmitted affidavits of its investigating officers to whom? To the office of the prosecutor, transmit nila. So kinontest yun, sabi nila letter-transmittal lang yan eh, that cannot be a basis of a complaint. Yes there is lettertransmittal but there are affidavits appended thereto, what did the court say? The letters merely transmitted for preliminary investigation the affidavits of people who have personal knowledge, we rule that these affidavits not the letter transmitting initiated the preliminary investigation, these are merely transmittals but what is important is the affidavits and considering the affidavits where duly subscribed before a notary public, these are valid affidavitcomplaints that will commence the action. Yun ang sabi ng court. Ok! In a similar vain, the NBI had a similar case whereinthey only forwarded a transmittal together with the affidavits of those who have personal knowledge, is that a proper affidavit for commencement of the action? YES! In this particular case, another point which is subject of controversy is the information. Sabi niya insufficient ang information. Why? He moved to quash the information because according to him, yes there was violation of the DOSRI rule, alam niyo ba yung dosri? Sa mga bank hindi pwedeng mangutang ang director, officer…hindi dapat sila nangungutang pero nangungutang pa rin sila. Sabi nial, yes violation yan ng dosri but there is no estafa through falsification of commercial documents because he said according to the information, it is not I who borrowed the money. So what is in dispute here is the information. Was there a valid information? That is why there was a motion to quash. Anong sinabi ng court dito, sandali! Doon sa §83 ng Banking Law, sinabi doon a loan could either be direct, indirect for himself or as representative and looking at the information it says, that the loan was obtained indirectly by the accused and the funds were received by

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him. The court said, the information was proper and not defective. Let us look at now an OUT OF COURT IDENTIFICATION. Ano ba sir yung out of court? Yung mga police line-up type. The case of Vidar vs. People. The question is WHETHER AN OUT OF COURT IDENTIFICATION IS POSITIVE OR DERIVATIVE. What are the rules that you have to consider? You have to consider the TOTALITY OF CIRCUMSTANCES and the court has enumerated four: 1. witness’ opportunity to view the criminal at the time of the crime; 2. the witness’ degree of attention at the time; 3. accuracy of any prior description given by the witness; 4. level of certainty identification;

of

the

5. length of time between the crime and identification; 6. the suggestiveness identification.

of

the

Class, what the court said here is IF YOU COMPLY WITH THE PARAMETERS, THE OUT OF COURT IDENTIFICATION IS PROPER. But even if the out of court identification is irregular, meaning it suggested who the accused is or who the suspect is, for as long as there is positive identification in court it validates the out of court identification. Do you follow? For as long as there is proper court identification in the course of the proceedings in court then it validates the otherwise defective identification. Now, I will touch on a few items on evidence. Let us touch on JUDICIAL NOTICE. Ano na bang oras? Oh 5 kita niyo mas isang oras ka pa.

Anong oras tayo uuwi? 6 o’clock. Corinthian Garden case. What is the rule when you talk of judicial notice? The provision on judicial notice is where? RULE 129. Ok tandaan niyo yan ha! RULE 129. Class ang evidence konti lang yan eh 128-133. Ah sir, 134? Wala na yan! That has been superseded by RULE 24. Ah sir ganun ba?! OO!(chuckles) wala na yan! Yang 134 na yan ay wala na, pinalitan na yan nung 24 na diniscuss ko kanina. Judicial notice is found in RULE 129, what do I want you to bear in mind when you talk of judicial notice? THERE IS NO NEED OF INTRODUCTION OF EVIDENCE. Yun yun! WHOSE NOTICE IS THAT? That is the notice of the judge! That is not your problem as a partylitigant, that is for the judge to take notice of. Ok! Without introduction of evidence. Look at that §1 ok! And class I will not go through the process of enumerating what is mandatory. But let me give you the case of Corinthian Gardens, what does it say? A COURT CANNOT TAKE JUDICIAL NOTICE OF FACTUAL MATERS. Factual matters because, these are not settled or studied, in fact these are disputed matters. CAN THE COURT TAKE JUDICIAL NOTICE OF AN ORDINANCE? The case of Social Justice Society vs. Atienza. The ordinance subject of dispute is an ordinance adopting the Manila Comprehensive Land Use and Zoning Regulation of 2006. Is the court required to take judicial notice? This is what the court said: while the court’s are requied to take judicial notice of law enacted by Congress, the RULE WITH RESPECT TO LOCAL ORDINANCES IS DIFFERENT. Even when there is a statute that requires the court to take judicial notice of municipal ordinances, a court is not required to take judicial noyices of ordinances that are not before it and to which it does not have access. Laws enacted by Congress, YES! But ordinances, if it is not within their access it is not bound ta take judicial notice. In this case they even cited RA409 §50, allowing the courts to take judicial notice of

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ordinances passed by the City of Manila. Take note, dinisregard ng husgado yun. Sabin g husgado, pwede ordinances if it is within the access of the judges but if not they cannot take judicial notice.

agencies of the government, the lesser that it becomes a matter of judicial notice. In the same manner as roads, important rivers, the lesser importance of that road, the lesser it becomes of judicial notice.

HOW ABOUT JUDICIAL ADMISSIONS? Do you need to introduce evidence when you talk of judicial admissions? NO! that is why class if you wpould note, judicial notice and judicial admissions are under the same rule. They are under the same rule because there is no need of introduction of evidence.

3. any matter could be subject of judicial notice – when hearing necessary. ok! The hearing there is for what purpose? Not presentation of evidence but to call the attention of the court.

Now, let us look ta the KINDS OF JUDICIAL NOTICE:

-

BEFORE JUDGMENT is rendered, any matter could be subject of judicial notice meaning full moon ba sa araw na ganito? umuulan bas a araw na ganito? Do you follow? The court could take judicial notice of that, you could call the attention of the court.

-

However, ONCE THERE IS A JUDGMENT you cannot just ask the court to take judicial notice. The court will only take judicial notice if it will change the outcome of the case.

1. mandatory; 2. discretionary, discretionary?

what

are

-

of public knowledge ;

-

of unquestionable demonstartion;

-

that which the judge ought to know by reason of his judicial function.Sir, DO YOU NEED TO INTRODUCE EVIDENCE?NO! discretionary, meaning the court can decide whether to take judicial notice if it is of public knowledge, right?! Or if the judge ought to know by reason of his judicial function. Here there is some sort of overlapping when it comes to what the judge ought to know by reason of his judicial function. But pleas bear in mind, the lesser important a circular becomes or administrative circulars in departments or administrative

Now, let us look at the BEST EVIDENCE RULE. This is the case of Edsa Shangrila resort. Class this case merely presented best evidence and likewise secondary evidence. WHAT IS THE BEST EVIDENCE RULE? Where the CONTENTS OF THE DOCUMENT IS THE SUBKJECT OF THE INQUIRY you will have to present the original, yun yun! That is the best evidence rule. When the contents thereof is the subject of the inquiry, you will have to present the original. Stated otherwise, when the contents of he document is not the subject of

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the inquiry, you could simply present a copy in court because the contents are not the subject of the inquiry. Now, if we say that there are instances where the originals are not available. You know that right?! I will not give you the exceptions, it will eat much of our time but I will touch on the secondary ok! WHAT IS SECONDARY EVIDENCE? if the original: 1. has been lost or destroyed; 2. if it is in the custody of the adverse party.

3. that due diligence was effected to procure it. Let us look at the case of Garcillano vs. House of Representatives. This is in connection with ANTI-WIRE TAPPING RA4200. WHAT IS THE GENERAL RULE WHEN IT COMES TO RA 4200? I think you were aware of this, the Garci tapes, right?! Illegally wire tapped material is inadmissible, unless of course you have a court order for its presentation. However, in this particular case the Supreme Court made a very narraow exception in addition to what is provided for under RA 4200. What does it say? As a very narrow exception:

In that case class you could present a

1. THE WIRE TAPPED MATERIAL MAY BE USED AND IS ADMITTED IN A JUDICIAL PROCEEDING FOR PROSECUTION OF VIOLATION OF RA4200. Do you follow? The wire tapped llegally obtained information can be presented in a judicial proceeding, where a person is prosecuted for violation of RA4200;

1. copy; 2. recital in some documents; or

authentic

3. testimony of witnesses WHAT IF THE ORIGINAL IS RECORDED IN A PUBLIC OFFICE OR IN THE CUSTODY OF A PUBLIC OFFICER? Do you need to present the original in court? NO! it is sufficient to present simply a certified true copy or a certification.

2. in a legislative investigation in aid of legislation whose purpose is precisely TO ADDRESS ILLEGAL WIRE TAPPING. Although class in this case, it could be used to aid Congress in its legislative investigation. It cannot be used in the prosecution of electoral fraud. Do you follow? Yes, you can use it in aid of legislation. Alam na alam mo narinig ng bayan yan na talagang may kalokohan but it is inadmissible for purposes of prosecution in connection with electoral fraud.

A while ago this morning I gave the requisites of secondary evidence when the original is in the custody of the adverse party. HOW ABOUT SECONDARY EVIDENCE WHERE THE ORIGINAL HAS BEEN LOST OR DESTROYED? You will have to ESTABLISH: 1. the existence; 2. the fact that it has been lost or destroyed; and

Let us proceed to another item. What is that another item? PAROL EVIDENCE RULE. What

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about the parol evidence rule? The basic rule is, THE DOCUMENT IS THE MONUMENT OF WHAT THE PARTIES HAVE AGREED UPON. Everything that you have agreed upon is in the document that you have executed, you cannot go outside of it. If you go outside of what is in the document you will be in violation of the parol evidence rule. HOW CAN YOU PRESENT EVIDENCE OUTSIDE OF WHAT IS IN THE DOCUMENT? That is the question answered in the case of ACI vs. Coquia yun ang tanong. Papaano? And this is very important class it is in the code but it is cited in the case. YOU HAVE TO PUT IT IN ISSUE IN THE PLEADINGS – you could modify, explain or add for as long as you put it in issue in the pleadings. If you did not put it in issue in the pleadings, you cannot present the exceptions to the parol evidence rule. Ok! And class if I can give you a few of the exceptions, you have: 1. when the document is not reflective of the true agreement of the parties; 2. as to matters of validity; 3. mistake of fact;

not need to present the original. In fact the court said here that, the presentation of copies of the transfer certificate of title and the deeds are enough, you do not need to present the original. The next question that I would like to touch on would be in the case of Sansan vs. NLRC. I think the pertinent provision here is RULE 128 §2, what is that? The RULES ON EVIDENCE APPLIES IN ALL COURTS IN THE PHILIPPINES EXCEPT AS OTHERWISE PROVIDED FOR BY LAW. Do you follow? NLRC is not a court, it is a quasi-judicial agency. The question presented before the Supreme Court was CAN THERE BE PRESENTATION OF NEW EVIDENCE ON APPEAL IN THE NLRC AND NOT WITH THE LABOR ARBITER. So the documents were not presented at at the labor arbiter but at the NLRC on appeal. What did the Supreme Court say? The submission of additional evidence before the NLRC is not prohibited by its new rules of procedure, after all rules of evidence prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and reasonable means to ascertain the facts, the submission of additional evidenc on appeal does not prejudice the other party for the latter could submit counterevidence.

4. intrinsic ambiguity; 5. imperfection. Now,let us look at this case of Chua-Gao vs. Chua a 2008 case that explains to us whether or not you need to present an original, in a case. WHERE THE ISSUE IS ONLY AS TO WHETHER THE DOCUMENT WAS ACTUALLY EXECUTED OR EXIST OR THE CIRCUMSTANCES RELEVANT TO OR SORROUNDING ITS EXECUTION, the best evidence rule DOES NOT APPLY. Are we clear? The best evidence rule will not apply when it is a question of execution, its existence or the circumstances surrounding its existence, you do

You know class that is the difficulty later on, if you will note in the NLRC. You could present just anything. You photocopy, you fold it your pocket, then you attach it to the pleading it is ok because technical rules of evidence do not apply. As they say, even if you present it there, there is an opportunity to present counterevidence. The next question presented in that case is this PRESENTATION OF PHOTOCOPIES. Sabi niya bakit naman photocopy lang presenta mo, hindi naman original, considering the best evidence rule, correct?! the court said, even assuming that petitioners were given mere photocopies

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again we stress that proceedings before the NLRC are not vovered with technical rules of procedure, as observed by regular courts. Do you follow? That is why if you recall your administrative law. What does the Supreme Court usually do in adapting decisions of quasijudicial agencies, they have special skills, knowledge and expertise therefore the Supreme Court sees no reason to disturb the findings of facts by quasi-judicial agency. Now, let us try to answer this question – CAN AN EVIDENCE BE CONSIDERED AFTER THE DECISION AND NOT FORMALLY OFFERED? Ok! Basic rule this has been asked repeatedly in bar exams, no formal offer. The answer is NO and that is the GENERAL RULE. However class, let me call your attention to another case involving the same matter. The case of Rafael Dizon vs. Court of Appeals citing the long standing rule of Vda. De Oñate. What is this case of Vda. De Oñate? This particular case only declare together with some other cases, that EVEN IF IT IS NOT FORMALLY OFFERED BUT IT IS MADE PART OF THE RECORD, THE COURT CAN CONSIDER THE SAME. However class these are what? According to the case of Rafael Dizon MERELY EXCEPTIONS TO THE GENERAL RULE. WHAT IS THE GENERAL RULE? No evidence will be considered by the court UNLESS FORMALLY OFFERED the Vda. De Oñate case is just an exception. Now, let us look at POSITIVE IDENTIFICATION vis-à-vis ALIBI, People vs. Bayot. Settled jurisprudence is that, CATEGORICAL AND CONSISTENT POSITIVE IDENTIFICATION ABSENT ANY SHOWING OF ILL-MOTIVE ON THE PART OF THE EYE WITNESS PREVAILS OVER DEFENSES OF DENIAL AND ALIBI. Let us look at ADVERSE PARTY WITNESS. Ok! I have mentioned that a while ago. Adverse party witness that is found in RULE 132 §13. It is in

the same paragraph as a hostile witness. Tingnan natin to class. What does it say? WHO IS AN ADVERSE PARTY WITNESS? The adverse party witness is the other party who you want to call on the witness stand, that is an adverse party witness. When you say ADVERSE PARTY’S WITNESSES those are the witnesses of the other party but when you say ADVERSE PARTY WITNESS I am the plaintiff he is the defendant, he is the adverse party witness. CAN I CALL THE OTHER PARTY ON THE STAND? Yes! But I should have served written interrogatories consistent with RULE 25. WHO IS A HOSTILE WITNESS? May nagkonsulta sa akin hirap na hirap akong magdiscuss, kasi sabi niya o…sabi niya sa akin eh papaano yang hostile na yan eh gusto niya ganito raw yung ano ginawa ng kalaban niya, his opponent even before presenting his witness said, your honor I will be presenting a hostile witness…(the class chuckles) Oh! Marunong kayo, marunong kayo! Tama yun! A HOSTILE WITNESS ONLY BECOMES ONE ONLY AFTER THE COURT DECLARES HIM TO BE A HOSTILE WITNESS because he has misled you, his position is adverse. Do you follow?! All of these things makes him a hostile witness but the mere fact that you feel that he may be hostile will not make him as a hostile witness. What did the court say on Chua-Gao vs. Chua? Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Are we clear?! So if I call on an adverse party witness, meaning my opponent I could impeach him, I could destroy his testimony but I cannot present his bad character. Are we clear?! He is as if on cross-examination because obviously his interest is adverse to my interest. So again, unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character.

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Ok! Now, let us look at the case involving GOVERNMENT PRIVILEGE, Neri vs. Senate Committee on Accountability. WHAT IS A GOVERNMENT PRIVILEGE? A government privilege is invoked against public disclosure of state secrets covering military, diplomatic and other national security matters. In the Reynolds case it was held that there must be a formal claim, THERE SHOULD BE A FORMAL CLAIM FOR A GOVERNMENT PRIVILEGE of privilege lodge by the head of the department. WHO SHOULD LODGE THE CLAIM? The head of the department. Ok! For the government privilege and has control over the matter after actual consideration by that officer, the court must thereafter determine whether the circumstances are appropriate for the claim of the privilege.

need to perform the functions under the constitution. Let us look at class the 2 TYPES OF POSITIVE IDENTIFICATION. What are the 2 types of positive idenfication? 1. as DIRECT EVIDENCE, meaning you were there and you were able to see how it was committed; 2. as CIRCUMSTANTIAL EVIDENCE. Let us look at EXTRA-JUDICIAL CONFESSION. As a rule extra-judicial confession can only be used against the person making it, that is the rule. WHAT ARE THE EXCEPTIONS? 1. where there are EXTRA-JUDICIAL STATEMENTS HAD BEEN MADE BY SEVERAL PERSON charged with an offense and THERE COULD HAVE BEEN NO COLLUSION with reference to said several confession;

Again, a governmental privilege is a privilege to prevent disclosure of state secrets covering military, diplomatic or other national security matters and based on the old Reynolds case, the requirement is to lodge a formal claim by the head of the department to be able to invoke.

2. this is also admissible as circumstantial evidence against the person implicated to show the probability of the latter’s actual participation;

HOW ABOUT AN EXECUTIVE PRIVILEGE? WHO CAN INVOKE AN EXECUTIVE PRIVILEGE? Only the president or the executive secretary can invoke the executive privilege according to this case. CAN PRESIDENTIAL COMMUNICATIONS UNDER THE SO-CALLED EXECUTIVE PRIVILEGE BE PIERCED? The presidential communication privilege can be pirced by showing of specific need of the party seeking presidential information in order to perform its functions mandated by the constitution. So you would note that what could pierce the executive or the presidential privilege communication is the

3. may also serve as corroborative evidence, if it is clear from other facts and circumstances that other person had participated in the commission of the crime. These are known CONFESSIONS.

as

INTERLOCKING

Let us now look at WHEN JUDICIAL ADMISSION TO BE MADE? Cuenco vs. Talisay. 1. it could be made in the pleadings, according to this case;

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2. during the trial whether verbal or written; 3. in other stages of the proceedings. Now, let us touch on OFFER OF COMPROMISE. Under RULE 130 §27. In CIVIL CASES at ANY STAGE of the proceedings you could offer compromise. Right?! However, in a CRIMINAL CASE an offer of compromise of an accused is an IMPLIED ADMISSION OF LIABILITY. Now, this case of People vs. Ergueza is informative. Ok! Why? An offer of COMPROMISE FROM AN UNAUTHORIZED PERSON CANNOT AMOUNT TO THE ADMISSION OF THE PARTY HIMSELF. So at times the party has a representative, if the person in unauthorized it cannot amount to the admission of the party himself. THE ACCUSED SHOULD HAVE BEEN PRESENT OR AT LEAST AUTHORIZED THE PROPOSED COMPROMISE. So what you find here is some sort of agency. The accused was not there, someone else offers a compromise so called for him but if he is unauthorized the compromise or the offer of compromise cannot be taken against the accused. Let us now proceed on a few more items, video recoding of evidence. Before I go to the video recording let us take note of the DNA RULE which was passed by the Supreme Court in 2008. Do you still remember that? Sir, meron ba nun? OO! Meron yun(chuckles). I will highlight the points that I feel necessary for your study. Under that rule there is what you call POST CONVICTION DNA EXAMINATION. Sir, ano yun post conviction DNA examination? You have already been CONVICTED, you are rendered GUILTY, you are ALREADY SERVING SENTENCE, COULD YOU ASK FOR DNA EXAMINATION? YES! COOULD SOMEONE ELSE ASK THE EXAMINATION FOR YOU? YES!

perpetrator of the offense? YES! But you have to FILE something – what do you need to file? A PETITION FOR HABEAS CORPUS in the COURT THAT ORIGINALLY RENDERED THE JUDGMENT. Take note of that hindi pa lumalabas yan! Baka biglang i-multiple choice kayo dyan. What else? ON MATTERS OF FILIATION – WHAT ABOUT MATTERS OF FILIATION? That rule said that if it is: 1. 99.9% and above it CORROBORATIVE EVIDENCE;

is

2. Below 99.9% it is a DISPUTABLE PRESUMPTION. WHAT FIGURES AM I TELLING YOU? After your examination, your relationship to the child is established to be 99.9% that is corroborative evidence, below 99.9% that is only disputable presumption. Let us look at VIDEO RECORDING as evidence. Torralba vs. People. CAN YOU USE VIDEO RECORDING? a while ago we discuss this in the light of the recent decision of the court in the Mangundadatu case. WHAT ARE THE REQUIREMENTS FOR YOU TO PRESENT A VIDEO RECORDING?

CAN YOU BE RELEASED if after the DNA Examination it is found that you are not the

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1. a showing that the recording device is capable of taking the testimony; 2. that the operator of the device was competent, not only the device must be capable but also the operator; 3. establishment of the aunthenticity or correctness of the recording – is it authentic or correct; 4. showing of changes, additions or deletions or either splicing;



5. showing of the manner of preservation of the recording or in the manner as we call, chain of custody;

you are able to perceive and perceiving you could make known your perception to another, the rest are what? Disqualifications. Do you follow?! Yun ang rule, qualification. The succeeding provisions are disqualifications.

6. identification of the speakers; WHAT ARE THE DISQUALIFICATIONS? 7. showing the testimony was voluntarily made without any kind of inducement. Is PARAFFIN TEST, still a reliable test today? NOT ANYMORE. Ok! Because there are ways that you could acquire nitrate burns not necessarily by firing a gun. There are also ways today of removing it so the nitrates can no longer be detected. Let us look at the child witness examination rule. Remember that?! Before we discuss the child witness examination rule let me set the rule that you have to take note when it comes to testimony of witnesses. OK! Parang mga antok na antok na kayo ah! What time is it?! 6…Ayan 5:40 na bumilis ah! Ok! Gusto nang umuwi…

1. mental immaturity and mental sanity – dyan papasok yung child witness examination rule. When you talk of mental maturity class, again the provision of the law did not provide for an age, if you would note that is why it used maturity and that leads me to CHILD WITNESS EXAMINATION RULE – applies to CIVIL. CRIMINAL AND EVEN ADMINISTRATIVE cases. CAN YOU ASK LEADING QUESTIONS ON A CHILD WITNESS UNDER THE CHILD WITNESS EXAMINATION RULE? YES but you have to inform the other party that you will be asking leading questions.

Now, class WHAT IS THE RULE WHEN IT COMES TO TESTIMONIAL EVIDENCE? Class I tell you, do not go to the bar exams na hindi niyo kabisado ang RULE 130 at RULE 132. Yung 131, kapag minalas ka at tinanong talagang malas ka because that was asked in the bar exams of 2003, the presumptions. Ok! So RULE 130 and 132, you have to know that by heart. Ok! I am not saying that you do not read the rest, you also study the rest but you have to know by heart RULE 130 and 132.

CAN DEPOSITIONS BE TAKEN UNDER THE CHILD WITNESS EXAMINATION RULE? YES depositions can be taken.

WHAT IS THE RULE WHEN IT COMES TO TESTIMONIAL EVIDENCE? the rule is this, that the witness is ABLE TO PERCEIVE AND PERCEIVING COULD MAKE KNOW HIS PERCEPTION TO ANOTHER. The rule does not require you to be a college degree holder, to be a higschool graduate all that it requires is that

There is what you call COMFORT OBJECTS! Ano yung mga comfort objects? Dapat alam niyo yan baka i-multiplt choice kayo dyan. Those objects where the child witness is comfortable, that she could hold on to in the course of the proceedings.

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SHOULD THE COURT DETERMINE THE ABILITY OF THE CHILD TO TESTIFY AND TO KNOW WHAT IS RIGHT AND WHAT IS WRONG? YES that has to be determined under the child witness examination rule.



WHO ARE COMFORT PERSONS? Comfort persons could be a nanny, a yaya or ANY PERSON TO WHOM SHE FEELS THE TRUST AS SHE TESTIFIES. SHOULD THE EXAMINATION OF A CHILD WITNESS BE FACE-TO-FACE IN COURT OR COULD IT BE ON A TV LIVE LINK PROCEEDINGS? YES. Take note, the proceedings here could also be treated confidential. CAN A PERSON BE IDENTIFIED BY HIS PHYSICAL BUILT, VOICE AND PECULIAR SMELL? In this particular case…kayo naman oh! Para kayong niloloko! Hindi ko kayo niloloko!(chuckles). Can an accused be identified by reason of his physical built, voice and peculiar smell? People vs. Cañete, while it may be true that it was dark when the appellant ravished the private complainant or raped her in his house, the physical built of the appellant but also with his voice and peculiar smell, the victim was able to identify. Alam niyo naman siguro yun, yung smell! Meron nga ibang tao yun at yun ang amoy eh!(chuckles) 2. by REASON OF MARRIAGE – this not a privilege, this is a disqualification by reason of marriage and class please take note that the INFORMATION HERE IS NOT CONFIDENTIAL, it is the marriage that disqualifies you to testify. BUT AFTER THE MARRIAGE CAN YOU TESTIFY? YES, unlike privileged communication by reason of marriage, even after the termination of the marriage are you still bound by the privilege? YES. 3. The provision in §23 in the last 8 years has been asked once, the DEAD MAN’S STATUTE. WHAT IS

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THE DEAD MAN’S STATUTE? Any claim on the estate of a deceased person, any party or assignors of parties are disqualified to testify because he has an interest on the estate of a deceased person or a person of unsound mind. Are we clear? So person who have interests, like parties or assignors of parties cannot testify, they are disqualified to be a witness. However, witnesses in documents they have executed, witnesses can testify based on the Sanzo case, they could also present documents that were executed by the deceased during his lifetime. WHO ARE PROHIBITED? WHO ARE DISQUALIFIED?Only parties or assignors of parties. Involving take note, this is a very narrow provision meaning the application is limited, you could only invoke disqualification if it involves a claim against the estate of the deceased or a person of unsound mind. Are we clear?! 4. another set of disqualification is PRIVILEGED COMMUNICATION – ngayon may time ako to highlight important paragraphs because I still have 15 minutes. Ok! A. Class bear this in mind ATTORNEY – CLIENT, IN VIEW TO OR IN THE COURSE OF one’s professional engagement. The privilege extends not only during the life of the attorneyclient relationship but also in view to, meaning in anticipation of a professional engagement is likewise covered. Do you follow?! That involves



confidential information that you have received and please take note of the privileged communications under §24 this is the only privileged communication that the privilege extends to an agent, a secretary, a clerk, this is the only privileged communication where it extends to the secretary, clerk or stenographer and it could only be waived, the privilege, upon consent of the lawyer and the client. B. How about DOCTOR-PATIENT? That you do not have agency in doctor-patient. Ok! It only says that for a doctor-patient privilege to attach, that the information that he received should be necessary for him to give treatment or advice. Remember that paragraph, that the information given to him is necessary for him to give treatment and advice. me ask you this question,he received a laboratory examination. As per instruction of the doctor there is a need for me to go undergo a laboratory examination. IS THE LABOARTORY EXAMINATION COVERED BY THE DOCTORPATIENT PRIVILEGE? For you to be able to answer that you will answer this question, WHO REQUIRED YOU TO TAKE THAT EXAMINATION? If you are the doctor who required to take the examination and it is necessary for him to give you advuce and treatment by reason of that

information, that is covered by the privilege. Pero kung ilaw eh. Feel mo lang magpa-eksamin. Di ba may ganun! Pa-eksamin nga ako. Kung feel mo lang, ay wala! Eh wala ka naming doctor papaano magkakaroon ng privilege. Do you follow? But if it was necessary for the doctor to act and to give treatment and advice then it is covered by the privilege and always remember THAT ONLY DOCTORS WHO ARE DOCTORS OF: -

MEDICINE;

-

SURGEONS;

-

OBSTETRICS are covered by the privilege. Ok! Nontraditional doctors are not covered by this privilege, midwives are not covered by this privilege, nurses are not covered by this privilege. Ok ba?!

Let

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C. Now the next one is PENITENT and PRIEST. Ok! Take note class that this privilege will only apply if what IF IT IS ENJOINED BY THE RELIGIOUS INSTITUTION TO WHICH HE BELONGS, meaning confession is required by the religious institution to which he belongs, if it is not then this privilege will not apply. Therefore, generally it applies to the Catholic Church others would not require you to confess before a priest. Yes you go to the pastor but he is not covered by the privilege. Yes you publicly proclaim that you



committed a sin that is not covered by the privilege. It should be enjoined by the religious institution to which he belongs. Last point on this privilege, WHAT IF YOU CONFESSED BEFORE A NUN? Natawa na naman kayo…para kayong niloloko! That is not covered by the privilege that is not covered. D. There is also what you call a FILIAL PRIIVILEGE. YOU CANNOT TESTIFY AGAINST AN ASCENDANT OR A DESCENDANT UNLESS HE WAIVES IT. Ok! That is subject to waiver. Let me end…Ayan, end na! Oh may 5 minutes pa. I would like to end in discussing admission, ay hindi pa pala yan! Tatlo pa! Eh, paano baka mamaya may lumabas hindi ako nakokonsensya. Kasi ganun ako eh, I want to give it to you para…By my conscience I have given what I have to teach you. The first of the three that I would like to discuss would be SIMILAR CONDUCT. Ok! You know that?! Class that is fairly simple, just remember this. THE FACT THAT YOU DID OR DID NOT DO AN ACT AT SOME TIME DOES NOT MEAN THAT YOU DID OR DID NOT DO AN ACT ON ANOTHER TIME. Do you follow? Ganun lang yun, sir anong ibig sabihin nun? Parang magulo…maganda lang pakinggan sir! In simple words class, the fact let us say that I committed robbery on a bank here in Recto, let us say if there is an Allied Bank here in Recto, does it mean that I am the same person who committed the robbery of an Allied Bank in Ayala Avenue. Do you follow?! It does not mean that way, you cannot attribute to acts which appears to be similar. Do you follow?! However, if you can establish, it cannot be presented, again my act of robbing the Allied Bank in Recto, the facts surrounding that

commission can be presented in that case but the facts surrounding the commission cannot be presented in the case involving the Allied Bank robbery in Ayala. Do you follow? Because it is totally unrelated however, the facts in both cases could be used to establish a scheme, an intent, a pattern. Ok! among others. For example – ang klase ng pagnanakaw mo nirerentahan mo yung kabilang building tapos binubutas mo lagi, malamang ikaw yun. Do you follow? Pattern, intent – what is an example of intent? Unang asawa mo namatay naka-claim ka ng insurance. Pangalawang asawa mo, namatay na naman naka-claim ka ng insurance. Yung pangatlo, muntikan lang mamatay. That is intent ok! Bakit lahat ng asawa mo namamatay at kumikita ka?! Do you follow?! There you will see the intent, when it comes to the insurance. You will see that they are what? They are insured. Do you follow?! The next which I think I should discuss with you is ADMISSION OF A THIRD PARTY. Do you follow? Admission of a third party, as a rule ONLY YOUR ADMISSION CAN BE TAKEN AGAINST YOU, A THIRD PARTY ADMISSION CANNOT BE TAKEN AGAINST YOU, UNLESS YOU ARE A: joint owner, co-owner, co-debtor: there is what you call common interest for as long as you are partners in a partnership or there is agency, principal-agent relationship. WHAT ARE THE REQUISITES?

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1. there is common interest; 2. that the act or the relationship has been established by the fact other than the admission – meaning there are documents to show the partnership, there are document to show the principal-agent relationship; 3. the act would have been committed during the existence of the partnership or the relationship.



Now, that likewise applies to CONSPIRACY and the following are the requisites: 1. the conspiracy would have been established by a fact other than the admission of a co-conspirator; 2. there is a commn design; 3. it was made during the existence of the conspiracy. But please take note of this, a declaration of a co-conspirator is excluded only, if made extrajudicially. But if the co-conspirator is in court. Imagine I am the judge and he sits here and points at you, at you, at you, can that be taken against you? YES because that is subject to cross-exaination. As a final point class I would like you to take note of AUTHENTICATION OF DOCUMENTS. I will not discuss that anymore, that is §18-33 of RULE 132, that is a good source of question. You have to know the difference between private…how to authenticate a private document fro a public document. You should know what is an ancient document, an ancient document is in existence for more than 30 years and it should have been in the custody of the person whou should have been in custody of the same and it appears to be unblemished. Ok! That is an ancient document. So with that IT IS 6 O’CLOCK! It is already 6 o’clock so thank you for your patience!(Class APPLAUDING!) GOODLUCK!!! Naku! Meron akong hindi nasagot, you want me to answer this pa?! YES! Hindi huwag na sige, those who will ask questions just approach me…ANSWER sir! Answer!!!(Class) Ok! Sige… is a MOTION FOR CONSIDERATION MANDATORY before filing a PETITION FOR CERTIORARI? That is a PRE-REQUISITE! Unless you fall in the exceptions, but in a PETITION FOR

REVIEW ON CERTIORARI that is not a prerequisite. In case of denial of a petition for certiorari, what will be your remedy? Ay kulang ang question mo! Ang tanong dyan ganito, remember RTC, CA and SC have concurrent jurisdiction. Do you follow? Kapag sa Supreme Court, eh wala ka nang remedy MAG-MR ka kung gusto mo! For example class, let us look at this, RTC there was a petition for certiorari…correct?! there was a petition for certiorari in RTC on an interlocutory order, the court disposes of the case, where do you go from the RTC – resolution of your petition for certiorari? In the CA, what will you file? Remember the petition for certiorari is an original action filed before the RTC, you file what? A notice that is an ordinary appeal. If let us say, if the CA, it is a petition for certiorari in the CA, it finally disposes of the case because when the court decides a petition for certiorari it finally disposes the case, where do you go? SUPREME COURT on a PETITION FOR REVIEW ON CERTIORARI. Ok! The last question, mahaba ito ah! In an ejectment case a final judgment was rendered after almost 10 years by mere motion judgment-obligee obtained a writ of execution and a notice to vacate was served to a third party in possession of the subject property by virtue of a concession agreement, what is the best remedy of the third party? It will depend on the nature of his possession. Ano ba yung nature ng possession ng third party? Has he purchased the property? Iba yun, in that case he will have to recover possession. Do you follow? The regular action for recovery of possession. if let us say he is not authorized or not entitled to stay on the property, he has no remedy but to recover from the person who has tolerated or has allow him to use the property if there was once a consideration. So…Yun lang!!! SALAMAT! Thank you!

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Dean Tranquil S. Salvador III: Critical Areas In Remedial Law

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