Transcribed Lectures of Atty. Villasis(Final)

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Rules to Remove Rule 134 perpetuation of testimony. No longer included in the Rules of Evidence. Rule 134 already incorporated in Rules 23 and 24 on Deposition pending action and deposition pending appeal Rule 43 - by virtue of the expanded jurisdiction. Appeals from quasi- judicial agencies should no longer be brought to CTA but to the CA. Rue 133- Spec Procedure on Adoption have been transferred to the Family Code OVERVIEW ON REMEDIAL LAW: Substantive law- it creates, defines and regulates the rights and obligations. Remedial Law- procedural law. Remedial and Substantive law are not the same. They are promulgated under a law. Art 8, Sec 5 par 5 of the 1987 provides for the authority of the Supreme Court to promulgate the Rules of Court. Under 1973 Constitution, the promulgation of the Rules is a share power between Congress and the Supreme Court to promulgate the rules of court and to enact law. Art 8 of the 1987 Constitution, it is still a shared power between Congress and SC. Leo Echegaray vs. Exec. Sec of Justice- a bill was pending before Congress for the abolition of the death penalty. Hence, the lawyer of Echegaray sought for the issuance of a temporary restraining order by reason of the pendency of this bill. This was question the legality of TRO by the Sol. Gen on the ground that the decision was already final and executory hence, the SC has already lost jurisdiction. The SC said that a person who not been convicted by final and executor judgment still possess collateral rights and this right can be invoke before the courts because the powers of the exec. legislative and judiciary in saving the life of the accused does not exclude each other because there is no higher right than the right to life. What does this mean? It means that the SC still has jurisdiction to issue a TRO. In the case, the SC expanded the concept of jurisdiction. Before when we speak of jurisdiction it means the power to try, to hear and decide the case but because of the Echegaray case, thus, now when we speak of jurisdiction it is not only the power to try, to hear, to decide the case but also includes the power to execute the judgment, until the final disposition thereof or until the full and complete service of sentence by the accused. In the same case, the SC, took the opportunity and said that when we speak of the power to promulgate rules it is no longer a shared power between Congress and SC. It is only the SC who can promulgate the Rules of Court. This was reiterated in GSIS vs. Heirs of Fernando Caballero, which states the power to promulgate rules concerning pleadings and practice now belongs solely to the SC. NEYPES VS. CA ON THE MOTION FOR RECONSIDERATION: 1

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW If an adverse judgment is received, under Rule 37 a motion for reconsideration, motion for New Trial can be filed within a period to file an appeal which is 15 days from receipt of judgment. However, under the old rule, if a MR is filed on the 8th day, a motion for appeal can be filed but only for the remaining period provided it is not less than 5 days. Under the Neypes vs. CA, the CA laid down the fresh period rule which means that a fresh period of 15 days from receipt of the denial of MR, MNT to appeal. ESCAPE DOCTRINES – these are the doctrines or principles that can be used during the bar exams. 

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Sec 6 Rule 5– Liberal construction principle- akin to Art 19 of the Civil Code. People vs. Mapa- a one day delay in filing an appeal may be allowed applying the liberality principle SC has the power to suspend, relax the application of the rules of court. Republic vs. Jennifer Cagandahan – Entry of the gender of the Birth Certificate from female to male. The SC in the case state that if correction of entries in the birth certificate is to be made, the Local Civil Registrar Office, Sol Gen and Prosecutors Office should be impleaded. In the given case, lawyer of Kagandahan forgot to implead the Local Civil Registry office. He only furnished the office a copy of the petition but did not implead said office SC said that this shouldn’t be the case because the Prosecutor’s Office is a indispensable party but the SC applying this principle, suspended the application of the rules. SC said that the act of the counsel of Kagandahan in furnishing a copy to the Local Civil Registrar is already considered a substantial compliance to the requirement of the rule. This also applies to the requirement of the submission of a certificate of forum shopping. The SC applying the same principle, suspended the application of the rules. In another case, what did the SC said, after pre trial, no evidence can be admitted unless it has been pre-marked, presented, identified, offered and admitted. So if the evidence has not pre-marked, this cannot be presented anymore. In one case, the SC decided to suspend the application of the circular because it has the power to suspend the rules. Why did the SC allowed the filing of the 3rd motion for Reconsideration such as in the case of the League of Cityhood case? Because there is a new set of members in the SC. Take note of Philippine courts are courts of law and equity. – This means that we apply equity in the absence of the law but not as a replacement to the law. If there is a jurisprudence that is applicable, it should be applied but if there is no particular law or doctrinal pronouncement that can be used, what should be done, we apply equity. Just a year ago, Justice del Castillo, borrowed the jurisprudence of a foreign jurisdiction regarding the corporate will because there is no 2

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applicable law within the Philippine jurisdiction. Under Art 8 of the Civil Code, no court, no judge can decline to render a judgment by reason of absence, obscurity or insufficiency of the law. So whether we like it or not, the judge has to rule whether there is an applicable law or jurisprudence. In a contract of sale of a property where the title is spurious, and a case in court for the annulment of the sale and move that a deposit be made by defendant so that in case the latter cannot pay, the plaintiff has recourse. The court applying equity in the case, granted the motion of plaintiff and order defendant to make a deposit. The principle of judicial hierarchy-presupposes that if we talk about the filing of certiorari, prohibition and mandamus, under Rule 65, it is the original and concurrent jurisdiction of RTC, CA and SC. In other words, the RTC, CA and SC can handle it. But applying this principle, if it is a decision of MTC, we file certiorari with RTC, if it’s the RTC, we go to CA. Exceptions: 1. Question of law. Miaki vs. Patag ; 2. Cases or matters which involve transcendental interest to the public – a decision of the RTC can be directly elevated to the SC. Doctrine of Judicial Stability or Doctrine of Non Judicial Interference – no court of equal grade can interfere against the order of another court of the same level or coordinate jurisdiction. An RTC cannot issue an injunction against an RTC of different branch. An RTC cannot issue a TRO against SEC or CA against CTA. As a general rule, remedial laws are prospective in character. Can we apply the provisions of Rules of Court retroactively. Yes, although remedial laws applies prospectively, it can be applied retroactively to all cases which are undetermined at the time of its passage. Ex. Fresh period rule- Neypes rule DOCTRINE OF IMMUTABILITY OF JUDGMENT – which means that once a decision has already become final and executory it can no longer be altered, modified or changed, except clerical errors and nun pro tunc judgments. People vs. Valeroso- 2010 case. Valeroso was convicted of illegal possession of firearm, he was sentenced. He wrote to the SC by way of appeal, and ask the SC to review the case, circumstantial. The Office of Sol Gen filed a manifestation that there is a need to revisit the case of Valeroso because there seems to be a violation of his constitutional right on illegal search and seizure. Although the case has already attained finality, the SC treated the letter as a 2nd MR. By reason of this the case of Valeroso was reviewed and later on acquitted him. Based on the surrounding facts of the case, there was a warrant of arrest, police entered and saw Valeroso took him and paraffin his hand. They conducted a search and one of the policeman found a gun inside the closet. He was charge of illegal possession of firearm. SC found that there 3

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was a violation of the search and seizure. The policemen invoke the plain view doctrine and even if the gun was not found in plain view, they maintained that the gun was found incidental to a lawful arrest. SC disagreed and reversed the decision, acquitting him even though Valeroso was already serving sentence. PRINCIPLE OF RESIDUAL JURISDICTION OF THE COURT- Sec 19, Rule 17 – a decision of the MTC is immediately executory except if the defendant has filed a notice of appeal, posted supersedeas bond, deposited, pay accrued rental, and docket fees. A notice of appeal should not be filed with the appellate court but with the court a quo otherwise the decision will become final and executory. Under Rule 40, as long as the MTC has not transmitted the entire records of the case to the RTC, it can issue judgment, allowing execution pending appeal. Remedy: Certiorai with RTC so it can stop the proceedings for a period of 10 days after that the judge will go on with the proceedings unless a petition for TRO has been filed. Failure of the judge to stay the proceedings will hold him liable administratively. Accion interdictal (Ejectment) is filed with MTC. Forcible entry and Unlawful detainer under Rule 70 not RPC. In case of unlawful detainer, it should be filed one year from last demand. Accion Publiciana is filed with MTC because it is a real action. Jurisdiction is determined by looking at the assessed value of the property via the tax declaration. So the rule is, in Metro Manila, P51,000 and above RTC, P50,000 and below MTC. Outside Metro Manila, P21,000 and above RTC, P20,000 and below MTC. How will you know if it’s a real action or personal action? Rule 4 defined real action as action the subject matter is property, it involves title ownership, possession, foreclosure partition or any interest. It is filed in the place where the property is located. On the other hand, personal action defined as all other actions which are personal action. So for accion publiciana, it is not correct to say that it should be filed with the RTC and for accion interdictal, it should be filed with MTC. To determine where to file the case of accion publiciana, look at the assessed value. CRESPO DOCTRINE – Mario Crespo (Mark Jiminez) vs. Judge –SC stated that there is a criminal case filed before the Prosecutor’s Office. If there is a decision from the Prosecutor’s Office – determine probable cause and will file a case before the court. The resolution of the Prosecutor can be subject of MR and if it is denied, it can be subject of Petition for Review with the DOJ. The Secretary DOJ reversed it and directed the Prosecution to file a motion to withdraw or dismiss the case. But the court refused to dismiss the case since it has acquired jurisdiction over the case. SC said that once the case has been filed and court has taken cognizance of the case and it assumes 4

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jurisdiction until the final disposition of the case and so it is not bound by the decision of the Public Prosecutor that it has not found probable cause. When can the court grant the Motion to Withdraw? There should be an evidence that has been overlooked by the Secretary of Justice. In the absence thereof, the motion to withdraw should not be granted. Rule Making Power of the SC Limitations: 1. Simplified and inexpensive procedure to all action and proceedings 2. Uniform for all courts of equal grade 3. Not diminish, increase or modify substantive rights Where do you apply the Rules of Court? 1. Land registration cases 2. Insolvency 3. Labor cases When can the provisions of the Rules of Court be applied? Yes, by analogy or in a suppletory character or whenever practicable and convenient

DISCUSSION ON THE FLOWCHART OF CIVIL PROCEDURE: Every action is based on a cause of action. You cannot go to court without a cause of action. In order words if we talk about cause of action there are three things must be taken into account. First, there must be a right, secondly, there must be an obligation to respect that right and third there must be a violation of a right. But violation of a right is not enough, that violation should have resulted to damage or injury. It is not enough that a person has a cause of action, he must also have a right to action which means that cause of action has already ripen and there is nothing that prohibits that person from filing the complaint in court. Ex. In case the case of collection of sum of money. There is a need under the New Civil Code to send a demand letter first before you can file case. In other words there is no delay unless there is a prior demand. So if A lent P5,000 to B the agreement was B will pay A on Dec 12, 2011. B was not able to pay the obligation. Does A have a cause of action? What is the right of A? The right to be paid the P5,000. What is the obligation of B? To respect the right of A to be paid. Was there a violation of A’s right? Yes, the obligation arise when B did not pay. So therefore, if we look at the elements of a cause of action, you have a cause of action because that obligation resulted to damage on the part of A. However, the New Civil Code tells us that before you can resort to court, there must be a demand already in order for that obligation to be due and demandable. This a fact that will affect your cause of action because even though you have a cause of action if you have not sent a demand, you can go to court but nonetheless your case will be dismissed because of failure to state a cause of action. 5

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Another thing I want to tell you about cause of action is when you speak of a suit between members of a family, the rule under the Family Codes states that you must have exerted effort towards an amicable settlement. The same is true with regard to exhausting administrative remedies first before you go to court. The same is true with respect to the application of the rule on prescription. You have a cause of action but because you slet on your rights, what will happen is you cannot go to court because your cause of action has already expired. The same is true if there is a case of litis pendencia in which case there may be case of splitting a cause of action, therefore you can no longer file a case in court. The same is true if there is res judicata, you cannot go to court because you are already barred by prior judgment. These factors tell us that although you have a cause of action, you cannot go to court anymore because you have no right of action. Now let us assume that you have a cause of action, a right of action, can you go to court? Yes, you can now file a complaint in court. But is there a situation where you go to court even though you don’t have a cause of action? Yes, there are these 3 exceptions; 1. Rule 62- Interpleader 2. Rule 63 –Declaratory Relief 3. Sec 10 Rule 3 As I told you last time, in the case of declaratory relief, there are two parts. Remember that you go to court even if you don’t have a cause of action. You go to court because you want the court to interpret the provisions of a contract, to declare the legality, constitutionality of a treaty, particular ordinance, law. So therefore even if there is no violation of law, no violation of contract, you went to court for declaratory relief, for the court to interpret the provisions of the contract in order for you to comply with your obligation. So even if there was no violation of a right, you go to court even if there is no cause of action. Lets say during the pendency of the declaratory relief there is already a violation of the law, or ordinance or provisions of the contract. What would be the effect of that? That declaratory relief will be converted into an ordinary civil action. If we talk about Interpleader under Rule 62, for instance in a situation where I am the lessee of the property and A is the lessor of the property. For the last 10 months I have been paying to him the monthly rentals until on the 11th month, B told me that from now on I will pay the monthly rental to him and on the 12th month C also comes in to the picture saying to forget about A and B and ask for the payment of the monthly rental. So I am now in quandary. I want to comply with my obligation. I want respect the right of the lessor to be paid the monthly rental but I do not know who to pay the monthly rental. So I go to court by way of a petition for interpleader so that A, B and C can interplead among themselves and for the court to declare who among them has the right to receive the monthly rental. In this particular case, do I have a cause of action against A, B and C to interplead among themselves? No, there is no

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW violation of a right but nonetheless I am allowed to file case even in the absence of a cause of action. The third exception is very impt because it is a bar area is a situation of an unwilling plaintiff. There is an indispensable party, perhaps a co-owner of a particular property, so these co-owners who are indispensable party should be joined in order to protect their interest in the property. However, this co-owner don’t want to participate. So we have a situation of an unwilling plaintiff because he does not want to join the plaintiff but he is supposed to be a coplaintiff. So what are we going to do if you are the plaintiff in that particular case, I am going to sue the co-owner as an unwilling plaintiff. In that particular case, you don’t have a cause of action against the unwilling coplaintiff. You only sue him not because you have a cause of action against him, or because he has violated your right but because you want him to be impleaded in the action, because if you do not implead him there is an absence of an indispensable party. And under the rules, where there is absence of indispensable party, the entire proceeding shall be considered as null and void. Let us assume that we have a cause of action, is there a need for us to file the complaint to the barangay? Ex. A and B are residents of the same barangay, residents of adjoining barangay of the same city or municipality or adjoining cities or municipalities and the parties have agreed to submit themselves to barangay conciliation. Our local govt code particularly the law on katarungan pambarangay requires that the parties to undergo barangay conciliation during which the barangay chairman will try to bring the dispute to amicable settlement. In case no amicable settlement is reached, this will call for the composition of a pangkat who will conduct conciliation to encourage the parties to obtain settlement. If there is a settlement, the parties will execute a compromise agreement. That comprise agreement is a subject of an execution and at the same time it can also be as subject of repudiation. If there is no repudiation, this compromise agreement will be executed within a period of 6 months from the date of the compromise agreement. But if there is a specific date stated in the compromise agreement for A to pay the obligation of Dec 2012 he must comply with that date. If after 6 months you have to go to court in order for you to execute the compromise agreement. Which court will you go? MTC, What if the amount involved falls under the jurisdiction of the RTC? Let say the amount involved is Php500,000.00? The case should still be brought before the MTC because you are not filing a separate action but you are only going to the MTC for the execution of the compromise agreement. Take not that what is being required by the law on barangay katarungan is that the parties should be residents of the same barangay. Take note of the case of Angel Boleleng vs. Judge Vera of Baguio where the court ruled that the postal address is not a residential address because a person can have two or more postal address but cannot have more than one residential address. The same is true in one case, where the SC stated that here comes A, the brother of B, who 7

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW is apparently out of the Philippines so he authorized A to file a complaint against C. C and A are actually neighbors in the same barangay. So in order for A to be able to file a case against C, he asked for a special power of attorney from B and so B gave him the SPA precisely for the purpose of filing a case for and in behalf of B. So armed with the SPA, A went to court to file the case for the collection of sum of money. A and C are neighbors and residents of the same barangay. So C filed a motion to dismiss? What is your ground for failure to comply with the requirement of barangay conciliation? Before the ground is failure to state a cause of action, but NOW the newest ground under Sec 1 of Rule 16, it is failure to comply with condition precedent. Take note that the requirement of barangay conciliation is only a procedural requirement and not a jurisdictional requirement. It can be waived if the parties agree not to undergo barangay conciliation because it is only a procedural requirement. Take note further that only individuals can be parties to barangay conciliation. A corporation or juridical person such as an estate cannot be a party to a barangay conciliation. A lawyer cannot represent a party in barangay conciliation. If no settlement is reached, the parties shall secure a certificate to file action. If there is no certificate to file an action, the case can be dismissed for failure to comply with condition precedent. Therefore, in order that to show to satisfaction of the court, you must be able to show a certificate to file an action. Thus, this will be attached in the complaint. After doing so, you can now file a complaint in court. But the question is who is going to be the parties? Who should be the plaintiff and defendant. But a defendant can be a plaintiff in a counter-claim. So a plaintiff maybe a defendant and the latter can be a plaintiff. Now, assuming you now know the parties to a suit, where is the venue of the action? Should it be filed in the place where the property is located or the place of the residence of the plaintiff or defendant? To be able for us to answer the question of venue in the bar exam, you have to know the distinction between a personal action and a real action. If it is real action, you have to file the case in the place where the property is located. An ejectment suit is a real action because it involves property and possession of a real property. A collection of sum of money on the other hand is a personal action because the Rules of Court tell us that any other actions are considered a personal action. So it is easier to determine what is a personal action as compared to a real action. Whether it is a real action we have to determine whether the subject matter of the case is a real property and if the answer is yes, you have to ask whether it involves, title, ownership, possession, foreclosure, partition, ejectment. If the answer is yes, any interest in the property is a real action. And if it is a real action, you have to file the case in the place where the property is located. Now, we already know the venue, that we need to file the case in Quezon City because the property is located in Quezon City. The next question we need to ask is which court has jurisdiction over the case. Is it RTC or MTC. We need to know the rule on jurisdiction. Should we file it in MTC or RTC or CA or SC?

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Take note, whether you read Rules 1 to 183 of the Rules of Court, you cannot find the rule on jurisdiction because jurisdiction is conferred by law, by the constitution, by RA 7671 by BP 129. Precisely, only the law gives us the jurisdiction. How do we know that ejectment suit is under the jurisdiction of MTC? Because it says so. How do we know that a complaint for murder should be filed with RTC? Because the law says so. How do we know that an action not capable of pecuniary estimation should be filed with RTC? Because the law says so. How do we know that collection of sum of money involving the amount of Php 401,000.00 and above within Metro Manila should be filed with RTC? Because the law says so. And jurisdiction cannot be subject of an agreement of the parties. It cannot be waived or stipulated by the parties because only the law confers jurisdiction. So we now know venue, the parties to a suit already, and which court has jurisdiction over the complaint? Can we now file the case? We still have to know the law on provisional remedies. Before filing a complaint, you have to know that this the recourse of our provisional remedies. It presupposes that there is a main action , and you are asking for a writ of attachment under Rule 57. You are asking for a writ of attachment inorder to secure a favorable judgment granted to you by the court. For instance, A who is seeking for a collection of sum of money of P5M against B. He knows that B is a gambler, a womanizer. So if the case will run for 5 years, B will no longer have money to pay his obligation. If you do not study the law on provisional remedies, you can also file the complaint immediately, but if you know provisional remedies and there is an intention to defraud creditors, you can file for a writ of attachment so that the property of B can be placed under custodia legis and this property will be given to A in the event B is not able to pay his obligation. The same is true if you ask for prohibitory or mandatory injunction. If you talk about prohibitory injunction, we talk about a TRO, but the TRO is only possible if your prayer is for the issuance of a writ of prohibitory injunction. There is no TRO in mandatory injunction. This is the importance of the rule on injunction. The same is true when we talk about Rule 16 when we file for a writ of replevin, it presupposes that there is a main action for recovery of a personal property. With the issuance of a writ of replevin, you can now re-possess a particular personal property. For instance A borrowed money from BPI for the purchase of a Toyota Fortuner at Toyota Commonwealth. So if A was able to secure a loan so BPI pays Toyota Commonwealth, A becomes a mortgagor and the Fortuner is now subject of the chattel mortgage and an acceleration contract which means that if the contract is for 5 years and A fails to pay, the amortization from the 21st month to 60th month is due and demandable. So if A fails to pay his obligation, BPI will send a demand letter and it will file for recovery of personal property and seek for the issuance of a writ of replevin. Once it has secured a writ of replevin, this will be executed by the Sheriff and go to the house of A and armed with the 9

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW writ will recover possession of the Fortuner and give the same to BPI. The same is true when we speak of support pendente lite under Rule 61. Like in the case of rape and the victim becomes pregnant, the accused shall be required to give support pendente lite even though he has not be convicted yet, even though you deny being present during the commission of the rape. So now, after knowing these, can we now file the complaint? Yes, provided that you have paid the required docket fees. And when we talk about docket fees when have to go back to the mother of all doctrines, which is the Manchester Doctrine wherein the general rule is that NO DOCKET FEES -NO JURISDICTION. But why did the SC say in a particular case ruled that the court cannot acquire jurisdiction over the case unless there is a full and complete payment of docket fees. Because the court discovered that there were actually acts or attempt to defraud the court when the plaintiff did not include the amount of damages in the relief portion but nonetheless alleges the same in the body of the complaint. But as you know in another case the court relaxed the doctrine on the payment of docket fees applying the Liberal Construction Rule under Rule 6 Sec 1. So the docket fees can still be paid within the prescriptive period of the action or if you can pay it will form part of a lien on the judgment. This was the ruling in Balacad vs. CA, and the Home Guarantee Corp vs. Arco Builders Inc. (March 10, 2011) where the case explained on the payment of docket fees. So when the plaintiff files the case in court and paid the docket fees, the court acquires jurisdiction over the person of the plaintiff. So take note, the moment plaintiff files the complaint in court and immediately pays the dockets, the court acquires jurisdiction over his person. I am emphasizing this because it reminded me of the first question in the 1981 bar exams. The question was, there was a plaintiff who was in Japan he authorized his lawyer to file a case for accounting and damages and so the lawyer filed the case in court and upon filing of the case B filed a motion to dismiss. There was an SPA but of course during that time there was no requirement for a certification against forum shopping so an SPA would suffice. The defendant argued that in lieu of the accounting, the court has not acquired jurisdiction over the plaintiff. The SC said that the moment plaintiff has filed the case and immediately upon payment of the required docket fees, the court acquires jurisdiction over the person of the plaintiff. Because it is absurd to argue that you have filed the case but court has not acquired jurisdiction over your person. Now the case has been raffled, the first thing that the Branch Clerk of Court would do is to prepare the summons in order to acquire jurisdiction over the defendant, unless of course there is voluntary appearance on the part of the defendant. If you look at the provision of Sec 20 Rule 14, after the filing of the complaint and payment of the legal fees, the court will now prepare the summons, it presupposes then that there was a payment of docket fees. This summon will be served by the sheriff and will thereafter grant the court jurisdiction over the 10

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW defendant. Ex. Let us say, Bong is the defendant in the case filed by Dean Espejo for a sum of money case. So I called Bong and informed him of the case and that the summons will be served. Bong says before he received the summons he already filed a motion for time because he is leaving for Cebu. What is the effect of the motion for time? The effect is that the court is deemed to have acquired jurisdiction over Bong. So instead of a motion for time, a motion to dismiss should be filed and allege that it is only a conditional appearance precisely to question the jurisdiction of the court over your person. If you do not do that the MTD will be considered as submission to the jurisdiction of the court. In other words, it has to be alleged that such motion is only conditional appearance precisely because I want to inform the court that there was a defective summons and so therefore the court has not acquired jurisdiction over my person. Now what if you added grounds other than lack of jurisdiction over the defendant? Does this mean that you have embraced or voluntary appeared and submitted to the jurisdiction of the court? No, because of the express provision that even if you add OTHER GROUNDS OTHER THAN LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT if precisely you went before the court by way of special appearance to question the jurisdiction over your person. So lets say the summon could not be served because the defendant or his whereabouts is unknown. Under Sec 14 Rule 16, you can do two things, you can archive the case, or move for the service of summons by way of publication. As a rule, summons by publication is not allowed. In personam action, summons by publication will violate due process. If you cannot serve summons by service in person, invoke the provisions Sec 10 Rule 14. But can you invoke summons by publication by way of exception. Under Sec 14 of Rule 14, this means that the whereabouts of the defendant is unknown. Rule 16 of Rule 14 means that the person of the defendant is outside of the Phils. Ex. I went to MGM to watch the fight of Pacquiao, so therefore I am temporarily out of the Phils and after the fight I will go back to the Phils. This means that this situation calls for a service of summons by publication. But of course you can first invoke substituted service of summons. When we talk about the whereabouts of the defendant is unknown. If after 6 months you cannot still find him, you can now file a motion with court for leave to serve a summons by publication. If the summon is served to the defendant. What are his remedies? If you were the defendant, the first thing you would do upon receiving the summons, as a rule he should file an answer within 15 days. So for instance I am the defendant and Bong is the sheriff. So he serves the summons to me so automatically the court acquires jurisdiction over me. The plaintiff sues me for the amount of P5M. I am willing to pay but I need time so I ask my lawyer to buy me some time. The first thing that the lawyer will do is to file a motion for time, which means you file a motion for extension to file an answer. But be 11

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW sure that when you file a motion for time, it should be done within the reglamentary period to file an answer and not after the lapse of the 15 day period to file an answer because if you do that there is no period to extend anymore. The lawyer said, let us not file for a motion for time, but a motion to dismiss to question the jurisdiction of the court or invoke the provisions of Rule 12 on Bill of Particulars to clarify his ambiguous his allegations contained in his complaint, or rectify his ambiguous allegations so that defendant can prepare for his answer. On the other hand, the plaintiff upon filing the complaint may decide not to push through with the complaint so under Sec 1 Rule 17 he files a notice of dismissal before the filing of answer and he can file for dismissal until the 2nd time. So when the plaintiff files a notice of dismissal, the court is not given the opportunity or discretion to grant or deny the dismissal because when the plaintiff files a notice of dismissal that notice is a matter of right on the part of the plaintiff provided there is no responsive pleading. Therefore the court cannot deny it but can simply confirm the decision of plaintiff to dismiss the case. After the dismissal, the plaintiff changes his mind and wants to pursue the case against the defendant, so this can the court allow him to file for a dismissal? Yes, because it is still a matter of right as long as the defendant has not filed his answer. But after plaintiff has filed his notice of dismissal, he decided again to file his complaint in court and this time the court refused to accept his notice his dismissal and said that if you do that you file a motion to dismiss? Is the court correct? Yes, because after the 2nd notice of dismissal, the 2nd dismissal operates as an adjudication on the merits and so therefore you have to apply the two notice rule. So after the 2nd dismissal you have to file a motion to dismiss even if there is no responsive pleading yet because it is no longer a matter of right but a discretionary on the part of the court. But after the filing of a responsive pleading, you can no longer file a notice of dismissal but a motion to dismiss under Rule 16. Also instead of filing a motion to dismiss, you can probably file a motion to withdraw, or you can amend or supplement the complaint under Rule 10 but remember that amendment of the pleading is a matter of right before a responsive pleading has been filed. If there is a responsive pleading or answer you can no longer amend your complaint as a matter of right. You have to file a motion for leave of court even though there is an answer. Take note that amendment of a complaint as a matter of right can only be done once. Otherwise, even if there no responsive pleading yet, the second amendment is merely discretionary therefore you have to file a motion for leave of court to file to amend your pleading. If you want to add matters related to your allegations in the complaint you file for a supplemental pleading. The defendant will file an answer, so what will the plaintiff do, he can file for a motion to declare defendant in default under Sec 3 Rule 9 because under the Rules if you don’t file a responsive pleading within the reglamentary period you 12

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW can be declared in default. But the court cannot motu propio declare in default the defendant for failure to file his responsive pleading within 15 days. The Rules of Court require the plaintiff should file a motion which should be set in hearing. As a matter of fact, the plaintiff should show the proof of service to the defendant. If the defendant has been declared defendant in default, what is his remedy? Rule 9 Sec 3, he can file for a motion to lift or set aside the order of default and invoke the grounds of FAME. Also he has to attach an AFFIDAVIT OF MERIT which means he has to allege that he has meritorious defenses. Otherwise, without this affidavit of merit what is the effect? This is a jurisdictional requirement, will render the motion pro forma. Because he has to show the court that he has meritorious defenses in order for him to continue with the proceeding. A defendant although he loses his standing in court is entitled to notices. So you file a motion to set aside order of default. If you have been declared in default, you should not immediately file an order to lift or set aside order of default because when you file that particular motion, there is a need to file an affidavit of merit. Without this affidavit of merit, the motion will be deemed pro forma. If the motion is pro forma it is useless piece of paper with no force and effect. And the court is not given power or authority to take cognizance of pro forma motions. A pro forma motion is a motion which violates the provisions of the Rules of Court. So if you file a motion to set aside the order of default there should be an affidavit of merit. But if you file for a motion for reconsideration, there is no need for an affidavit of merit. So if you have been declared in default, do not immediately file for a motion to lift the order in default but instead FILE AN MOTION FOR RECONSIDERATION ON THE ORDER DECLARING YOU IN DEFAULT. Because when you file an MR you have a 15 days to do so and you have 2 days to pre-empt the order of default from becoming final. So when you file for a motion for reconsideration you are giving the court the opportunity to rectify its order. If not granted, then you can file for a motion to lift or set aside the order declaring you in default. If you will file an answer, you have to specifically deny the material allegations contained in the complaint otherwise it will be deemed as admitted. Sec 7 Rule 8 which refers to actionable document. If a complaint attaches an actionable document and alleges important portions of that actionable document, the defendant has the obligation not only to specifically deny the material allegations but he must also deny it under oath otherwise he is deemed to have admitted the genuiness and due execution of this actionable document . What are the kinds of defenses? Affirmative defense- presupposes that you hypothetically admit the allegation but you are presenting these affirmative defenses in order that you will not be held liable. You can invoke this affirmative defense in your answer and file a motion to set this for hearing. It

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW can require that a complaint can be amended and likewise the answer can be amended. Take note of the kinds of pleadings. Take note that if you’re going to answer and there is a compulsory counter-claim, you have to allege your compulsory otherwise it will be considered waived and barred. A compulsory counterclaim which has logical connection in the complaint filed against you by the plaintiff. When you talk about compulsory counterclaim it actually arose from the complaint filed by the plaintiff. Example of counterclaim: Because of the complaint filed against me I was constrained to secure the services of a counsel. Or because of the complaint filed against me I have suffering from mental anguish and sleepless nights and therefore Im asking for moral damages. Take note of another counter-claim, which is a Permissive Counterclaim- a permissive counterclaim is actually a separate and independent action. But nonetheless a permissive counterclaim is included in the answer. If you allege a permissive counterclaim in your answer, if it is an initiatory pleading, you are going to attach a certificate a non-forum shopping on your answer. Likewise, since a permissive counterclaim is a separate and independent action, the plaintiff has the obligation to file an answer. A permissive counter-claim is supposed to be a complaint by the defendant against the plaintiff. Since it is a separate and independent action, the defendant is expected to follow the rules on forum shopping and verification under the rules of court. The defendant now becomes the plaintiff and the latter the defendant. The plaintiff this time has the obligation to file an answer on the permissive counter-claim of the defendant. If the plaintiff fails to file an answer on the permissive counter-claim, the plaintiff may be declared in default. Likewise, since the permissive counter claim is a separate and independent action, the defendant should PAY DOCKET FEES for the court to acquire jurisdiction over the permissive counterclaim. Why am I emphasizing on this permissive counter-claim.. because it is always compulsory claim.. and it is ripe for bar question. When you talk about counter-claim, a third party complaint- is not a party to a complaint. A third party defendant is impleaded, is sued in order for defendant to ask for contribution, indemnification, subrogation. So if A borrowed money from B. But in truth it was not A who used the money, it was C, but C is not a party to the complaint so what will B do, he will implead C as third party defendant. Or B and C borrowed money from A, but in truth it was only C who used the money, so B can file for a cross claim against C. PARTY IN INTERVENTION- Ex. A and B are quarreling over the ownership of a parcel of land. A claims ownership over the land, B also claims ownership over the land. C enters the picture and files a complaint in intervention because in truth C is the owner of the land. 14

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Specific denialas a rule it allegations should be specifically denied otherwise they are deemed admitted. Exception Rule 9 Sec 1, except lack of jurisdiction, res judicata, etc. General denials are tantamount to admissions. Now lets say defendant has filed an answer, what should the plaintiff do? He can file for a motion for judgment on the pleading under Rule 34. If the answer fails to tender an issue, or there is an admission, the plaintiff can file for judgment based on the pleadings of the parties. Or he can file for a summary judgment such as when the defendant states in the answer that he admits the obligation except as to the amount of damages. In which case there is no genuine issue so therefore plaintiff can file for summary judgment. A MOTION TO EXPUNGE ANSWER- if there was an answer but it was filed beyond the reglamentary period of 15 days, the plaintiff can file motion to expunge the answer, or you can file an answer to a counter claim, if it is a permissive counter-claim, there is a need to file an answer otherwise, you can be declared in default. MODES OF DISCOVERY- can be availed by both plaintiff and defendant. What are Defendant’s remedies to various motions? If the plaintiff can amend his complaint, defendant can also amend or file his supplemental answer. He can also avail of the different modes of discovery. PRE-TRIAL – Assuming plaintiff filed a reply even though he is already aware that said reply dispensable because even if he did not file the reply all the matters alleged in the answer are already deemed controverted or denied by the plaintiff. He files a motion ex parte to set the case for pretrial. Who’s duty is it to set the case for pretrial? It is the duty of the plaintiff after the last pleading is filed. If the plaintiff does not file the same, what would be the effect. SC says that even if there is no motion to set the case for pre trial, the clerk court can still prepare a notice of the pre-trial proper wherein the parties can submit their pre-trial brief. If plaintiff does not file a motion to set case for pretrial, there is a jurisprudence that defendant can file for motion to dismiss under Sec 3 Rule 17, failure to prosecute a case for unreasonable length of time on the part of the plaintiff for failure to file a motion to set the case for pre-trial. If the case is dismissed on the ground of failure to prosecution, this is an adjudication on the merits and this is therefore a valid judgment and the remedy is to appeal the same. It is mandatory for the parties to prepare a pre-trial brief. If plaintiff fails to file a pre-trial brief, it has the effect as the failure of the plaintiff to appear during pre-trial. If the plaintiff fails to appear during pre-trial the case will be dismissed. On the other hand, if defendant is absent during pre-trial, the plaintiff will be allowed to present its evidence ex parte. 15

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Under the old rules, if plaintiff does not file a pre-trial brief he is considered as non-suited. If it is defendant who fails to file a pre-trial brief he is declared in default. The present rule is if it is the plaintiff, his failure to file a pre-trial brief or did not appear during pre-trial, the case will be dismissed. If it is the defendant who failed to file a pre-trial brief or did not appear during pre-trial, plaintiff will be allowed to present evidence ex parte. If plaintiff failed to file a pre-trial brief but was present during pre-trial, the case will still be dismissed because even though the plaintiff was present during pre-trial if he did not file pre-trial brief, it is as if he did not appear during pre-trial. The same is true in the case of the defendant. Assuming that the plaintiff has filed his pre-trial brief, the first thing that will happen is to set the case for pre-trial conference wherein the judge will ask the parties to settle the case. The judge will likewise ask the defendant if he is willing to settle the case and if the defendant answers that he is willing to do so but that he has no money yet, because of the mandatory character of the judicial dispute resolution, the judge will refer the parties to mediation proceeding within 30 days in order for the parties to explore the possibility of settlement. If the case is settled during the mediation, the parties are required to prepare a compromise agreement which should be submitted to the court for approval and this will become a judgment based on compromise. If no settlement is reached, the mediation conference is terminated and the case will be referred back to the court for the continuation of the pre-trial which means there is a pre-trial proper wherein the parties will enter into stipulation of facts, marking of exhibits, if there is a voluminous record to be marked, the parties can ask the court that they mark their exhibits before the branch clerk of court. In other words the judge can allow the pre-marking of exhibits. Take note that the marking of exhibits during pre-trial is important because there is a provision in the rules of court that no evidence can be appreciated by the judge in resolving a particular case unless that evidence has been 1) marked 2) presented 3) identified by the witness 4) offered and 5) admitted by the court. The court will be considered to have abused its discretion if he have appreciated or considered a piece of evidence which have not been formally offered or admitted by the court. All of these stages have to be complied with before the court can consider the evidence. At the end of pre-trial the court will issue a pre-trial order where it will state the admissions of the parties, stipulations entered into by the parties, marked exhibits during the pre-marking of exhibits, name of witness and number of hours that they require for their testimony. Objection can made on during pretrial if the document presented if the same has not been included in the premarking of exhibits.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW TRIAL: take note of the order of trial, as a rule it is the duty of the plaintiff to present evidence ahead of the defendant in civil cases. Likewise it is the duty of the prosecution to present evidence ahead of the defense in criminal case. Is there a situation wherein it is the defendant who presented evidence ahead of the plaintiff in civil cases or the defense in criminal case? Yes, although as a rule in civil cases, it is the plaintiff who shall present evidence first following the rule that he who alleges must prove, however be reminded of the rule in Sec 6 of Rule 16 which states that a party is invoking affirmative defenses in the answer. Where can affirmative defenses be alleged? 1) Motion to Dismiss – it is an omnibus motion because it attacks a pleading and if this omnibus motion rule, this means that all grounds available at the time of the filing of the motion can be alleged already otherwise it is deemed to have been waived. The grounds are 1)improper venue 2) statute of frauds 3) litis pendentia If there are other grounds but the party forget to raise the same, he is deemed to have waive the same and he can no longer invoke it in the answer. If a motion to dismiss is filed, the party is bound by the omnibus motion rule, hence if he forgets to include it in the motion, he can no longer invoke it in the answer. But an answer is a responsive pleading not a motion, necessarily it is not bound by the omnibus motion rule, hence even if the party forgot to include a ground in his answer, he can still file a motion to dismiss. If a party receives a summon, he is required to file an answer within a period of 15 days. Failure to do so, the party will be declared in default. A party is discouraged from filing a motion to dismiss and instead include the grounds in his answer by way of affirmative defenses. If no motion to dismiss is filed and instead filed an answer where affirmative defenses were alleged, under Rule 16, the party can file a motion to set the case for hearing on the affirmative defenses. If that court grants that motion to set the case hearing on the affirmative defenses, the effect is the defendant is able to present evidence ahead the plaintiff in the affirmative defenses. In criminal cases, if the accused during arraignment enters a plea of guilty, or invokes self-defense, the accused will be allowed to present evidence ahead of the prosecution. ORDER OF EXAMINATION OF WITNESS: First, the witness shall be presented for direct examination, the purpose of which is to prove the allegation contained in the complaint. After direct examination, the witness will undergo cross examination by the opposing counsel, the purpose of which is to test the credibility of the witness, to dispute the fact. After the cross examination, the counsel for the plaintiff is given the opportunity to conduct his re-direct examination, the purpose of which is to give the witness the chance to explain his answer during the cross examination. After that, the opposing counsel will conduct his re-cross examination. After the presentation of the evidence in chief, the plaintiff is required to file a formal 17

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW offer of evidence. Plaintiff will formally offer his exhibits after he has offered his evidence in chief. What is evidence in chief? It is the entire body of evidence which includes, object, documentary and testimonial evidence. When are object evidence offered? It is offered after presentation of evidence in chief. Testimony of witness is offered at the time the witness is called to testify. After the formal offer of exhibits by the plaintiff, the defendant are given the opportunity to oppose the exhibits being presented by the plaintiff. Thereafter the court issues an order admitting or denying the exhibits offered and thereafter, plaintiff rests his case. After the plaintiff has rested his case, the defendant has two remedies either 1) he presents his own evidence his chief or 2) he files a demurrer to evidence such as when plaintiff submits insufficient evidence. A demurrer in evidence in civil case can backfire on the part of the plaintiff. If a demurrer in evidence is granted, the case is dismissed. If denied, the defendant is allowed to present his evidence in chief. If the demurrer to evidence is granted and the court grants it, the case will be dismissed, hence, plaintiff can file an appeal and if on appeal the case is reversed by the appellate court, the defendant is deemed to have waived his right to present his evidence in chief. In criminal cases, demurrer to evidence is stricter compared to civil cases. In criminal case, there is a requirement for leave of court, which is not required in civil cases. If no leave of court is granted, if the demurrer to evidence is denied, the party is deemed to have waived his right to present his evidence. Also, in criminal cases, there is a period to file a motion for leave of court of 5 days which is mandatory and nonextendible and 10 days period to file a demurrer to evidence. There are no periods in civil cases. Demurrer to evidence in civil cases, the effect is dismissal, in criminal cases, double jeopardy sets in, in the same manner where there is violation on the rule of speedy trial. In the presentation of evidence by defendant, the same procedure will apply, he presents his own evidence in chief, and thereafter he files his formal offer of exhibits which can be objected to by the plaintiff and thereafter the court issues an order either admitting or denying the exhibits offered by the defendant, after which defendant can rest his case. Note that after defendant has rested his case, plaintiff is not allowed to file a demurrer to evidence, because demurrer to evidence is filed by the defendant after the plaintiff has rested his case. If there is a 3rd, 4th and 5th party complaint, the defendant will also present his evidence. After the defendant has presented his evidence, the 3rd, 4th and 5th party defendant will also present their evidence. The same rules with the presentation of evidence in chief by the plaintiff and defendant. After the 3rd, 4th 5th defendant rest his case, there is rebuttal evidence by plaintiff but this is optional. The defendant will be given the opportunity to submit sur-rebuttal 18

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW evidence pursuant to the due process of law. The court will later direct the parties to file their memorandum. This memorandum is a summary of the entire causes of action on the part of the plaintiff to establish his case or summary of defenses as the case maybe. This memorandum is a guide to the court in rendering a judgment. However, a memorandum is not an indispensable pleading. A reply to the memorandum can also be filed. After the filing of the memorandum, the case is submitted for resolution and the court will now issue of a judgment which must conform to the requirements of 1987 Constitution which means it must be in writing, and will state distinctly the facts and law which is the basis of the judgment. A judgment can only be valid if the court which issued the judgment has acquired jurisdiction over the subject matter, issues and parties. A judgment rendered by the court which has not acquired jurisdiction over the subject matter of the case, issues or parties is a void judgment and it will not bind the parties because of an error of jurisdiction. On the other hand, if the court has acquired jurisdiction but renders only an erroneous judgment, the judgment is still valid. No matter how erroneous or incorrect the position taken by the judgment if the court has jurisdiction that erroneous judgment is a valid judgment if there is no appeal taken. An erroneous judgment can be subject to an appeal but an error of jurisdiction is not subject of appeal but a certiorari alleging grave abuse of discretion amount to lack of jurisdiction. Jurisdiction over subject matter is conferred by law and can be determined by the allegations contained in the complaint. the allegations of the defendant in his answer has nothing to do with the determination of the jurisdiction. Jurisdiction over the subject matter is conferred by law but it can raised even for the first time on appeal. Lack of jurisdiction over subject matter is not waived even if not included in the motion to dismiss. This is an exception to the omnibus motion rule because it can be raised for the first time on appeal. Except when a party is bound by the DOCTRINE OF EQUITABLE ESTOPPEL as in the case of Tijam vs. Depomano, which tells us the although jurisdiction is conferred by law, a party is bound by the doctrine of equitable estoppels to question the jurisdiction of the court. He cannot raise the issue of jurisdiction only after an adverse judgment was rendered against him. Jurisdiction over the person of the plaintiff is acquired immediately upon the filing of the complaint and payment of the docket fees. On the other hand jurisdiction over the person of the defendant is acquired by 1) voluntary appearance 2) service of summons either personal summons or tendering of summon in cases defendant refuse to accept it; or summons by substituted service. Substituted service of summons is done if defendant cannot be served personally within a reasonable time or there is impossibility of prompt service. This is done by serving the summons to a person of sufficient age and discretion who resides at the defendant’s place of residence or at the office by 19

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW the serving the summons on the person incharge of the office who must be of sufficient age and discretion. In the case of Gentle Supreme Phils Inc. vs. Ricardo Consulta, if the substituted service of summons is applied, SC clarified that the person who receives the summons for and in behalf of the defendant need not be specifically authorized by the defendant to receive the summons. In other words it is enough that he appears to be in charge of the office. Exception to the substituted service of summon as decided in the case of Remelita Robinson vs. Celita Miralles (2006) wherein the summons is served on a security guard of the subdivision where the defendant resides. As a general rule, Sec 7 Rule 14 specifically provides that substituted service of summons is served on the person of sufficient age and discretion residing in the place where the defendant resides. In the give case, if the impossibility of service of summon was caused by the defendant himself, the service of summons to the security guard is valid as a matter of exception. JURISDICTION OVER THE ISSUES: is determined by the issues raised by the parties in the pleadings.(complaint, answer, reply and pre-trial order) If there is evidence presented which is not related to the issue of the case, that evidence is immaterial. Immateriality of evidence refers to the pleading. Jurisdiction over the res, refer to the party in the case. If there is already a judgment, can you execute the judgment? Not yet, avail of the post judgment remedies. If before finality of the judgment, the party can either file for a motion for reconsideration, Motion for New Trial or Appeal (42 or 45). If it is a MOTION FOR RECONSIDERATION, take note of the grounds which are (1) damage is excessive 2) evidence is insufficient 3) decision is against established law or jurisprudence. If the grounds for motion for reconsideration is not among those grounds, the MR is pro forma therefore it will toll the running of the period of appeal. The MR is covered by the omnibus motion rule which means if the grounds are not alleged, it is deemed waived. An MR should comply with the requirements of a motion which are (1) it should be in writing (2) set for hearing(3) comply with the 3 day and 10 day notice rule. Non-compliance will render the motion proforma and therefore the judgment will become final and executory. Motion for New Trial invoke Rule 37; it should be filed within a period to file an appeal. If the MNT is denied, don’t talk about the balance of period. If the MR/MNT is denied, under the NEYPES DOCTRINE, the party has a fresh period of 15 days to file an appeal. Before 2005, if the MR is denied, the party has only the remaining period unless than 5 days to file an appeal. But under the Neypes rule, the party has a fresh period of 15 days within which to file an appeal. In the case of Sumiran vs, Damaso, the SC stated that the

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Neypes ruling is given retroactive effect and applied even to actions pending as in 2005. The 15 day period to file an MR is mandatory. If an MR is filed after the lapse of the 15 day period, that MR is pro-forma. No motion for extension of time can be filed for the filing of an MR, applying the Jabaluyas doctrine (Jabaluya vs. CA) The fresh period rule applies to Rules 40, 41, 42, 43 and 45. If an appeal if filed for the decision of the MTC to the RTC, you invoke Rule 40. If it’s the decision of RTC (original) appeal to CA apply Rule 41. If it involves the appellate jurisdiction of the RTC over the decision of MTC, file a petition for review under Rule 42 with the CA. If appeal a decision of a quasi judicial agencies, invoke Rule 42. Remove CTA in Rule 42. If it’s a decision of MTC, and is elevated to RTC, a notice of appeal should be filed within a period of 15 days with the court that rendered the decision. In case of Forcible Entry/ Unlawful Detainer, the decision of the MTC can be a subject of a Motion for execution pending appeal. It can be executed only if there is no supersedeas bond, or no appeal, or no payment of accrued rentals on the part of the defendant. If a notice of appeal is filed with the MTC and before the records of the case has not been elevated yet, the MTC can issue an order to protect the rights of the parties, applying the DOCTRINE OF RESIDUAL JURISDICTION of the court, including the granting of Motion for Execution Pending appeal. But if the records has already been elevated by the MTC to the RTC do not apply the residual jurisdiction of the court. However, a motion for execution pending appeal can still be executed not by MTC but by the RTC. After the exhaustion of the MR, MNT or after the finality of the decision after the lapse of the 15 days, avail of Rule 38, on Petition for Relief alleging FAME which should be filed within 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside and not more than 6 months after such judgment or final order was entered. It should be filed with the same which issued the judgment. ANNULMENT OF JUDGMENT : grounds (1) lack of jurisdiction and (2) extrinsic fraud) . When the ground is extrinsic fraud, the party has 4 yrs to file the petition but if is lack of jurisdiction, the party can file it anytime. If the two remedies have been exhausted, the party may file for a petition for certiorari, invoking judicial power.The framers of the Constitution has expanded the definition of judicial review and it now covers the power of the court to determine whether there is grave abuse of jurisdiction amount to lack or excess of jurisdiction to any branch or the agency of the govt. A petition for 21

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW certiorari requires the prior filing of a Motion for Reconsideration. It is a condition sine qua non. A petition for certiorari cannot be a substitute for a lost appeal. There must be no plain, speedy or adequate remedy available at law. The filing of a petition for certiorari will not stop the proceeding of the court a quo. The presiding judge may stay the hearing of the case for only 10 days, unless a TRO or writ of injunction has been issued against the respondent judge from further proceeding with the case. After the filing of petition, the judgment can now be executed. It is not the SC that will execute the judgment but the court of origin. The granting of a writ of execution does not mean immediate execution. The prevailing party must file a motion for issuance of the writ of execution. The motion for issuance of a writ of execution is litigious motion and therefore will be set for hearing and the other party will be given the opportunity to oppose as part of due process. The writ of execution must conform to the judgment. The writ of execution will only copy the dispositive portion of the decision. The writ of execution is directed to the sheriff and not to the parties such that the party will not comply with the terms of the execution they cannot be held in contempt. Take note however that if the writ of execution, the sheriff should give a notice to vacate the premises if the defendant does not vacate, the sheriff can now enter the premises to execute the writ. Upon execution of the writ, the sheriff will now issue a sheriff’s return. CIVIL PROCEDURE PROPER: Substantive law- what are our rights? Substantive law it creates defines and regulates the rights and obligations. The basis of remedial law Remedial Law it refers to the enforcement of our rights and obligations. It refers to matter on how to enforce substantive law. Rule Making Power of the SC: not in violation of the separation of power as the Constitution specifically grants the power to the SC to promulgate its own rules. Under the 1973 and 1935 Constitution, the power to promulgate the Rules of Court is a shared power between Congress and the Supreme Court. During this time, a particular provision of the rules of court can be modified or amended by Congress. It therefore caused confusion. Thus in the case of Leo Echegaray vs. CA and GSIS vs Heirs of Caballero, the Supreme Court has the opportunity to clarify that the power to promulgate rules is no longer a shared power between Congress and the Supreme Court but rather SOLELY belongs to the SC.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Pursuant to this sole power to promulgate the rules, the SC also has the power to relax or suspend its rules. This power to relax or suspend the rules can only be done in exceptionally meritorious cases. LIBERAL CONSTRUCTION OF THE RULES: in order to promote their objective of ensuring the just, speedy and inexpensive disposition of every action and proceeding. Philippine courts are courts of law and equity. Which means that we do not apply equity when there is a law or jurisprudence applicable. In other words we only apply equity not as a matter of replacement of the law but only in the absence of a law. Under Art of the Civil Code, no judge will render a judgment by reason of absence, obscurity or insufficiency of the law. Even if there is no law or jurisprudence applicable, equity will be applied. Remedial Law are prospective in character which means procedural laws are applicable prospectively. Can it be applied retroactively? Yes, in instances when the cases are pending at the issuance of the rule by the Supreme Court. Sumiran vs. Damaso case: application of the fresh period rule is applicable retroactively. (already discussed above) JUDICIAL POWER: includes the duty of the judicial courts to settle actual case or controversy involving rights which are demandable and enforceable. After the 1987 Constitution, this power has been expanded the concept of judicial review, include the power of the court to determine whether there is grave abuse of discretion amounting to lack or excess of jurisdiction in any branch or instrumentality of the govt (explained above) We refer to the principle of the filing of petition for certiorari, the principle of checks and balances and principle of separation of powers. Application of the Rules of Court: What the exceptions in the application of the rules of court? The Rules of Court shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings and other cases not herein provided for except by analogy or in a suppletory character and whenever practicable and convenient. When can you apply the rules of court in suppletory? When there is an insufficiency in the applicable rule. (GSIS vs. Dinnah Villaviza) Rules of court do not apply in administrative bodies and quasi judicial bodies such as in the case of PAL Vs. PALEA, where the Supreme Court said the rigid application of the rules do not apply in administrative and quasi-judicial bodies.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW JURISDICTION: involves the power to try, hear and decide a case. In the case of Leo Echegaray case, the definition of jurisdiction has been expanded, which now includes not only the power to try, hear and decide the case but also the power to execute its judgment until the final disposition of the case and full service of sentence in criminal cases. In this case, the Supreme court declared that a person who has been convicted by final and executory judgment still possess collateral rights and these rights can invoke in the court of justice for the reason that the power of the legislative, judiciary and executive in saving the life of the accused do not exclude each other because there is no higher right than the right to life. So that even if the decision has become final and executory, the court can still issue a TRO. In one case, a guy was accused of rape, later on the guy and the rape victim fell in love that even while serving his sentence, the two of them continued on seeing each other and eventually got married. The accused in the said case filed a motion to be released from incarceration following his marriage to the rape victim. This was questioned by the court, alleging that the case has become final and executory and in fact the accused was already serving his sentence and therefore the court has no jurisdiction anymore. Applying the principle laid down in Leo Echegaray, the accused claimed that jurisdiction does not cover only the power of the court to try, hear and decide the case but also the power to execute its judgment until the final disposition of the case and FULL service of sentence. And since the accused has not fully served his sentence, the SC released the accused because his liability has been extinguished by reason of his marriage to the rape victim. DISTINCTION OF JURISDICTION AND VENUE: Jurisdiction is the power of the court to try, hear and decide a case until the final disposition and full service of sentence. Venue is simple the geographical where the action is to be instituted. If we talk about jurisdiction, it cannot be waived because it is conferred by law. On the other hand venue can be waived because has been formed for the convenience of the parties. Venue can be stipulated. Under Rule 4, there is a provision on the stipulation of venue. Exception: if there is a law that provides otherwise or there is a stipulation on venue. For the stipulations on venue to be valid, it must reduced in writing, made before filing of the case, and the stipulation is mandatory or exclusive in character. On the other hand, jurisdiction cannot be stipulated because is conferred by law. Venue is procedural in character while jurisdiction is substantive in character. But take not that it is only the jurisdiction over the subject matter that is substantive in character because it is conferred only by law. Jurisdiction over the issues, parties and the res are all procedural in character. 24

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW The court cannot motu propio dismiss the case on the ground of improper venue. But the court can motu propio dismiss the case on the ground of lack of jurisdiction. Exception: the court can nonetheless dismiss the case on the ground of improper venue if the case falls under summary procedure because the court can dismiss the case on any ground available including improper venue. Jurisdiction refers to the relationship of the courts and the subject matter of the case. On the hand, venue refers to the relationship of the parties. One important matter is the distinction between error of jurisdiction and error of venue. An error of jurisdiction affects the validity of the proceedings but an error of venue does not affect the validity of the proceedings. In error of jurisdiction, if the court has no jurisdiction over the subject matter of the case, no matter how right or correct the decision is, that decision is void ab initio but if there is only an error of venue, it does not affect the validity of the proceedings because the court has jurisdiction thus no matter how improper the judgment as long as the court that issued the judgment has jurisdiction and the question on venue has been waived, the decision and proceeding is valid. ERROR OF JUDGMENT AND ERROR OF JURISDICTION: If there is only error of judgment, it is still valid, if it is error of jurisdiction, the judgment is null and void. If there is error of judgment, and if there is no motion for reconsideration, no appeal and it has become final and executory then it becomes valid but if it’s an error of jurisdiction, no matter how the correct the judgment is, or how correct the appreciation of the evidence, that judgment is null and void. An error of jurisdiction is correctible by a petition for certiorari alleging grave abuse of discretion, but an error of judgment is not correctible by certiorari but by an appeal, motion for reconsideration or motion for new trial. RELEVANT DOCTRINES REGARDING JURISDICTION PRINCIPLE OF JUDICIAL HIERARCHY: Ex. Petition for Certiorari or Mandamus- Under Rule 65, a petition certiorari, mandamus and prohibition, original jurisdiction with RTC, CA and SC. A decision of an MTC can be a subject of a certiorari filed with the RTC. A decision of the RTC can be subject of certiorari filed with the CA and the decision of the CA can be a subject of certiorari under Rule 65 filed with the SC. In other words, the principle of judicial hierarchy should be complied. This principle presupposes to preserve the principle of hierarchy of courts thus if it is the decision of the MTC it cannot be brought to the CA or SC. EXCEPTIONS: 1. Creba vs. Regulatory Commission: the principle of hierarchy of courts can be disregarded for exceptional and compelling reasons. 2) Miaque vs. Patag the SC stated, the petition for certiorari can be brought directly to the SC in cases of pure question of law; and 3) if the issue involve of transcendental or 25

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW public interest, the principle of hierarchy of courts can be disregarded and be brought directly to the SC. DOCTRINE OF PRIMARY JURISDICTION: it precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. Thus, in agrarian reform cases, jurisdiction is vested with DARAB, thus parties should not go to court. DOCTRINE OF JUDICIAL STABILITY OR DOCTRINE OF NON- JUDICIAL INTERFERENCE: No court of equal grade can interfere or enjoin the orders issued by another court of the same level. An RTC cannot enjoin the order issued by another RTC. The SEC cannot issued an order reversing the order of RTC. The CA cannot intervene with the decision of the CTA. The latter has the same level of the CA. EXCEPTION: Santos vs. Baylon; Decision rendered by NLRC in favor of the employees. Pursuant to the finality of the decision rendered by the NLRC, the property of another person not a party to the action was levied by the sheriff to satisfy the judgment in favor of the employee and this was scheduled by auction. The person in the case objected filed a third party claim( terceria) alleging that the property cannot be levied because it is under his name. Rule 39, requires filing affidavit with the sheriff and state your ownership and the sheriff has no choice but to release the property unless the person who levied on the property post a bond. In this case, the sheriff did not comply with Rule 39, the third person went to RTC to file an action to recover a property seek for the issuance of a TRO. The RTC granted the petition and issued a TRO. SC said that the doctrine of judicial stability should be applied. But the SC as a matter of exception, it will sustain the ruling of the RTC because the third person is not a party to the case because it would at the height of injustice, if the property of the person who is not a party to the case will be levied upon in an auction. KINDS OF JURISDICTION: A judgment rendered by the court is valid only if it has jurisdiction over the party, issues, subject matter and over the res. JURISDICTION OVER THE PLAINTIFF: From the filing of the complaint and payment of the required docket fees. (refer to discussion above) Summons: how is it served? By handling it personally to the defendant or tendering the same to the defendant. The defendant should be asked to sign and the sheriff will prepare the sheriff’s return. (see discussion above) . If for instance the house is subject of a lease contract with another person residing in that house where the summon is to be served. That summon is not valid because the house is no longer the residence of the defendant but a subject of a lease contract.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW JURISDICTION OVER ISSUES: is determined by the issues raised in the pleadings filed. If an evidence is raised which is not contained in the pleading, is it valid? No, it is immaterial. Even though it is not among the issues to be resolved or raised in the pleading, the court can still rule on the same. If for instance, plaintiff failed to allege in the pleading, if during trial plaintiff tried to alleged it and the defendant did not object, the court can consider it by Rule 10 Sec 5 known as amendment to conform with evidence presented. If there was no objection on the part of defendant, the court can consider the evidence and even admitted by the court even though no amendment to conform with the evidence has been made, because it has not been objected upon by the defendant. In effect, there will be an implied amendment of the complaint. RULES ON EVIDENCE: No evidence can be appreciated or considered by the trial judge in resolving a case unless such evidence has been marked during the pre-marking, presented during the trial, identified or authenticated by a witness, formally offered as exhibit, and admitted by the court. JURISDICTION OVER THE RES: it is jurisdiction over the property and is relevant in in-rem and quasi in-rem cases. Basis: Sec 15 Rule 14. Extraterritorial service of summons. Jurisdiction over the defendant is not needed, only jurisdiction over the res. How is it acquired? Jessie Lucas vs. Jesus Lucas (June 6 2011); Jurisdiction is acquired by 1) seizure of the property under legal process 2) as a result of an institution of a legal proceeding in which the power of the court is recognized and deemed effective. JURISDICTION OVER THE SUBJECT MATTER: conferred by law and determined by the allegation in the complaint. (refer to above discussion) Cannot be subject of stipulation and cannot be waived. Parties cannot agree among themselves that jurisdiction be in Manila although venue can be waived. Ex. Phil Int’ Corp vs. CA In a contract of sale for delivery of goods, there is a stipulation that in the event of litigation all cases shall be instituted in the RTC of Singapore. Subsequently, a case was filed in the RTC here, the Singapore Corp argued that on the basis of the stipulation in the contract, the action should be brought in the RTC of Singapore. SC speaking through Justice Sandoval-Gutierrez, said that jurisdiction over the subject matter is conferred by law. It cannot be a subject of agreement. The stipulation that the case should be filed in the RTC of Singapore is invalid. But can a stipulation be made that in case of litigation, the case can be filed only in the RTC of a specific place? Yes, if it is a stipulation on venue. Two kinds of stipulation of venue: 1) permissive stipulation 2) mandatory stipulation on venue. What is the effect? This means that the venue should only be the place agreed in the contract because it is mandatory and exclusive. However, if it is permissive, the effect is the venue stipulated in the contract should be added on the venue stated in Rule 4. If it is a personal action, look at the 27

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW residence of the parties. In a case of breach of contract, if there is a stipulation on the venue, file it in the place of the plaintiff or place of the defendant at the option of the plaintiff and include the venue stipulated as possible option for venue. It cannot be conferred by waiver, acquiescence, agreement by the parties. Let us say in the case between neighbors where one encroaches on the property of the party. But they live in a remote place in Mindanao but a few minutes away from the RTC and 5 hours away from the MTC. They entered into an notarized agreement that in case of litigation, they will file the case only in RTC. Is it valid? NO, simply because jurisdiction is conferred by law, it cannot be a subject of waiver or agreement by the parties? What if for the last 30 years it has been the habit of the RTC to take cognizance of ejectment suit without objection from anyone. Will this fact validate the proceedings? NO, jurisdiction cannot be acquired by the habitual exercise of the court of jurisdiction. No matter how correct the decision of the RTC or appreciation of the evidence presented by the parties of the judge of RTC, that decision is invalid because of the absence of jurisdiction by the RTC. When do you object as to jurisdiction over the subject matter?: First, file a motion to dismiss under Rule 16; If a motion to dismiss is filed, the party is bound by the Omnibus Motion Rule, thus, all grounds at the time of the filing of the motion should be included in the motion otherwise it will be deemed waived.(Rule 9 Sec 1) Exceptions to the Omnibus Motion Rule: 1) Lack of jurisdiction over subject matter 2) litis pendencia 3) res judicata 4) prescription Example: collection of sum of money for 500k filed with RTC? What are the grounds for motion to dismiss? 1.) improper venue 2) lack of jurisdiction 3) statute of frauds 4) litis pendencia When the motion to dismiss was filed only statute of fraud and litis pendencia was alleged. Lack of jurisdiction and improper venue was not alleged therefore they are deemed waived. If a motion to dismiss is filed can an answer still be file? When can improper venue be invoked? Two ways: File an answer with affirmative defenses under Sec 6 Rule 16. If a motion to dismiss has not been filed, these grounds can be alleged in the answer. But since a motion to dismiss was filed the Omnibus Motion Rule applies because a motion to Dismiss is an Omnibus Motion which attacks the pleading, it attacks the complaint by having it dismissed. As such, all grounds should be included in the Motion to dismiss whatever ground that was not included in the Motion to Dismiss is deemed waived. Thus, in the Answer, only the ground of lack of jurisdiction over the subject matter can be alleged in the Answer. In the MTD the ground of lack ground of jurisdiction was not alleged and in the Answer, it was not likewise alleged this can still be raised for the first time on appeal. Why? Because precisely the court has no jurisdiction over the 28

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW subject matter and as such cannot take cognizance over the case even though there is already a ruling in the lower court. But this is subject to the ruling in the mother of all cases Tijam vs. Sibonghanoy where the SC laid down the DOCTRINE OF EQUITABLE ESTOPPEL to question the jurisdiction of the court. But this doctrine of Equitable Estoppel is not a general rule. It does not mean that when the case has reached CA or SC, that this doctrine can be invoked. If the party has embraced the jurisdiction of the court, by participating in the proceeding, filed your pleading and subsequent lost in the case such as in the case of Tijam where the case has been pending for 14 yrs, the losing party can no longer question the jurisdiction of the court because the decision was adverse to his interest. But if the ground is improper venue and is not alleged in the MTD and also in the Answer it is deemed waived. Soliven vs. CA: Collection of Sum of money for 1M inclusive of damages. He lost in the case and went to CA questioning the jurisdiction of the Court. The doctrine of Equitable Estoppel was again invoked by the CA. Jurisdiction over the subject matter is conferred by law but determined by the allegation in the complaint. Jurisdiction for sum of money MM – 400K and below – MTC 401k and above - RTC Outside MM- 300k and below- MTC 301k and above- RTC Rules on Summary Procedure MM – 200k Outside MM – 100k Small Claims – not exceeding 100 k Real Property MM – 20k to 50k RTC assessed value Below 20k MTC Basis: Assessed value not the FMV or Zonal Value Ex. Collection of sum of money for 1M against Dean Espejo before RTC . Dean Espejo filed an answer admitting the allegation but claims that what he owed the plaintiff is only 300k and contested the jurisdiction of the court in his Affirmative Defense. The court dismissed the case. Was the court correct? No. The court will hypothetically admit the allegations in the complaint, take cognizance of the case and rule on the matter. Will the court grant the 1M? No

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW the court will only give 300k to the plaintiff even if its not within its jurisdiction. EXCEPTION: that the allegation in the answer of the defendant maybe made the basis of jurisdiction of the court. Yes, Morin vs. Saldivar July 23, 2008 in cases involving tenancy relationship which is under the jurisdiction of DARAB, the court can dismiss the case for lack of jurisdiction but not motu propio. The court has the duty to hear the case, and there must be proof on such allegation. DOCKET FEES: Manchester Ruling: The principle is no docket fees no jurisdiction. Payment of full amount of docket fees is mandatory and jurisdictional.(see discussion above) Later in the Ayala Corp case invoke the Manchester ruling but in Sun Insurance Corp vs. Judge Asuncion, applied the liberal construction principle and relaxed the rule on payment of the docket fees. The court can take cognizance of the case even though there was no complete payment of the docket fees as long as it is paid within the prescriptive period of the action. What is the effect of insufficiency in the payment of docket fees? In the case of Nathaniel vs. Shalim, the court acquired jurisdiction because it was not the fault of the plaintiff but rather it was due to the error on the part of the clerk of court in computing the required docket fee, however, the court will require the plaintiff to pay the balance of the docket fees within the prescriptive period of the action. How is the jurisdictional amount determined? By determining the principal amount of the obligation. This means that the damages, interest, attorney fees, litigation expenses and cost of suit will be excluded in the computation of the docket fees. Exampled 300k promissory note, 60k attorneys fees, 20k litigation expenses, damages 100k. Collection of sum of money in MM= MTC has jurisdiction. When can damages be included? : Irene Sante vs. Claravall Feb 22, 2010: the exclusion of the term of damages of whatever kind in determining the jurisdiction amount applies to cases where damages are merely incidental to or consequence of the main action. Ex. Specific performance and damages- exclude the damages in the determining jurisdictional amount But if the main action is damages, include it in determining the jurisdictional amount and apply the TOTALITY RULE. If there is joinder of causes of action: A vs B

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Promissory note:100k, unpaid obligation 100k; house 100k; hospitalization 150k = compute all and apply the totality rule. Joinder of causes of action against one B C D E vs. A or A or BCDE = multiple parties Unpaid obligation, 100, renovation 100, hospitalization 100k = each of these can be filed separately because there is no common question of law or fact. Therefore this cannot be join the cause of action But if it’s a one on one situation, the rules on proper joinder of parties do not APPLY. Can a party join causes of action against several defendant In order for a joinder of causes of action to be done, there must be compliance with proper joinder of parties. Sec 6 Rule 3: Grounds: 1) it must arise out of the same transaction or series of transactions whether jointly or severally or in the alternative. Note: if there is only a one on one situation, even if the cause of action did not arise from the same transaction or series of transaction it is OK. BUT if there are 2 or more parties involve A vs. BCDE- follow the rules on joinder of parties which means, it must have common question of law or fact, it must arise from the same transaction or series of transaction. If it is a real action how is the jurisdictional amount determined? If more than one year from receipt of demand to vacate, in unlawful detainer case, the action to be filed is accional publiciana before MTC (old rule RTC) based on the assessed value pursuant to the expanded jurisdiction of the MTC RA 7671 If it is in MM 51k and above RTC , 50k and below MTC; outside MM, 21k and above RTC, 20k and below MTC. Even though it is ACCION PUBLICIANA LOOK AT THE ASSESSED VALUE OF THE PROPERTY. Actions incapable of pecuniary estimation is filed with RTC. What if the action is a specific performance for the execution of deed of sale. Obligation is 1M with partial payment of 500k and the balance payable on Dec 2011. Mr. A died leaving A-1 a daughter. Can an action be filed against A-1 for purposes of executing a Deed of Sale? Yes. Where should the case be filed? As a rule, undisputably, an action incapable of pecuniary estimation falls under the jurisdiction of RTC. An action for specific performance is an action indeed incapable of pecuniary estimation and so therefore it should be filed with RTC. However, if the primordial consideration of filing of action for specific performance is to compel the defendant to deliver ownership to the other party over a particular real property that action is no longer an action incapable of pecuniary estimation but it should be considered as a real action. 31

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW When can you say that an action is a real action. An action is a real action if 1) the subject property involved is a real property 2) the subject matter involved is title, possession, ownership, foreclosure, partition, interest over the real property. If it is a real action, look at the assessed value (based on tax declaration) of the property to determine which court has jurisdiction over the case. Thus, even if the action is for specific performance it is already considered a real action if the purpose is to ask the defendant to give ownership to the other party over the property. In Gochan vs Gochan, Emergency Pawnshop Inc. vs. CA, Home Guaranty vs. Arco Builders, even though that even though the case is for specific performance incapable of pecuniary estimation if the purpose is to actually to compel the person to deliver ownership to the party that action is no longer an action incapable of pecuniary estimation but is an real action in which case jurisdiction DEPENDS ON THE ASSESSED VALUE OF THE PROPERTY. The same is true if the action is for rescission of contract or annulment of sale, if the purpose there is to reconvey or deliver back the property to the plaintiff . In annulment of sale or rescission of contract these are actions incapable of pecuniary estimation but since it involves delivery of ownership, it is now a real action. Situation: Plaintiff filed a case for 1M before MTC, defendant move for the dismissal of the case which was granted by MTC and ordered for the forwarding of the record of the case to the RTC. Is the action of MTC correct? NO. While the MTC correctly dismissed the case on the ground that it has no jurisdiction over the subject matter of the case, take note that if there is an MTD filed by the defendant, the court can only 1) dismiss the complaint 2) deny the motion to dismiss 3) order the amendment of the pleading. The court has no power to grant the MTD and order the records of the case be forwarded to the RTC It would be a grave abuse of discretion. MTC has jurisdiction over ejectment case. But can it resolve issues of ownership? Yes but the resolution of the MTC in ejectment as to the issue of ownership is only provisional in character which means res judicata is not applicable. The issue of ownership is resolve only for purposes of determining the issue of possession but the decision of the MTC as to the issue of ownership cannot be used in another court or case because the decision on the issue of ownership is only incidental or provisional. 2008 bar question: Plaintiff filed an action before MTC pasay for recovery of physical possession of property. The value of which is P40k, damages P500k. Defendant filed MTD claiming that MTC has no jurisdiction over the case on the basis of the claim is P540k which is beyond the jurisdiction of MTC. The court granted the MTD. Is it correct? No. the MTC has jurisdiction over the 32

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW action because the amount involved is P40k Metro Manila. The claim for damages is only incidental to the main action. 2010 bar question: Collection of sum of money; Admiralty case; the case was filed with MTC, Defendant filed MTD stating that jurisdiction over maritime claim cases falls within the jurisdiction of RTC. MTD was granted. Is the ruling of the court correct? NO. MTC has jurisdiction over Admiralty and Maritime cases. Delegated jurisdiction of MTC: land registration case if the amount involved FMV does not exceed P100k or there is no opposition. Special jurisdiction of MTC: Habeas Corpus, when all judges in the RTC in the province are absent, MTC can take cognizance over petition HB. Can MTC take cognizance over special proceedings. Generally it falls under RTC. Exceptions: 1) HB 2) land registration 3) probate cases where the gross value involved is 400k and below in MM, and if 300k and below outside MM. What are the matters where appeal may not be taken from? Rule 41 Sec 4 Rule 50: Dismissal of Appeal As a rule if case is dismissed, the case can be refilled. What are the exceptions that the re-filing of the case be allowed? Rule 16: 1) lack of jurisdiction 2) improper venue Distinguish the difference between failure to state a cause of action and Lack of cause of action: based on evidence presented by plaintiff, there is insufficiency REAL PARTY OF INTEREST: in a contract of sale, it is seller and buyer, in mortgage it is the mortgagor and mortagee INDISPENSABLE PARTY- that party must be joined otherwise the case cannot go on. Necessary party- only if complete relief is to be had Co-debtor is not a indispensable party but only a necessary party. CLASS SUIT: that interest must not be specifically identifiable otherwise there is no class suit. Musi vs. CA: DEATH OF DEFENDANT: If a case is filed by A against B and during pendency of the case, B died. What will happen to the case. If defendant dies during pendency of the case the first thing that will happen is the client-lawyer relationship will be terminated because it is a contract of agency. In a contract of agency, the death of one of the parties will dissolve the contract of 33

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW agency. However despite the rule that the counsel can no longer represent the party, because there is no longer an attorney-client relationship, under Rule 3 Sec 16, where the claim subsist, it shall be the duty of his counsel to inform the court within 30 days the fact of the death of his client or defendant, likewise the heirs, or executors be appointed as substitutes of the defendant. After the lawyer has informed the court, the court will ask whether the action survives. Annulment, legal separation does not survive. But action for collection sum of money, ejectment case survives the death of the defendant. The court will issue order of substitution upon receipt of surviving heirs will automatic give the court jurisdiction over the substitutes. No need for the court to issue summons anew because the Rules of Court and jurisprudence dictates, the order of substitution is sufficient to vest jurisdiction over the person of substitutes. it should be an order of substitution and not an order granting substitution. If the plaintiff wins the case it will go after the estate of the defendant. RULE ON FOREIGN CORPORATIONS: refers to foreign corporation engaging in business in the Phils and those that does not engage in business in the Phils. If we talk about corporation engaging in business in the Phils they are required to acquire a license. So when we speak of a foreign corp it can either be those engaged in business with a license and those which engages in business without a license. What is a rule: A foreign corp which engages in business in the Phils w/o a license, it cannot sue and it can be sued. If it is a foreign corp engaging in business in the phils with license it can sue and be sued. A foreign corp which does not engage in business in the Phils is not required to secure a license. But even though it does not engage in business in the Phils and has no license, it can nonetheless it can sue under the following cases 1) isolated cases 2) protection of goodwill 3) application of estoppel Santiago Cua vs. Juan Ocampo on DERIVATIVE SUIT: the corporation is the real party in interest while the stockholders filing suit for the corporation’s behalf is only a nominal party. In this case, there are 2 suits filed, hence it violated the rules against multiplicity of suits and even forum shopping. Only one derivative suit should be filed even if there are two or more minority stockholders in the corporation because a derivative suit is a suit by the corporation. In Roger Navarro vs. Judge Escobido the SC ruled that there is no juridical or legal personality vested upon the sole proprietorship, nor empower it to file or defend an action in court. In this case, the adding of title in the case “Juansing Hardware” does not vest personality on the said business to institute a suit unlike in the case of a corp.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW The proper party in this case, is the owner of the business or the proprietor itself. PLEADINGS: Take note of the signature of the counsel: Who should sign the pleading? It should be sign by the counsel or the party. But an unsigned pleading produces no legal effect. But this defect can be remedied if there is merely an advertence. Remember the significance of the signature of a counsel in a pleading. It is actually a certification that he has read the pleading and that to the best of his knowledge and information he has a good ground to support it and it is not interposed for delay. ENTITY WITHOUT JURIDICAL PERSONALITY: ABC Corp has no license, no articles of in corp, by-laws or certificate of corporation but nevertheless they represent themselves as ABC corp. In the event that they enter into a contract with another party can they sue under the name of ABC Corp? No, but they can be sued under the name to which they are known such as ABC corp. this entity who represents themselves as a corp even without the necessary license shall be treated as a general partnership. In which case they will be liable, event to the extent of their personal properties for their obligations. A PO box cannot be used. Only a office or residential address. Only ultimate facts can be alleged, not conclusion of law or evidentiary matters. Exception: application of Rule 8, Sec 8 and 7 in cases of actionable document. An actionable document should be alleged, specifically the substantial portion thereof and attached to the pleading. An actionable document is a document which is the basis of the claim of the plaintiff or the basis of the defense of the defendant. On the part of the plaintiff, the actionable document is the promissory note while on the defendant it is the receipt showing payment as proof of extinguishment of an obligation. In a mortgage contract- the actionable document is the mortgage agreement itself. Where is the actionable document alleged? In the complaint and in the answer. Such if there is an actionable document attached to the complaint, the defendant is given two obligations, although as a rule material allegation should be specifically denied only if what is to be denied is an actionable document, the defendant is given one more obligation, which is to deny it under oath (whether alleged in the complaint or answer) meaning it must be verified. Otherwise, the party is deemed to have admitted its genuineness and

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW due execution. But can a party later claim that there is no consideration because what was admitted only was the genuineness and due execution. There are two EXCEPTIONS to the rule that if not specifically denied under oath it is deed admitted: 1)if there is an order of inspection of the actionable document 2) the party did not comply. Ex. An action for collection of money and defendant request for the inspection of the promissory note but plaintiff did not comply with the order of inspection. Defendant is not obliged to specifically deny under oath the promissory note because of plaintiff’s failure to comply with the order of inspection. Moreover, defendant can move for the dismissal of the case alleging, Rule 29, which is failure to comply with the order of the court. The requirement of specifically denying under oath likewise apply in cases of allegation of usury in the complaint otherwise the party is deemed to have admitted the allegations of usurious interest. Rule 8 Sec 11. Although an actionable document is alleged and attached to the document, when it comes to allegation of usury, the requirement of specifically denying under oath applies only if the allegations of usury appear in the complaint. An actionable document can be alleged and attached in the answer, and if it is, the plaintiff has the obligation to file a reply and it becomes an indispensable pleading because if no reply is filed, the plaintiff is deemed to have admitted the genuineness and due execution of the actionable document. But what if the case falls under the rules of summary procedure and the answer alleges actionable document is the plaintiff required to file a reply even though it is a prohibited pleading? NO. because if the case falls under Summary Procedure even if there is an allegation of actionable document in the answer, the plaintiff cannot file a reply because it is a prohibited pleading. What will happen to the allegations of actionable document? The rules of summary procedure will deny for the party. But the rule provides that the party is not allowed to raise evidentiary matters, so the party has to wait for a trial. Are the parties required to verify the pleading? How?: A pleading is verified by an affidavit stating that the party has read the allegations and that the allegations therein are true and correct to the best of their knowledge and information. the requirement of verification is not jurisdictional neither is it mandatory. It is merely a matter of form. That is in the case of Medserve Inc. vs. CA April 5, 2010- SC stated that verification is merely a formal requirement and non-compliance therewith does not render the pleading fatally defective. So when is a pleading required to be verified? Gen Rule: Pleadings are not required to be verified. Exceptions: If the rules or the law requires to be verified.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Pleadings that are required to be verified: 1) all pleadings under the Summary Procedures are required to be verified so these are complaint, answer, compulsory counter-claim, cross –claim and answers pleaded thereon. 2) initiatory pleading 3) mandamus, etc Who should sign the verification? The signature of any of the principal petitioner is substantial compliance. CERTIFICATION AGAINST NON-FORUM SHOPPING: Chua vs. Metrobank Kinds of Forum Shopping: 1) If there is a case of litis pendencia, there is forum shopping. Litis pendencia arises by the filing of multiple cases and non of the case have been resolved by the court. 2) In case of res-judicata- one cause of action and separate cases involving the same cause of action and the same prayer and the previous case having been finally resolved and 3) filing multiple cases based on the same cause of action but with different prayers such as would result to the splitting of causes of action. EFFECT: whether a forum shopping as an act was willfully and deliberately committed, the subsequent case shall be dismissed WITHOUT PREJUDICE on the ground of either litis pendencia or res-judicata. However, where the act is willful and deliberate, both or all, if there are more action shall be DIMSISSED WITH PREJUDICE and the court can motu-propio dismiss it on the ground that there is forum shopping. No need for hearing or motion because there can be summary dismissal of the case. DISMISSAL WITH PREJUDICE: Cannot refile the case. Remedy: Appeal DISMISSAL WITHOUT PREJUDICE: Can refile the case. Remedy: Petition for Certiorari Effect of failure to comply with the rule on certification against non-forum shopping: Rule 7 Sec 5 (2): Will result to the dismissal of the case without prejudice. Situation: A filed a case against B. B filed MTD on the ground of failure to comply with the rule on cert against non-forum shopping. The court dismissed the case. What is the remedy of the plaintiff? The remedy is not appeal but Petition for Certiorari Rule 41 Sec 1(h) Is the certificate against non-forum shopping mandatory? Yes but not a jurisdictional requirement. Who should sign the certificate against non-forum shopping? The party or principal party if two or more. EXCEPTIONS: application of the liberal application. The counsel may sign the certificate of non-forum shopping if he is armed with a authority or board resolution if the party is a corporation . In Ortiz vs. CA the SC stated that if the counsel can give a 37

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW good reason why he was not able to secure his client’s signature, and his client is not deprived due process, the counsel can sign the certificate against non-forum shopping. When 3 out of 97 plaintiffs signed the certificate of non-forum shopping was held by the SC as substantial compliance with the requirement that all parties should sign the certificate where there is commonality of interest as between the parties to the action. Can the defect of failure to sign the certificate as Non-forum Shopping be cured? Case: A filed a case against B but failed to attach a certificate against non forum shopping. B filed MTD and the court dismissed the case. A filed a MR attaching a certificate against non-forum shopping. The court reconsidered and continued with the proceeding. Is the court correct? NO because the defect cannot be cured. Lets say B filed an MTD instead of an answer and before the court can rule on the motion, plaintiff filed an amendment because under the rules, a party may amend his complaint before a responsive pleading. The court granted the amended complaint. Is the court correct? NO, the defect cannot be cured by an amendment and attaching therein a cert against non-forum shopping? Can the court motu propio dismiss the case? No, there must be a motion on the part of the other party. Otherwise there will be a grave abuse of discretion. COMPULSORY COUNTER-CLAIM – It must be pleaded otherwise it is barred. But a permissive counter-claim which has no causal relation or did not arise from the complaint can be a subject of a separate and distinct complaint and which was incorporated in the answer in order to avoid multiplicity of suit. In which case, the party is required to pay docket fees. But in compulsory counter-claim, the party is not required to pay docket-fees. In permissive counter-claim, since it is supposed to be a separate complaint, the plaintiff is required to file an answer otherwise, rule 9 Sec 3, the plaintiff will be declared in default. Moreover, since it is an initiatory pleading which is merely incorporated in the answer, a certificate against non-forum shopping should be attached unlike in a compulsory counterclaim. Roxas vs. CA; Benedicto vs Lacson Case: important: ROXAS DOCTRINE Situation: A filed a case against B for collection of sum of money but before B files an answer, plaintiff filed a notice to dismiss pursuant to Sec 1 Rule 17; After sometime plaintiff re-filed the case against B but plaintiff forgot to state in the certificate against non-forum shopping that there was a previous case wherein a MTD was filed. Was there a violation against non-forum shopping? In Roxas vs. CA and Benedicto vs. Lacson, the SC stated there is no violation 38

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW of the rule on cert against non-forum shopping. The rule states that if a complaint is dismissed at the instance of the plaintiff under Sec 1 Rule 17 there is no need to state in the certificate against non-forum shopping in the subsequent case filed the previous dismissal of the case as a matter of exception to the rule. Are we allowed to FILE A PLEADING through a private courier? NO in the case of Benguet Electric Cooperative vs. NLRC. It should be filed personally or substitute service. DOCKET FEES: See above discussion: Effect of payment of docket fees: 1) the action is deemed to have commenced 2) court acquires jurisdiction over person of the plaintiff 3) it stop or tolls the running of the prescriptive period to file an action Can alternative causes of action be alleged or implead alternative defenses? Under Rule 3, alternative defenses can be impleaded if the plaintiff is not sure who should be the defendant. Can alternative cause of action be alleged? Yes, where it cannot be determined whether a case for culpa aquillana or culpa contractual or breach of contract of carriage should be filed. (Mallorca case) After the complaint has been filed and summon were served, the plaintiff can do two things: 1) amend the complaint or 2) dismiss the complaint 2 NOTICE RULE: The plaintiff can dismiss the complaint as a matter of right before the answer is served to the other party. The court has no authority to refuse the dismissal because as long as there is no responsive pleading (answer) dismissal on the part of the plaintiff as a matter of right under Rule 17. The plaintiff will not file a motion but merely a notice to dismiss. The court cannot grant or deny the same but merely confirm the decision of the plaintiff to dismiss the case. If the court refuses to dismiss the case, can the plaintiff file a mandamus to compel the court? Yes, because the court does not exercise discretion but merely ministerial. But after sometime, A again re-filed the case and paid the docket fees. B asked A to dismiss the case so A filed a notice to dismiss again. Can A do that? Yes but later re-filed again for the 3rd time and upon the request of B he filed for a notice of dismissal but this time the court denied it? Was the court correct? Yes, the dismissal of the second complaint filed is considered as an adjudication on the merits. Therefore , the rule on resjudicata applies. What if after plaintiff filed a complaint against B, he did not file an answer but instead a MTD. Can A still file a notice of dismissal? Yes, because a MTD is not a responsive pleading so much so that even if there is a MTD, plaintiff 39

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW can amend his complaint because it is not a responsive pleading. But after filing of answer DISMISSAL IS NO LONGER A MATTER OF RIGHT, hence plaintiff has to file a motion to dismiss under Rule 2, and this time the court exercises discretion and will evaluate whether to deny or grant the MTD. If the case has been dismissed by virtue of a MTD, that means after the filing of a responsive pleading, can plaintiff still refile the case? If the ground is lack of jurisdiction can the complaint be refilled? Yes, file it with the court that has jurisdiction. If the ground failure to state a cause of action, can it be refilled? Yes, re-state the cause of action. If the ground is improper venue, file it in the proper venue. But if the case is dismissed on the ground of prescription, the case can no longer be re-filed. The same is true if the case was dismissed by reason of barred by prior judgment, res-judicata or unenforceability. If there is a dismissal of the complaint before the filing of an answer and the answer incorporates a permissive counter-claim or compulsory counter-claim. Is the dismissal of the complaint carries the dismissal of the permissivecounter –claim or compulsory –claim. NO. Since july 1, 1997, the dismissal is limited only to the complaint, the permissive or compulsory counterclaim is not dismissed. But the defendant has an option. 1) whether to prosecute his counter-claim in the same action or 2) file a separate claim. DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF: 1) failure to appear on the date of presentation of evidence in chief 2) failure to prosecute for unreasonable length of time 3) failure to comply with the order of the court, or with the rules. Dismissal under 2 and 3 are considered as adjudication on the merits and the principle of res-judicata applies and the party cannot refile the case unless the dismissal specifically states that the dismissal is without prejudice. Take note of Gomez vs. Alcantara and PNB (2-9-2009)vs. Estate of Francisco de Guzman 6-10-2010) AMENDMENT: 1) amendment as a matter of right 2) amendment as matter of discretion 3) amendment to conform to evidence 4) amendment by implication 5) amendment to confer jurisdiction to the court After the filing of the complaint and service of summons, the plaintiff can do two things either amend or dismiss the case. If plaintiff did not opt to dismiss the complaint and instead wants to amend. Before the service of responsive pleading (answer) amendment is a matter of right such that the court cannot do anything and can be compelled by mandamus. But since it’s a matter of right, plaintiff can absolutely change anything in the complaint including the cause of action. However, amendment under Rule 10, this cannot be done twice. Even if there is no answer but only an MTD, amendment can no longer be a matter of right but already discretionary and therefore it requires leave of court. If it is a matter of discretion, the court can refuse the amendment if the purpose is to change the cause of action or alter the theory of the defense or interpose for delay. 40

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW EXCEPTION: Valenzuela vs. CA 416 Phil 289 (2001) as cited in Henry Ching Tiu vs Phil Banks of Communication (8-19-2010): SC stated that even if the amendment substantially alters the cause of action or alter the defense of the case such amendment will still be allowed where it 1)sought to serve the higher interest of substantial justice, 2) prevent delay, and 3) secure the just, speedy and inexpensive disposition of the proceedings. AMENDMENT TO CONFER JURISDICTION: A filed a case against B for P300,000 before RTC of QC. B filed MTD for lack of jurisdiction. A filed an amendment raising the amount to 500k. RTC allowed the amendment. Did the court acted correctly? No, the court erred in deciding the amendment of the complaint since it has no jurisdiction in the first place to take cognizance of the original case applying the SIASCOSO DOCTRINE (Siascoso vs. CA) EXCEPTION: In the old case of Gumapay vs Maralit and later as cited in the case of Irene Sante and Reynaldo Sante vs. Claravall. SC states that amendment should be allowed as a matter of right under Rule 10 Sec 2 since what B filed was MTD and not a responsive pleading (answer). Therefore, plaintiff can amend the complaint to confer jurisdiction to the court. The prohibition to the rule that a complaint cannot be amended as a matter of right to confer jurisdiction applies only where an answer has already been filed. (NOTE THIS IS VERY IMPT) AMENDMENT TO CONFORM TO THE EVIDENCE: Issues were raised during trial but was not alleged in the complaint or pleading. There is an evidence presented during trial but was presented in order to prove a matter not found in the complaint. If the matter is not alleged in the complaint or any pleading thereof, that evidence should not be allowed because it is IMMATERIAL. So if there was no allegation on the demand letter in the complaint but during trial, plaintiff presents the demand letter after its presentation plaintiff can move to amend the complaint to conform to evidence presented under Rule 5. What if the complaint was not amended, what will happen? Can the court consider or appreciate the demand letter presented during trial in resolving the case. Yes, there will be an amendment by implication because it is as if it was raised in the pleading already because the court can validly consider an evidence even it was not included in the pre-trial order if there was no objection or opposition on the part of the other party. A filed a complaint against B for sum of money due and demandable on Dec 2012 but the complaint was filed before the obligation became due and demandable. So B filed MTD for lack of cause of action. But during the pendency of MTD, A filed an amended complaint believing that it is a matter of right applying the principle laid down in Sante vs. Claravall. Is A correct? No. The complaint cannot be amended if in the first place, the cause of action has not accrued at the time of the filing of the complaint. 41

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Let us say, during the pendency of the MTD, the judge died so its already January but the MTD has not been decided. A filed amendment during pendency of a MTD, SC said No, there is an after acquired cause of action and the plaintiff cannot be allowed to amend the complaint to allege an after acquired cause of action precisely because there was no cause of action in the first place and the plaintiff cannot amend the complaint. Can a supplemental complaint be filed? No. If the complaint is amended, what would be the effect of the amendment? It will supersede the original pleading. What happens to the allegations in the original complaint? The admissions in the pleadings becomes extra-judicial. In Torres vs. CA, admissions in the amended pleadings may be considered as extra-judicial admission. If the original pleading is amended, can a new summon be served on the defendant? NO. if they have already appeared by virtue of the summons served on the original complaint, there is no need to serve a new summon. But if they have not appeared on the original pleading, there is a need to serve a summon. SUPPLEMENTAL PLEADINGS: Refers to matters that arose after the filing of the pleading. If the summons has already been served, what will happen. What is the obligation of the defendant? He can either 1) ignore the summons or 2) or respect the summon and file an answer. If the defendant ignores the summon, he will not file an answer. The summons tells the party to file an answer within 15 days and failure to do so, he will be adjudged in default. What is the purpose of summons? For the court to acquire jurisdiction over the person of the defendant and to afford due process. Can the court declare the defendant in default motu propio? NO, the court has to duty to wait for a motion to declare the defendant in default and the court has the duty to wait for the proof of service of the motion to declare defendant in default because one of the rights of a party declared in default he should have received a motion declaring him in default and notices of the proceedings. Can he appear and testify in court? No, because he is in default, he has lost his standing in court. So the court has to wait for the motion to declare the defendant in default and this motion should be set for hearing because it should comply with Sec.,4 5 and 6 of Rule 15 of the Rules of Court otherwise that motion will be considered as pro-forma motion. A pro-forma motion is a motion that violates the provisions of the Rules. So therefore it should be set for hearing because it is a litigious motion. After the hearing thereof , the court can now declare the defendant in default.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW What is the effect of the declaration of default? The Rules of Court states that the plaintiff maybe allowed to present evidence ex parte or the court can render a judgment on the basis of the complaint. If the defendant is declared in default, what is the remedy of the defendant? A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to FAME and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions. It is not enough that a party files a motion to set aside order of default. He has to file an affidavit of merits stating therein that he has meritorious defense. This affidavit of merit is jurisdictional such that if it is not included in the motion, said motion shall not be heard by the court. It is not only a motion to set aside order of default as the only remedy. An MR on the order declaring the defendant in default can be filed. In Facundo vs CA. if an MR or motion to set aside order of default is filed, that is considered as voluntary appearance. What is the extent of the relief granted by the court in case the defendant has been declared in default? If plaintiff’s claim is 1M and defendant has been declared in default and plaintiff presented evidence ex parte, he was able to prove that he is entitled to 1.5M, can the court grant the amount the 1.5M conformably to the evidence presented exparte? NO, because if a party has been declared in default the amount granted cannot exceed the amount claimed or be of different in kind nor award of liquidated damages if there are no evidence presented. But if there is no declaration of default and plaintiff was able to prove the amount of 1.5M notwithstanding that his claim is only 1M in the complaint, can the court award the amount proved? YES, this is covered by the phrase “just and equitable under the premises”. But if on the other hand, defendant files an answer, he may admit the material allegations in the complaint or his answer fails to tender an issue, plaintiff may invoke judgment on the pleading or if there is no genuine issues, plaintiff may invoke for summary judgment. The court need not go to trial anymore because it is already admitted in the answer or pleadings, hence, judgment can be rendered based on the pleadings. WAYS OF CUTTING SHORT LITIGATION: 1) Motion to dismiss; 2) Judgment on the pleadings; 3) Summary Judgment 4) MTD by way of Demurrer to Evidence If the answer does not admit the allegations, defendant can file an answer and allege affirmative defenses. To delay a proceeding or give time to defendant to meet is obligation, Defendant can file a MTD to question jurisdiction over the subject matter or person of the defendant or Motion for Time but by doing so, 43

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW party cannot question the jurisdiction of the court. Defendant can file Bill of Particulars because they are vague allegations in the complaint so plaintiff will file an amended complaint to clarify his claim. Note that if the answer is vague, plaintiff can also file for a Bill of Particulars. WHAT IS THE EFFECT OF NON-COMPLIANCE WITH AN ORDER FOR A BILL OF PARTICULARS? None compliance with the order of the court to file a bill of particulars, the pleadings or answer may be expunged from the record. If it is expunged, there is no more answer and defendant can be declared in default. WHEN MAY A PARTY BE DECLARED IN DEFAULT DESPITE THE FILING OF AN ANSWER: 1. Rule 29 (c ) An order striking out a pleading or staying of proceedings until order is obeyed or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party. 2. Rule 29 (5) If a party fails to appear before an officer who is to take his deposition after being served with proper notice, the court on motion and notice, strike out all or any part of the pleading of the party or dismiss the action or proceeding or any part thereof or enter a judgment by default against the party 3. Rule 12 if Motion for Bill of Particulars was not complied by defendant, will result to striking out of answer, which may result to declaration of default. HOW WILL THE COURT ACT ON A MOTION FOR A BILL OF PARTICULARS? The motion was set on a Friday and called for hearing. On hearing the court informed the defendant that the court has already ruled on the motion. Did the court acted correctly in ruling on the motion before the hearing? Upon filing of the Bill of Particulars the court can do 3 things: 1) deny it outright 2) grant the motion outright 3) or give the parties the opportunity to be heard pursuant to the right to due process. Bill of particular must point out the defects complained of, paragraphs where the defects are contained and the details desired. THIS IS MANDATORY. None-compliance with this requirement, the BOP will be a proforma and therefore it will not stop the running of the prescriptive to file an answer. If it is a pro-forma it will be a mere piece of paper with no force and effect and therefore, the court cannot act upon the motion. New CASE: on declaration of default San Pedro Complex vs. CA: if the party did not file an answer within 15 days the party will be declared in default. A party who files an answer on the 91st day, as long as there is no motion to declare defendant in default and as 44

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW long as there is no declaration in default, the answer will be admitted provided a motion to admit answer has been filed and state therein the reason for the delay. THERE MUST BE A HEARING BEFORE A ORDER TO DECLARE IN DEFAULT CAN BE GRANTED Grounds for Motion to Dismiss: Do not file an appeal on the denial of motion to dismiss but file an answer, continue with the proceeding and appeal from the decision on the case. But if the MTD is granted, it is a final order but not yet executory because there are still post judgment remedies. ANSWER: 2 Parts of an Answer: 1) Affirmative Defenses 2) Negative Defenses Denials: 1) general denials 2)specific denials 3) negative pregnant 4) pregnant with an admission NEGATIVE PREGNANT- deny only peripheral aspect of the allegation but not the main allegation. Ex. You said A is gay and he goes to Adonis everyday. A answers that he does not go to Adonis. So he only denies the peripheral aspect and not the main allegation which says that he is a gay. AFFIRMATIVE DEFENSES – hypothetically admitting the allegation but presenting theseaffirmative defenses to avoid liability. Denials should be specific denial because a general denial amounts to admission. So material allegations should specifically denied otherwise they are deemed admitted. KINDS OF PLEADINGS: 1. complaint 2. Counter claim 3. Permissive counter-claim Can you file a counter-claim against a person who is not yet a party to a case? SC says yes, so he can be brought into the case. Can you file a party cross-claim against a co-defendant? Yes, without a need for leave of court. Ex. A filed a complaint against B and C, but actually it was C who used the money, B can file a cross claim against C to bring him in the action. A and B quarrels over a parcel of land which is actually owned by C, C appears files an complaint intervention or answer intervention for purposes protecting his interests over the land. This can be filed provided there is no judgment yet and with leave of court.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW REPLY: file if the answer attaches an actionable document. It is the last pleading to be filed. After the filing of the reply, it is the duty of the plaintiff to move ex parte the case for pre-trial. Under Rule 18, it is mandatory for the parties to file a pre-trial brief. Failure to do so, it would be tantamount to nonappearance during pre-trial. During the pre-trial, the judge will ask the parties if they want to settle the case. If parties refuse to enter into an amicable settlement, can the court right away terminates the pre-trial order for the presentation of evidence by the plaintiff and defendant respectively? NO, because the pre-trial is not only for purposes of exploration of amicable settlement, there are stipulation of facts, marking etc. As matter of fact a counsel if armed with an SPA should include all the acts that can be done during pre-trial. So for instance, a counsel who possess an SPA but his authority includes only to sign and represent the party but does not include the authority to appear for and behalf of the client, his authority is defective and therefore the client may be deemed to be absent during pre-trial. The SPA should include all acts that can take place during pre-trial. After presentation of evidence by the plaintiff, the defendant has two options, present his evidence in chief or to file demurrer in evidence on the ground of insufficiency of evidence. (See discussion above). 2 INSTANCES WHEN DOUBLE –JEOPARDY ATTACHES EVEN THOUGH THE DISMISSAL WAS AT THE INSTANCE OF THE DEFENDANT: 1. Dismissal of the case on the ground of demurrer to evidence2. Violation of the speedy trial act of 1998 In civil case, there is no period to file a demurrer to evidence, in criminal case, the party has to file a motion for leave of court within 5 days and if granted, to file a demurrer to evidence within 10 days. Thereafter, the parties will be asked to submit their respective memoranda. After which the court will render a judgment. The rule is, the judgment will only be valid if the court that rendered the judgment has jurisdiction over the subject matter, parties and issues otherwise the judgment is VOID AB INITIO and will not bind the parties. The judgment should be in writing and should state distinctly the facts and the law which is the basis of the judgment. If the court has no jurisdiction, no matter how correct the decision, the judgment is VOID. But if the court has jurisdiction, no matter how incorrect or erroneous the decision is, as long as the court has jurisdiction, that judgment is VALID. An erroneous judgment can be considered a valid judgment if there was no invocation of the post judgment remedies and the parties allowed that erroneous judgment become final and executory. But the remedy is to file an appeal, MNT or MR. If

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW the court however has no jurisdiction, the remedy is to file a petition for certiorari, prohibition or mandamus. 2 DISMISSAL RULE: If plaintiff decides to dismiss the complaint prior to the service of the answer, dismissal is a matter of right, such that the court has no right to refuse the dismissal precisely because such dismissal of the complaint before the service of answer is a matter of right. In fact A PETITION FOR MANDAMUS CAN BE FILED TO COMPEL THE COURT TO ACCEPT THE DISMISSAL. Since it is a matter of right, the court has no discretion and will not exercise discretion. It will merely confirm the decision of the plaintiff to dismiss the complaint. Conformably to the provision of Sec 1 Rule 17, the dismissal as a matter of right can be done twice. After the second dismissal as a matter of right before the service of the answer, the effect would be adjudication on the merits, such that there will already be res judicata. Such that the 3rd time that the party moves for the dismissal of the complaint even though there is no service of answer yet the provisions of Sec 2, Rule 17 will now be invoked. In other words, there is a need to file a motion already because the party is already bound by the 2 notice rule or the 2 dismissal rule. Filing of the dismissal after the service of an answer is no longer a matter of right, but should already be subject to discretion and therefore should be subject to the filing of a motion. As such it may be granted or denied. PRESENTATION OF EVIDENCE: Order of presentation: 1) Conduct of direct examination for the purpose to prove the allegations in the complaint. 2) After the conduct of direct examination by the plaintiff, the other party will conduct a cross examination for the purpose of disprove the credibility of the witness and is limited to the scope of the direct examination. The probative value of the evidence is not the same as the admissibility of evidence. When we speak of the probative value of the testimony of the witness we speak of the credibility of the witness. After the presentation of the evidence of the plaintiff and the defendant, the plaintiff may present rebuttal evidence provided it is with the leave of court. When you refer to rebuttal evidence, a party cannot present new cause of action nor can you prove your causes of action if you are the plaintiff during rebuttal stage, because the purpose of rebuttal is only to attack the evidence presented by the defendant. The same is true if defendant is to present surrebuttal evidence, he cannot present new evidence. After presentation of evidence by the defendant, he has to file his formal offer exhibits. A party is not compelled to offer all exhibits presented during trial. If an evidence is prejudicial, the party is not compelled to offer that evidence especially if the other party has not adopted that evidence. After the offer, the issue has to order whether it admits or deny the exhibits. Defendant will not present sur-rebuttal if plaintiff did not present rebuttal. 47

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Take note that no evidence shall be appreciated by the court unless it has 1) marked during pre marking2) presented during trial 3) authenticated by witnesses 4) offered 5) admitted by the court. After the order has been issued by the court to admit the exhibits, it will order the parties to submit their memorandum to aid the judge or court in deciding the case. Note that the judge may copy in toto the jurisprudence of the parties in their respective memorandum. JUDGMENT: MUST BE IN WRITING (refer to above discussion) What is the distinction between final order and interlocutory order: INTERLOCUTORY ORDER- there is something to be done. Cannot be appealed. Certiorari may lie where there is grave abuse of discretion. But if it is a final order, avail of the post judgment remedies. When a judgment becomes final and executory it can no longer be changed, altered or modified except in cases of clerical error and nun pro tunc judgment provided the rights of the parties are not affected. When does a judgment become final and executory? After the lapse of the 15 days to file an appeal, MR or MNT or without waiting for the 15 day period, the party waives the post judgment remedies. If the judgment is already final and executory, under the DOCTRINE OF FINALITY OF JUDGMENT or DOCTRINE OF IMMUTABILITY OF JUDGMENT, that judgment can no longer be changed, altered or modified and the court loses jurisdiction to amend the same. Take note of the principle of res judicata, law of the case doctrine. WHEN IS THERE ENTRY OF JUDGMENT? Entry of judgment does not mean the entry in the books of judgment but the date when the judgment becomes final and executory regardless of the physical act of the clerk of court in entering the dispositive portion judgment in the books of entry of judgment. If you are the losing judgment avail of the post judgment remedies under Rule 37 either MR or MNT. When you talk about MR, file it within the period to file an appeal which means 15 days. If an MR was not filed and it is already the 5th day, can a party file a Motion for extension to allow him additional period to file an MR? No. it is prohibited applying the JABULYAS DOCTRINE: Motion for extension of time can no longer be filed in order to file a MR because after the lapse of the 15 day period, the Doctrine of Immutability of Judgment or Doctrine of Finality of Judgment will apply. Which means that if a 48

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW party files a motion for extension of time even though within 15 day period after the lapse of the 15 day period, you will render that decision, which is the subject of a Motion for reconsideration final and executory. The MR is grounded on 3 grounds: 1) damages are excessive 2) evidence is insufficient 3) decision is contrary to law. SC has clarified that if a party is not going to invoke any of these grounds the MR is considered pro-forma, hence it will not stop the running of the period to file a MR. A pro-forma motion is a useless piece of paper without force and effect and it does not present any question for the court to resolve. It does not give authority to the court to take cognizance. WHEN IS THERE PRO-FORMA MOTION? A motion is pro-forma if it violates the provisions of the Rules. If it does not comply with the Rules. Under Rule 15 and galaxy of cases, the provisions of Secs 4,5,6 of Rule 15 should be followed. Otherwise, the motion will be considered pro-forma. Motion for Reconsideration is an Omnibus Motion under Rule 15 which means all the grounds should be included at the time of filing otherwise they are deemed waived. EXCEPTIONS: lack of jurisdiction, prescription, res judicata A motion for reconsideration must be in writing which requires that it should follow the 3 day motion rule and the 10 day notice rule. Three days to hear the motion and 10 days within with to file the MR. A SECOND MR IS PROHIBITED. The prohibition as to the filing of a second Motion for Reconsideration applies only to a final order. It does not apply to an interlocutory order. If the ground is FAME, do not file MR but instead a MNT. It should be filed within the same period to file MR. Newly discovered evidence are not forgotten evidence, but those evidence not discovered and produced during trial. If a MNT is filed, an affidavit of merit is required. If the MNT is allowed, it will start a trial de novo, evidence presented will no longer be presented anew. If the court grants or denies the MNT or MR what are the remedies? If granted, the old judgment is disregarded. If denied the MR should not be appealed, but the ORDER which is the subject of the MR. When do you file a MR/MNT: 15 days. If it is filed on the 8th day and it was denied, can an appeal be filed? Under the old rule, appeal may be file on the remaining or the balance of the period. If the MR/MNT is filed on the 6 or 7th day it is filed out of time.. But under the NEYPES doctrine, parties have a fresh period of 15 days within which to file an MR or MNT. 49

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW In Sumiran case; the Neypes rule is made to apply after Set 2005 cases but in Duarte vs Duran case: the fresh period can be applied even before the Set 14, 2005 cases because there is no vested right in procedure and later cited in Phil Estate Property vs. Judge Villanueva If an MR/MNT are denied, file an appeal. The relevant provisions are Rule 40, 41, 42 43, and 45. Appeals from MTC to RTC, apply Rule 40. Appeal from MTC to RTC appeal is via Notice of Appeal to the court which rendered the judgment and not to the appellate court. To do otherwise will not stop the running of the period to file an appeal, therefore the judgment will become final and executory. When is a appeal deemed to have perfected? Ex. decision rendered by MTC. Can the decision executed while pending appeal? Yes, two kinds of execution 1) Execution as a matter of right 2 ) Discretionary Execution ( execution pending appeal) Under Rule 70, it is not enough that a motion for execution is filed. The defendant upon filing a notice of appeal to the MTC has within a period to file an appeal has to post a supersedeas bond, deposit accrued rentals. If defendant files a notice of appeal but did not post supersedeas bond and accrued rentals deposited, can a motion for execution pending appeal still be filed? Yes. Under the Residual Jurisdiction of Court, as long as the MTC is still in possession of the records of the case or has not transmitted the records of the case to the RTC, the MTC can still render judgment to preserve the rights of the parties, to execute compromise agreement and including execution pending appeal. But if the records have already been transmitted to the RTC the motion for execution pending appeal should be filed with the RTC. In Chua vs. CA, as long as the motion for execution pending appeal within the 15 days period within the period to appeal, the MTC can still grant the motion by virtue of its residual jurisdiction. From the RTC, appeal should be taken under Rule 42, or the RTC exercising its appellate jurisdiction. In accion publiciana, the MTC shall exercise jurisdiction provided it is within its jurisdiction based on its assessed value. If the assessed value is 51K in MM, the case is appealable to RTC. Rule 43 appeals on decisions of quasi judicial agencies except decisions of CTA division which is appealable to CTA en banc and from the CTA en banc decision is appealable not to CA because it is of equal jurisdiction but to the SC. NLR decisions are appealable to CA applying the doctrine of judicial hierarchy. Ombudsman appealable to CA only for administrative cases. Sandiganbayan decisions appealable to the SC. Rule 45 refers to decisions rendered by RTC to SC on pure questions of law via appeal by certiorari or as a continuation of the appellate process. No need to go to CA or to SC. 50

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW If a decision of RTC and a petition for certiorari was filed to the CA under Rule 65 (original jurisdiction) but was denied, go to SC under Rule 45 within a period of 15 days since it is a continuation of appellate process. If the decision is final and executory, invoke Rule 38 or petition for relief 60 days from the time the party learns of the judgment and 6 months from entry of judgment. These two periods must concur. Basis: FAME, affidavit of merit is jurisdictional requirement. This can still be availed even if the party has already filed an appeal, MR, MNT. But the mere filing of the petition for relief from judgment will not stay the execution of judgment. An injunction has to be secured to stay the execution of judgment because a petition for relief presupposes that there is already a final and executory judgment. The petition for relief should be filed to the court which rendered the judgment. If the petition for relief is to be filed with the SC, do not use Rule 38 but Rule 47 and the grounds is not FAME but lack of jurisdiction (imprescriptible) and extrinsic fraud (within 4 yrs.) A decision of MTC can be a subject of annulment of judgment before the RTC, RTC to CA and so on. ON PETITION FOR CERTIORARI: go back to Constitutional provision Art 8 sec 1 of 1987 Constitutional on judicial power which is the basis for the filing of a petition for certiorari. Under this Constitutional provision, judicial power includes the power of the court to settle actual controversies involving rights are legally demandable and enforceable. This expanded concept of judicial power now includes the power to determine whether there is grave abuse of discretion amounting to lack or excess of jurisdiction to any branch or instrumentality of govt, as a manifestation of an observance to the principle of checks and balances. Rule 65 tells us that a decision of the Optical Board is subject to a petition for certiorari on the ground of grave abuse of authority. When we talk about petition for certiorari this is a concurrent authority of the RTC, CA and SC. When we talk about interlocutory order it can be a subject of certiorari to be filed within 60 days from receipt of the adverse judgment or from the receipt of the denial of a MR. A MR is a condition sine qua non for the filing of a petition for certiorari. There must be no plain speedy, adequate remedy available under the ordinary course of law. The filing of a petition for certiorari cannot be a substitute for a lost appeal. So if there is still a MR, MNT or appeal available, certiorari cannot be availed of. Except of course where is there is grave abuse of discretion in which case recourse should be taken to the SC. The filing of petition for certiorari just like a petition for review will not toll the period. Before, when a petition for certiorari is filed, the DOCTRINE OF JUDICIAL COURTESY is applied such that the court with whom the case is pending will not act on the case and await the decision of CA or on the petition for certiorari. In 2007, SC issued a circular and states that the filing of certiorari will not stop the proceeding in the lower court but 51

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW rather the court a quo will be given only a period of 10 days and after 10 days, the court will continue with the proceedings. Otherwise if the judge will not continue with the proceedings, he will be held administratively liable. The proceedings will only be stayed if the party has obtained an injunction, TRO or writ of prohibition otherwise, the proceeding in the court a quo cannot be stayed. Also, in petition for certiorari, the principle of hierarchy can be invoked such that if a case is pending in MTC, petition for certiorari should be filed first with the RTC or from RTC to CA. Distinction between Rule 45 and Rule 65: Under Rule 45, period to file an appeal by certiorari is 15 days, Rule 65, period is 60 days. Rule 45 the issue is pure questions of law, Rule 65, grave abuse of discretion. Rule 45 does not require MR before filing, Rule 65, MR is a condition sine qua non for the filing of certiorari. A complaint dismissed under Sec 1 Rule 16 can be re-filed except where the grounds are 1) prescription 2 obligation has been extinguished, abandoned, waived 3) res judicata 4) unenforceability. ON FORUM SHOPPING: see above discussion . ON WRIT OF EXECUTION: In ejectment case, where the court has directed the sheriff to implement the notice to vacate and the defendant refuses to vacate, the court cannot cite the defendants in contempt because the order is directed on the sheriff, however, if upon the serving of the notice to vacate, defendants left the premises but later on return and again occupied the property, this time the court can cite the defendants in indirect contempt. For instance in the above example, there is a third person who appear and claim ownership over the property? What is the remedy? File an affidavit of third party claim or terceria to the sheriff to protect his interest on the property which is not even the subject of the case. The moment the sheriff accepts the affidavit of third party claim or terceria, the sheriff cannot continue with the levy over the property unless the judgment obligee post a bond relative to the levy of the property. Where is terceria found? 1) Rule 39 2) Rule 57- property attached and is actually owned by 3rd person 3) 60 on writ of replevin where there is a 3rd party claimant. The 3rd party claimant is an exception to the rule on judicial stability because as a rule no court of equal grade can interfered with the ruling of a court of the same level. But if there is a 3rd party claim on the party, it would be a height of injustice if his property which is not even a subject of the case will be made a subject of a levy. EVIDENCE:

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Evidence is the mean sanctioned by the rules in ascertaining in a judicial proceeding the truth respecting a matter of fact. Forget Rule 134 already in incorporated in Rules 33 and 34. Do not talk about evidence when not referring to a judicial proceedings. When referring to administrative bodies or quasi-judicial agencies, the rules of evidence is not applied strictly. In labor law, the doctrine of compassionate justice was laid down says that the rigid rules of procedure do not strictly apply in administrative bodies. Proof- result of the evidence. There is no evidence where there is no proof. Evidence can be viewed in three ways: 1) evidence as viewed by complainant 2) evidence as viewed by the accused 3) evidence as viewed by the court If the case has been dismissed on the ground of violation of the right to speedy trial that dismissal for all purposes and intent shall be considered as double jeopardy. As a general rule, when talking about double jeopardy, the dismissal of the complaint was not at the instance of the accused. In order to set the parameters we need the rules of evidence. We have rules in the conduct of trial. Are the rules in civil procedure and criminal procedure are the same. EXCEPTIONS: 1) Quantum of evidence 2) offer of compromise except in quasi offenses 3) criminal cases presumption of innocence, in civil cases there is no presumption except presumption juris tantum and presumption ete jure. DISTINCTION: Factum probandum- facts to be proven Factum Probans- means or evidentiary facts that will prove factum probandum Instances when the rules on evidence do not strictly apply in judicial proceedings 1) rule on summary procedure in civil case because after the pretrial, the parties are asked to submit their position paper, there is no trial anymore, hence the rules on evidence do not apply 2) summary procedure when you talk about legal cases(?) on simplified contract affidavit is subject to cross examination already 3) agrarian cases REQUISITES OF ADMISSIBILITY: 1. RELEVANCY: relation with the fact to be proven. There must be logical connection between the evidence and the issues raised in the pleading. 2. COMPETENCY – evidence which is relevant and which is not be excluded by the law, rules, decisions of SC. If the evidence is relevant and competent that evidence is already admissible. 53

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Ex. Pedro is in possession of an armalite rifle. The Bgy. Chairman went to the police station to report that Pedro is an owner of an armalite rifle and on the basis of this report the police officers went to the house of Pedro and inquired whether he possess this armalite rifle to which Pedro admitted. After finding 2 armalite rifle in the possession of Pedro he was brought to the police station and was asked about the ownership of rifle. Pedro admitted ownership of the rifles and that he has no license to possess the rifles. When asked by the police officers to write his admissions in his sworn statements Pedro complied. Pedro asked if he can have a lawyer but was asked by the police officers to waive his rights to which he agreed. So he was charged of illegal possession of the armalite rifles and during trial these rifles were presented in evidence. Is the armalite rifle a relevant evidence? Does it have logical connection to the case? Is it competent evidence? Answer: The armalite rifles are relevant evidence because it has logical connection to the case but it is not a competent evidence because it is excluded by law there being no warrant for its seizure. Can the court after trial appreciate these rifles as admissible evidence against the accused? No, because in order for the evidence to be admissible, it must be relevant and competent. Is the sworn statement admitting ownership and possession of the unlicensed firearms relevant evidence? Yes. Is it competent evidence? No, because he was not assisted by a counsel during the execution of the sworn statement. Is the waiver admissible in evidence? Is it relevant? Yes. Is it competent? No because he was not assisted by a counsel during waiver of his right to counsel. Hence, the evidence presented did not pass the test of admissibility and therefore a judgment of acquittal is in order because the quantum of evidence required has not been established by the prosecution 2 KINDS OF JUDGMENT OF ACQUITTAL: 1. Acquittal that tells us that the accused is not the author of the crime 2. Acquittal that the quantum of evidence required was not established by the prosecution In the first, if the accused is not the author of the crime there is no basis for civil liability. This is because under the rules, a civil action is impliedly instituted in the criminal action except when there is reservation, waiver, or filed ahead of the criminal action. If the acquittal is because the quantum of evidence required was not established by the prosecution, the accused can still be civilly liable because what was not established by the prosecution was proof beyond reasonable doubt. Relate to the Vizconde case where the SC did not say that the accused were not the author of the crime but merely that the proof beyond reasonable doubt was not established by the prosecution. Ex. Bar question 2010: Lorenzo in a buy bust operation swallowed the shabu. He was brought to the PGH and was about to be operated. Is the shabu 54

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW admissible in evidence? The SC initially said that it was inadmissible in evidence because there was violation of the due process of law when accused was forced. On the other hand the SC said that it was admissible because the right against self incrimination covers only testimonial compulsion. Paraffin Testing is it admissible in evidence? It is competent but not conclusive because nitrate can be produced without firing a gun. But there is a possibility that the accused fired the gun. There is also no violation of the right against self incrimination in paraffin testing because there was no testimonial compulsion. DIFFERENTIATE RELEVANCY AND MATERIAL: RELEVANCY: it has logical connection with the factum probandum and factum probans. MATERIALITY: simply look at the four corners of the pleading, (complaint, answer, reply) if it is not found in the pleading, it is IMMATERIAL. Refers to the matters raised in the pleading. Admissibility of evidence does not mean that the evidence is credible. Credibility- believability of the evidence. Refer to the weight of the evidence or probative value. TYPES OF ADMISSIBILITY OF EVIDENCE: 1. MULTIPLE ADMISSIBILITY – a particular evidence is admissible for 2 or more purpose. Ex. A statement of a person right after he was stabbed by Juan dela Cruz. If he told the person who brought him to the hospital that it was Gerry who stabbed him, this is a dying declaration. But if he did not die, this evidence is admissible as a part of res gestae. Or if he says that he was stabbed by Gerry because he shot him on the foot. This is also admissible as declaration against interest. 2. CONDITIONAL ADMISSIBILITY – the admissibility of evidence is not apparent at the time it was presented or offered. So the party will ask the court that meantime to allow the evidence subject to the condition that the party will establish the connection of the evidence with the fact sought to be proven and subject to the undertaking that if the connection is not established by the party, such evidence will not be admitted by the court. Ex. action for recovery of condominium in Bellagio filed by A against B. During trial A testified that the condominium was bought by C from D C and D are not parties to the case. So B will object on the ground that it is irrelevant and immaterial because it is not within the issues alleged. The court is now presented with the situation where it will stop the hearing and ask the party to establish whether there is relevance between C buying the property from D or the court will allow the presentation of the testimony of A that C bought the 55

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW condominium from D in the meantime subject to the establishment of a connection of the testimony of A on the recovery of the property. 3. CURATIVE ADMISSIBILITY – if there is inadmissible evidence which was allowed or admitted by the court over the objection of the other party, in order to cure the injustice to other party, the court will also allow that other party to explain or rebut the testimony or present inadmissible evidence likewise. Is there a vested right in the rules of evidence? Can the rules of evidence be changed or modified? Yes, pursuant to the power of the Court to promulgate rules concerning pleadings, parties and as such by virtue of the doctrine of necessary implications, the court can change, modify or revoke the rules on evidence. Can you stipulate on the rules on evidence? Yes as long as it is not contrary to law, public policy or prejudicial to a right a third person. KINDS OF EVIDENCE: 1. DIRECT- does not need inference anymore because it directly proves a fact. 2. CIRCUMSTANTIAL- inference is needed from other established facts. Do not talk about circumstantial evidence when referring to only one circumstance. Plurality of circumstances. Ex. Testimony of A having witnessed Mr B killing Mr. C that is already direct evidence. But if we have a situation where at 5pm a student entered the classroom at 6:15 a janitor entered the classroom at 6:30pm the janitor came out of the room running, at 6:45 the janitor reached the gate and was seen with blood by the guards. This is circumstantial evidence, a combination of all these circumstances will produce a conviction beyond reasonable doubt. -Corroborative and Cumulative evidence presupposes that there are additional evidence. 3. CORROBORATIVE EVIDENCE are additional evidence of a different kind tending to prove the same point. Ex. Annulment of Deed of Sale. If B denies signing the deed of sale but A says that B sign the document. A witness who say he saw B sign the document is a testimony evidence and later on that evidence was submitted to an expert opinion and came out with opinion. So these are evidence of different kind which tends to prove the same point. 4.CUMULATIVE EVIDENCE- evidence of the same kind. Ex. Testimonies of two or more witness seeing Mr B. sign the document. 5. PRIMARY EVIDENCE – refer to the original instrument. Best Evidence Rule where the subject of the inquiry is the content of the document. 6. SECONDARY EVIDENCE- inferior to the primary evidence.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW 7. OBJECT /REAL/OPTIC EVIDENCE addressed to the senses of the court. It can be viewed, examined by the court. - can be offered only after the presentation of evidence in chief. The party offering the documentary evidence has already terminated with the presentation of evidence in chief. It is offered in writing or orally. Ex. tombstone offered as object and documentary evidence If what is being offered is the letters written on the tombstone, it is documentary, if what is being offered is the stone attached to the womb it is an object. Optic evidence- refers to the real thing. Ex. gun in the killing. Bullet slugs found in the crime scene. It is the best, or highest form of evidence because it address to the senses of the court. It can be offered either as object or documentary evidence. 8. DOCUMENTARY EVIDENCE–Any material. It need not be in writing. - It must be authenticated, show the origin of the evidence. It must have been offered and admitted by the court. It may refer to any material containing words, figures or letter offered as proof or evidence. It may be a contract, letters, books. secondary rule and parol evidence

Take note of the best evidence rule,

a. BEST EVIDENCE RULE/ ORIGINAL DOCUMENT RULE, ORIGINAL WRITING RULE, CONTENTS OF ORIG DOCUMENT RULE: -applied only if we refer to documentary evidence. It is not applicable to object evidence. 2 questions to ask in determine whether BER applies: a. Is there a document which is involve in the case such as writing, etc b. What is the subject of inquiry? Is it the content of the document? If yes, BER applies BER tells us that if the object of inquiry is the content, no other evidence is admissible but the original document. Purpose is for the prevention of fraud. Moran states that if the party is in possession of the original and withholds it, the presumption is to commit fraud. 9. TESTIMONIAL EVIDENCE 10. POSITIVE EVIDENCE – presupposes that the witness affirms that a fact did or did not occur. Ex. A says he saw C kill B

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW 11. NEGATIVE EVIDENCE- presupposes that witness denying having seen the occurrence of an fact. QUANTUM OF EVIDENCE: 1. PROOF BEYOND REASONABLE DOUBT – it does not mean absolute certainty is required but ONLY MORAL CERTAINTY- that degree of proof which produces conviction in an unprejudiced mind. Proof beyond reasonable doubt is needed to cover up a disputable presumption that is the presumption of innocence because the Constitution says that every person is presumed innocent until the contrary is proven otherwise. That otherwise refers to proof beyond reasonable doubt. In criminal cases, the application of equipoise rule which states that the scales of justice must tilt in favor of the accused. This also applies in civil cases 2. CLEAR AND CONVINCING EVIDENCE- for impeachment proceedings. It is not civil or criminal in character but sui generis. It is less proof beyond reasonable doubt but more than preponderance of evidence. It is intermediate. Cases where SC applied clear and convincing evidence. a. 215 SCRA 808 Manalo vs.Roldan-Confessor b. Govt of Hongkong Special Administrative Region vs. Judge Olalia – granting bail in extradition cases requires clear and convincing evidence ***** c. China bank case- to rebut a disputable presumption d. To prove insanity e. To prove a denial f. To prove an alibi g. To prove perjury h. paternity or filiation **** i. to prove fraud j. To prove self defense k. consent in warrantless search l. to contradict a notarized document 3. PREPONDERANCE OF EVIDENCE - presupposes that there is a superior or more convincing evidence presented by the other party. This is required in civil cases. How do you determine that the party has established preponderance of evidence? Look at the evidence of the parties. Whichever is more convincing or superior. 4. SUBSTANTIAL EVIDENCE – required in administrative bodies or quasijudicial agency. This are the amount of evidence that are adequate to support a conclusion. In Guevarra vs. Commissioner Eala , the love letter of Eala to Irene Guevarra. In order to disbar the quantum of evidence is 58

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW preponderance of evidence; 529 SCRA 1. In 529 vs. 216 Quantum of evidence in removing a judge is proof beyond reasonable doubt. Rules of Evidence of Rules of Court, the rules of evidence shall be construed liberally in order to promote a just, speedy and inexpensive disposition of the case. There is no vested right in the rules of evidence. BURDEN OF PROOF – refers to the obligation of the plaintiff or defendant to establish their case. Sec 1 Rule 131 – duty of the party to establish his claim or defense. Therefore when you speak of burden of proof, it is not only duty of the plaintiff alone. Ex. In civil case, the plaintiff claims 1M. It is his duty to prove that he is entitled to the IM. Necessarily it is the duty of the plaintiff to prove his claim for 1M. If defendant says that he has already paid the 1M. Who’s burden of proof is it to establish his defense that he has already paid the 1m? In Vitarich Corp vs. CA the SC said that it is the duty of the defendant to prove that he has already paid the obligation. In other words, when we talk about burden of proof, whatever is written in the pleading, that is your burden of proof. But in criminal case its not the same because the burden of proof is on the prosecution because of the presumption of innocence. But is there an instance where the defense has the burden of proof? Yes, when self defense is invoked. It is now his duty to prove that the elements of self defense are present. Burden of evidence on the other hand refers to the exigencies or developments during trial. Burden of proof is the onus, the obligation of the party presenting his claim or defense. He who alleges must prove. PRESUMPTIONS: Presumption Juris tantum (disputable or rebuttable) and Presumption Et De Jure (Conclusive) DISTINCTION FROM INFERENCE: Inference – when we refer to a given set of facts. But when we talk about presumption that is mandated by law or provided by the rules. Inference no legal effect while presumption has legal effects. When we talk about presumption et de jure, the very basis of presumption et de jure is the principle of estoppel such that a person who by his act or declaration or omission led another person to believe that such act, declaration omission as true and that other person has acted upon such action, 59

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW declaration or omission, he cannot later on deny his act, declaration or omission. Or a situation a tenant and a landlord. JUDICIAL NOTICE: Matter need not be proven: what are the instances wherein a person can win the case without presenting evidence. 1. JUDICIAL NOTICE- a situation wherein what is known need not be proven. Mandatory judicial notice this substitutes the presentation of evidence already. Are you required evidence that Malolos is capital of Bulacan? Or that there are three branches of the govt. etc. No more. These are matters which the court can take judicial notice without a motion. Judicial notice is discretionary in character. It requires a motion or manifestation in order for the court to take judicial notice either during trial or after trial but before judgment or on appeal. What are the judicial notice which are discretionary in character? a. public knowledge b. matters capable of unquestionable demonstration c. those matters which are known to the judges Knowledge of the judge is not the judicial knowledge required by the court. Can the court take judicial notice of the municipal ordinances or rules of quasi judicial bodies or that rape can be committed in public place or of foreign laws. When we talk about foreign laws, the court cannot take judicial notice of foreign laws. It must be alleged and must be proven. If it has been alleged but not proven, the effect is that there is a presumption that the foreign laws are the same as Philippine laws under the DOCTRINE OF PROCESSUAL PRESUMPTION. Are there exceptions: 1) generally accepted principles of international laws under the 1987 Consti. 2. Spanish Code or Codigo Civil 3) Can the court take judicial notice that rape can be committed in public place? In the case of People vs. Tongson and People vs Barcelona (1991 and 1998) SC state that the RTC may take judicial notice of the fact that rape can be committed even in a public place. The court take judicial notice that a man overcome by perversity and beastly passion chooses neither time or place occasion nor building. Can the court take judicial notice that the street name of metaphetamine hydrochloride is shabu? In the case of People vs. Pacasim 22 SCRA 630, the SC say the court can take judicial notice that the street name of metaphetamine hydrochloride is shabu considering the chemical composition of shabu.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Can the court take judicial notice of municipal ordinances. Yes, it is part of matters capable of unquestionable demonstration. 2. JUDICIAL ADMISSION- another type of evidence which need not be proven. It may be written or verbal but must be made by the parties to the same case or proceedings and in the course of the proceeding. If a party admitted a relevant fact in another case even though between the same parties, it is not considered as judicial admission but extrajudicial admissions. It may be contradicted in two ways only (1) it was improper or due to palpable mistake (2) that no admission was made by the parties. 3. allegations in the complaint which are immaterial to the issue. 4. Facts admitted or not denied in the answer 5. Agreed stipulation of facts between parties 6. Res ipsa loquitor 7. Facts which are within the knowledge of the other party What is the effect of the admission made by a party in a original pleading which was later amended. The admission in the original complaint which was no longer admitted in the amended complaint it becomes an extrajudicial admission. As such, it has to be offered to the court to consider as evidence and it has to be proven because there was already an amended. What is the effect of the admission of the counsel in a case? It binds the client. But if there is already deprivation of property without due process of law, in which case, the SC says it will not bind the client. ESTOPPELS BY SILENCE- implied admission- apply doctrine of estoppels. So where a party was being accused of stealing something and did not deny it when he has the opportunity to do so will be considered as an implied admission. Rule 25 & 26 If we talk about request for admission, you will have to require the other party to admit matters in the complaint. Failure to file an answer /sworn statement will result to admission of the relevant or matters requested to be admitted. The same true with writer interrogatories, failure to deny will result to admission by the other party. Take note of the DOCTRINE OF ADOPTIVE ADMISSION: applied in the case of J. Ejercito vs. Desierto or ERAP vs. GMA: in the case the SC applied this doctrine. In these cases, the SC ruled that actually ERAP implied resigned from office taking into considerations the so called TOTALITY OF CIRCUMSTANCES the posterior acts of Erap before during and after he left Malacanang will point to only one conclusion, the fact that he intended to resign and indeed resigned from office when he left Malacanang. The group of ERAP refused to accept this theory on the ground that resignation is never 61

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW implied but in fact be express since there is a requirement of acceptance of the resignation. The SC considering and recognizing and using the Angara diary about the time ERAP left Malacanang or downfall of ERAP. In his diary he stated that ERAP saying “he was tired…” and this statement was stated in the diary which was later published. The SC applied and considered this to rule that ERAP resigned from Office. The rules of evidence says that newspaper articles are hearsay. Jovito Salonga in his book in Evidence said that newspaper article is hearsay because they are twice removed because first from the person and published in the newspaper so there is no personal knowledge. But oddly in the case of ERAP the SC say that the admission made there was considered an adoptive admission because ERAP did not object. In fact he adopted what was stated in the Angara diary and therefore an exception to the hearsay rule. So the SC said in Ejercito vs. Desierto that an ADOPTIVE ADMISSION is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. The effect or consequence of the admission will bind also the party who adopted or espoused the same. Distinction between Admission and Confession: Confession is acknowledgment of guilt, admission is broader in character; any relevant fact that is subject of a confession. SC says that a confession is a specie of an admission. It forms part of an admission. 3 MAJOR KINDS OF EVIDENCE: 1. Object/Real Optic Evidence 2. Documentary Evidence 3. Testimonial Evidence SOURCES OF EVIDENCE: 1. Judicial Notice 2. Judicial Admission 3. Presumptions even if disputable if it was not rebutted or present clear and convincing evidence 4. Implied admission of guilt in criminal cases by mere act of offering compromise As a rule, no evidence will be appreciated or considered by the judge in rendering a decision unless marked during pre-marking, presented during the trial, authenticated by a competent witness, offered, admitted by the court. It is very impt to note that when these 3 kinds of evidence is offered, an documentary/object evidence can be offered only after the presentation of 62

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW evidence has been terminated. It can be offered either in writing or orally. On the other hand, testimonial evidence is offered before a witness is allowed to testify. A witness can only testify based on personal knowledge. Testimonial evidence is offered orally, but it can be offered in writing if there is a judicial affidavit. If the parties agreed to the submission of a judicial affidavit which shall form part of the direct examination which will in fact be in lieu of presentation, you state the purpose of the testimony of the presentation of the witness in the judicial affidavit. You will simply ask the witness to identify the affidavit, confirm the veracity of the allegations contained therein. If documentary, object and testimonial evidence were denied admission by the court, invoke the RULE OF TENDER OF EXCLUDED EVIDENCE. It is a remedy of a party whose evidence has been denied admission by the court. This can be done by filing a manifestation or orally by moving that the party will instead proffer the evidence. The purpose is to allow the appellate court later on to consider it in rendering the evidence. If the witness answers the questions before you were able to object, move for the striking of the answer. OBJECT/OPTOPIC EVIDENCE: refers to the real thing. Ex. gun used in shooting the victim or the bullets. The object is the highest form because it address to the senses of the court. It caters to the 5 senses of the court. If A stabbed B, the knife used is the object evidence. If there is a conflict between object and testimonial evidence, it is the object evidence shall prevail because it is the highest form. Requisites for the admissibility of object evidence: 1. 2. 3. 4. 5.

marked during pre-marking presented It must be authenticated, to show its origin offered Admitted by the court

CLASSES OF OBJECT EVIDENCE: 1. UNIQUE OBJECT EVIDENCE- there is readily identifiable marks in the evidence. Ex. 45 cal pistol serial number 2. OBJECTS MADE UNIQUE- is a category of evidence which has no identifiable marks or unique characteristic but were made unique by the court. Ex. knife used in stabbing if the person put an identifiable mark on the knife such as putting his name. 3. NON-UNIQUE OBJECT EVIDENCE- those which cannot be marked because it is impossible to do so. Such as blood stains, water.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW DEMONSTRATIVE EVIDENCE- is not a real or object evidence because it is merely a demonstration or presentation of a particular evidence but it falls under the category of object evidence since it can be examined or viewed by the court Ex. ocular inspection conducted by the parties subject to the discretion of the court. If allowed by the court it must be done in the presence of the parties. -

Can come in the form of a map, diagram because the map represents a particular place. Demonstrative is not a written evidence but incorporated in object evidence.

Object evidence may be offered either as a documentary or object evidence. A written expression stated in the object evidence can be offered as documentary evidence because it is not limited to a document. It refers to any material as proof of its contents. SC referred to the book of Fortunato Ulep citing a tombstone which can be offered both as documentary or object evidence. if what is offered is the written statement on the tombstone, it is being offered as documentary evidence. But if the tombstone is attached to the tomb, it is offered as object evidence. DOCUMENTARY EVIDENCE: Under the Rules on Evidence, if we talk about documentary evidence it need not be in writing. Take note of the rule on relevancy, competency, offer and admission of this documentary evidence. Take note of 3 impt rules, BER, SECONDARY EVIDENCE RULE AND PAROLE EVIDENCE. BEST EVIDENCE RULE/ ORIGINAL DOCUMENT RULE, OR ORIGINAL WRITING RULE OR CONTENTS OF ORIGINAL DOCUMENT RULE OR CONTENTS OF ORIGINAL WRITING RULE. This is applied only if we are talking about documentary evidence. It is not applicable when we refer to object evidence. In order to determine whether the BER applies, the first question to ask is whether there is a document involved. It is not enough that there is a document involve. If the subject of the inquiry is the contents of the document BER applies. If the subject of inquiry is the contents of the document, no evidence is admissible except the original document. The purpose of the BER is to prevent fraud. Justice Moran says that if the party is in possession of the original document and withholds it, the presumption is that the original document is being withheld for fraudulent purpose. Acebedo Optical vs. NLRC. Take note of the concept of original document. When is a document original? The document is original if the contents of which is the subject of the inquiry. When it is executed on or about the same time, with identical 64

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW contents, it is regarded as original or what is known as duplicate originals. What if the document or papers is reproduced by carbon sheets, are they original documetns? Yes People vs. Taya If the document is original it will prevail over Xerox copy. In NYK Intl Corp vs. NLRC – SC said that a Xerox copy even if stamped with the words certified true copy, it is not authenticated original. Heirs of Lourdes Samantan vs. CA - pleadings filed via fax machine are not considered original. They are not admissible as evidence as there is no way of determining whether they are original. Unsigned computer print outs when they are not authenticated are not reliable. They are self serving evidence which should be rejected. Ex. During the trial Mr. A. testified that Mr. B gave him a photocopy of a Deed of Sale asked him to read it and to sign because it contained onerous stipulations. During trial he was asked if he was shown a photocopy of the deed of sale if he can recognized it. Counsel presented to Mr. A a copy of the document. Defendant objected on the presentation of the photocopy as this will violate the BER. SC overruled the objection because the subject of testimony of MR is a photocopy of the Deed of Sale, since the subject of inquiry is the photocopy, the BER is not the original but the photocopy of the Deed of Sale. Hence, even a photocopy can be the best evidence because the BER is dependent on the document of the inquiry. In another case of buy bust operation the policeman appeared and testified in court and was asked about the marked money used in the buy bust operation. So the prosecution showed photocopies of the marked money and the policeman identified it. What is the nature of the photocopy of marked money? They are object evidence hence the BER does not apply because BER applies only to documentary evidence. The marked bills are admissible in evidence as held in People vs. Tandoy. Exceptions to BER or instances when substitutionary evidence may be presented 1. When the original document is lost, destroyed or produced in court without bad faith on the part of the offeror. 2. When the original is in the custody or under the control of the party against whom the evidence is offered; 3. When the original document consists of numerous accounts or voluminous documents and the facts to be proven is only the general result of the whole. Secondary evidence does not refer to a photocopy. Secondary evidence rule tells us that if the premises have been laid for the presentation of the secondary evidence you can present a copy of the original or another document with a recital of contents of the original or testimony of a witness as to the

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW contents of the original document. Therefore secondary evidence does not refer automatically to a photocopy. 4. When the original document is a public record in the custody of a public officer or in the public office SECONDARY EVIDENCE OR SUBSTITUTIONARY EVIDENCE Do not talk about secondary evidence unless the basis has been laid for its presentation. When the original document is lost, destroyed or cannot produced in court without bad faith on the part of the offeror, you have to lay the basis first by establishing the fact of its existence, the fact of execution of the original document, the cause of the unavailability before you can be allowed to present the contents of the original document in a substitutionary evidence. Laying of predicate refers to the impeachment of an evidence, laying the basis refers to secondary evidence. In Villa Rey Transit vs. Ferrer- SC stated that following should be established. 1. 2. 3. 3.

The opponents possession of the original Reasonable notice to produce the original Satisfactory proof of the existence of the original Failure or refusal of the owner to produce the original

It is not necessary for a party seeking to produce secondary evidence that he establish that the original is in the actual possession of the adverse party. It is not required that the adverse party should admit that he has possession of the original document because the SC in Villa Rey Transit stated that it is enough that the circumstances indicate that the writing is in adverse party’s possession or under his control. Neither is the party entitled to the custody of the instrument should on being notified that it should be produced admit having it in his possession. In an action for specific performance filed by A against B, A was asking the court to compel B to deliver a parcel of land to A considering that there was a deed of sale executed between A and B. B on the other hand denied that he had executed a Deed of Sale in favor of A. So the issues was whether or not a parcel of land was sold by B to A. What is the evidence that A should submit? The original copy of Deed of Sale. Can A present other document other than the deed of sale? No because the subject of the inquiry is the Deed of Sale. Can A present a photocopy of the Deed of Sale? No because the subject of inquiry is the contents of the Deed of Sale. But when can A present a substitutionary or secondary evidence? If A has already laid the basis for presenting secondary evidence. If there are numerous accounts or documents in an action for collection of sum of money in the amount of P500,000 but in order to establish 66

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW his right over the 500,000 he has to present 150 document to prove the same or if A borrows money from B, he has to issue checks as evidence of the loan. Are you required to present the checks? Just prepare 5 page summary of all the checks issued by A to B or document that will establish A’s obligation to B. This summary can be submitted to the court in the form of a substitutionary or secondary evidence, But A must be sure that if B demands the presentation of the 150 documents or 500 pieces of check he can show it because B is not bound by the summary presented. Ex Bar exam 1992: Ajax Corp sued in the RTC for a supposed right of way against Mr. A. Ajax claims that he has been paying consideration for the right of way. Ajax corp presented a retired auditor and testified that during the time he was still working with Ajax corporation he was the one who delivers the money as part of consideration for the right of way pursuant to a written contract. Because it was the testimony of the auditor, the counsel inquired whether he can identify the written contract allowing right of way to Ajax corp. But what was presented only was a photocopy of the deed or instrument granting right of way to Ajax corp. After it was identified it was formally offered as part of his testimony but was object by Mr A so Ajax corp availed of the tender of excluded evidence. Can Ajax claim that he has sufficiently met the burden proof to establish the right of way? The photocopy of the agreement granting right of way cannot be presented right of way. The basis should first be laid before presenting the document. DISTINCTION BETWEEN SECONDARY EVIDENCE AND SECOND HAND EVIDENCE: SECONDARY EVIDENCE- it refers to evidence that is inferior to the BER or original document. SECOND HAND EVIDENCE- refers to evidence proceeding from the mere repetition of what the witness heard from others. It refers to hearsay evidence. But when presentation of secondary evidence is not objected upon by the other party such failure to object shall be deemed a waiver therefore that secondary evidence will be considered a primary evidence. The proper time to object to the presentation of the secondary evidence is from the time it is offered as evidence because if objection is made immediately, the other party will look for the original document. But if objection is not made right away there can a possibility that the accused will be in lactus in memoria. So if he forgets and offers the evidence, that’s the time to object invoking BER. This waiver of objection as contemplated in the Heirs of Teodoro dela Cruz vs CA- refers to the waiver of objection to the admissibility of secondary evidence after the termination of the evidence in chief at the time of the offer of documentary evidence 67

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW If we talk about BER- computer printout readily by sight can be considered an original under the rules on electronic evidence. ELECTRONIC EVIDENCE RULE: rule applies only to civil actions or proceedings, as well as quasi judicial and administrative cases. It does not apply in criminal case Rustico Ang case. Asked in 2010 bar (dying declaration) As a rule it is applicable, but not in criminal cases. Rule 1 Sec 2 of AM 01-7-01 SC specifically provides that it applies only in civil actions or proceedings as well as quasi judicial and administrative case. It is broader in character compared to rules of evidence. Evidence is a means sanction by the rules in ascertaining in a judicial proceeding the truth respecting a matter. Electronic Evidence – Electronic data message- is interchangeably used with electronic evidence as enunciated in Natl Power Cor. vs. Padilla 520 S 412. If we talk about electronic evidence it includes digitally signed document, a print out which reflects the electronic data message. In NCC Industrial Sales Corp. vs. Sanyo Oct 7, 2007 – SC the term electronic document does not include faxmile transmission. When congress drafted the law it excluded the older form of methodology. 1. faxmile 2. telegraph 3. Telex 4. Telecopy In Villadallion Magtolis vs. Salud 496 SCRA 439 – text message have been classified under ephemeral electronic communication and proven by testimony of the person who has a party to the same or has knowledge to the same. Take note that electronic document may be signed by electronic signature. How is it authenticated? By presenting evidence that a process was utilized to establish a digital substitute and verified the same. Who has the burden of proof?---The person seeking to present an electronic document has the burden of proving its authenticity. 2003 bar exam: When is electronic document recorded is considered as the original under the BER. For the application of BER, an electronic document is considered an original if it is an output or printout readable by sight or other means shown to reflect the data accurate is considered an original document which falls under the BER 2003 bar exams: Admissibility of Electronic Document- whenever our rule on evidence refers to the term writing, document, instrument or in any other 68

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW forms of writing such term will include electronic document. It is admissible if it: 1. complies with the rules of admissibility with rules of court and similar laws 2. authenticated in the manner prescribed in the rules. Authenticity of any private document must be proved by evidence that it had been digitally signed and other security measures have been applied. The rules on electronic evidence recognizes business records as exception to the hearsay rule. Rule 8 Sec 1 provides that electronic document can be notarized and shall be considered as a public document and proved as a notarial document. There is no jurisprudence there yet especially on the requirement for the appearance of the party before notary public. Is electronic evidence covered by the rule on privilege communication? Yes the privilege communication is not lost by the mere transmission of message. 3. TESTIMONIAL EVIDENCE -Termination of presentation of evidence in chief need not be completed before the offer of testimonial evidence. Offers the testimony of witness as evidence. Witness can only testify on matters of personal knowledge. If testimony of witness is not offered and the other party conducted cross examination, do not conduct a re-direct and move that the testimony is expunged from the record. If the object and testimonial evidence were offered and denied by court, invoke Sec 40 Rule 122. It is offered at the time the witness is offered to testify during direct examination. In other words the testimony of the witness is offered before questions are asked. Unlike in documentary evidence, this is offered after the presentation of evidence in chief. If we talk about testimonial evidence, every person who can perceive and can convey his perception to others can become a witness. What is important here is personal knowledge and capability of the witness to perceive. In one case the SC stated that when you talk about perceiving it refers to the person’s senses. The rules of evidence provides that a person’s religious, political and interest in the case are not valid grounds to disqualify a person to become a witness. In a case, the SC said that close knit relationship is not a ground to disqualify a witness from testifying. In one case a father was accused of rape. During trial he presented his wife and son to establish a fact that at the time of the alleged rape was committed these people were with him in Tagaytay. This was objected to by the prosecution but the SC said that close relationship is not a ground to disqualify a person from testifying. 69

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW The same is true in a case for murder where Mr B testified that he saw Mr A pour the poison in the wine that Mr. A drank. At the time Mr. B was about to testify the prosecution objected on the ground that he was previously convicted of perjury. The SC said that previous conviction for perjury is not a ground to disqualify a person from becoming a witness. Even in one case, loose moral is not a ground to disqualify a person as a witness and neither is a prostitute disqualified from becoming a witness. People vs. Mando- a prejudiced witness is not disqualified from appearing and testifying in court. DISTINCTION BETWEEN COMPETENCY AND CREDIBILITY Competency- witness who possess all the qualifications and none of the disqualification provided by law or the rules. Credibility- refers to the believability, trustworthiness and probative value of the testimony of the witness. Hence, political and religious view are not disqualification but maybe taken into consideration on the credibility. Mental condition at the time of production or examination of the person who is to testify. Incapable of perceiving facts and relate the same- mental maturity of the witness. Refer to the difficulty in perceiving the facts they are about to testify. People vs. Buli- intoxication does not affect the capacity of the witness to testify, except where there is evidence that shows that the witness’s intoxication deprives him from testify People vs. Canolla- mental retardate is not disqualify from becoming witness as long as his senses can perceive and can convey his perception in court, he can become a witness. DISQUALIFICATION TO BECOME A WITNESS: MARITAL DISQUALIFICATION RULE (MDR)- it is indispensable that the marriage is subsisting at the time one of the spouse would testify against one. Any of the spouses cannot testify for or against, except in civil case, or criminal case by one against the other or by one descendant against the ascendant. Common law relationships disqualification.

are

excluded

from

the

coverage

of

the

As long as the marriage is existing and subsisting, the marital disqualification rule applies. It is immaterial that the matters involve to be testified are confidential or not. EXCEPTION: 70

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW 1. Child abuse case filed by daughter against step-father – the wife can testify against the abuse committed. If the case is between step-son and step father for physical injuries- wife can testify as this involve a case of descendant against a step-parent. But if the case involves a civil case filed by a step son against step father, this does not fall under the exception. When you refer to civil case it refers only to the spouses. The exception should be civil cases between spouses. 2. MARITAL PRIVILEGE COMMUNICATION RULE (MPCR) The prohibition applies during or after the marriage: Qualification: communication received in confidence. The moment the spouse gives this information in confidence, they are bound by the rule. Bar question: Allan and Narita married on Jan 28. Two months later, Narita admitted that Liza is not her niece but her daughter out of wedlock. After sometime, Maria wife of Basilio (father of Liza) found out about the daughter and Maria, wife of Basilio filed a complaint against Basilio for concubinage. During the trial, one of the witnesses presented was Rita, and this was objected to Basilio invoking the marital privilege Communication Rule. Can Basilio invoke the MPCR? SC said No, because they were not married in the first place. DEAD MAN STATUTE- OR SURVIVOR RULE- if death closes the lips of the person it also closes the lips of the other person who are going to testify against the deceased. This does not apply to a mere witness but only to parties to whom the case is filed PARENTS or FILIAL DISQUALIFICATION RULE - applies from parents to great grandparents. Who are covered: 1. Parents 2. Other direct ascendants- grandparents, great grandparents, and great great grandparents 3. Children 4. Direct descendants- grandchildren, great grand children and great great children People vs. Que-the step daughter included in the filial privilege rule. EXCLUDED : - they cannot be compelled but they can voluntarily testify. 1. Relatives by Affinity 2. Brothers and Sisters 3. Aunt, Uncles, Nephews and Nieces 71

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW 4. Cousins of whatever degree 5. Collateral Relatives. CLIENT AND LAWYER RULE Attorney’s secretary, stenographer and clerk fall within the contemplation of the prohibition. Consent of client and lawyer is needed. This applies even there is no formal engagement yet as long as there is already a consultation, or communication preparatory to the engagement of the services. This also applies to paralegal, associate etc. This applies both to civil and criminal cases. PHYSICIAN AND PATIENT RULE: 1. person authorized to practice medicine, surgery and obstetrics are the only the ones covered. This contemplates a civil case only. PRIEST AND PENITENT RULE= priest cannot testify on the confession. Applies only between the priest and penitent, the testimony of the sacristan who overheard the confession and later testifies on it is hearsay but can be considered as admissible as INDEPENDENT RELEVANT STATEMENT- as to the tenor or the fact that such statement was uttered. Rule 132- take note in relation to impeachment case. Take Note: Rights of the witness, obligations of the witness, unwilling and hostile witness, impeachment of a witness. DISTINCTION BETWEEN LEADING AND MISLEADING QUESTIONS. Misleading question are not allowed under any circumstances. Leading questions are allowed. RULES ON HEARSAY: A person can only testify based on personal knowledge. It presupposes the use of 5 senses. If not based on personal knowledge, it is hearsay and therefore inadmissible. In court witness heard on what the outside person said, he can testify on the what the outside person has said. EXCEPTION: INDEPENDENT RELEVANT STATEMENT- the testimony will be considered as part of the narration of facts of the petitioner. DOCTRINE OF ADOPTIVE ADMISSION- a third party’s admission is part of the party’s testimony embracing it.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Gma vs. Erap; Erap vs. Disieirto – refer to above discussion Hearsay vs. Opinion- As a rule, opinion is not admissible except opinion of expert witness. Handwriting of a person- can be testified by an ordinary person. EXCEPTIONS TO HEARSAY RULE: because of necessity and convenience. 1. DYING DECLARATION- the fact is declaration and consciousness of an impending death. The declarant must have died otherwise it will be considered as parts of res gestae. No particular form for dying declaration. No need for signature, thumbmark provided that the statement refers to the assailant. Declaration should concern the surrounding circumstances of his death. Case: Robbery in Trinoma committed by A, B and C who were eventually arrested. During the arrest A was shot. Thinking that he will die, A divulged his companions. SC stated that the statement of Mr A is not a dying declaration because it does not refer to the surrounding circumstances of Mr. A. 2. DECLARATION AGAINST INTEREST- Under ordinary circumstances, man wants to talk good things about him. Hence, the moment a person utters something against his interest, this is considered as declaration against interest. 3. PART OF RES GESTAE -all these are hearsay, but are considered as exception because of its trustworthiness, 2 Parts: 1. SPONTANEOUS STATEMENT- it was mentioned during a startling occurrence or immediately thereafter. No opportunity to fabricate the statement. 2. VERBAL ACTS: the res gestae is the equivocal act. It must be accompanied by a statement. Romy vs. Hugis – a judge inside a favorite restaurant with B. B handed an envelope with money. In order to consider it as exception to the hearsay rule it must accompanied by a statement. 4. TESTIMONY IN A FORMER PROCEEDING. Exception to hearsay and right of confrontation. The testimony given in former proceeding and the witness must be have been crossed examined by the other party. In a case for collection of sum of money, the plaintiff failed to appear during pre-trial and was dismissed but was refiled since the dismissal was without prejudice. Since the witness has already testified in the previous proceeding, such testimony may be used in the present proceeding. 5. OPINION RULE- In order that a witness be considered as expert witness, it must be shown to the satisfaction of the court that the witness 73

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW presented possess special knowledge, skill, in which case is testifying as an expert witness. In other words, the witness must first be qualified before he can be presented as an expert witness. The court is not bound by testimony of the expert witness. SC said at most it is only advisory and not conclusive. If the other presents an expert witness, the remedy is present another expert witness. Do not conduct a cross-examination without studying the expertise of the witness. 6. OFFER OF COMPROMISE unlike in civil cases is implied admission guilt. If you want to enter into a compromise, let a relative negotiate the compromise so its easy for the accuse to disown it later. “TENDER OF EXCLUDED EVIDENCE” Remedy in case offer of object and testimonial evidence are denied. Purpose: to allow the appellate court in deciding on the case. Judicial notice is considered as an evidence. Cannot be proven but appreciated by the court. Judicial Admission- Presumptions are source of evidence even if disputable. If it was not rebutted it is considered as conclusive. Offering of compromise in criminal case is evidence. No evidence is appreciated by presiding judge unless it was marked during pre-marking, presented during trial and authenticated by competent witness, offered and court ruled to admit the evidence. It is very impt to note when these 3 major kinds of evidence is offered by a party. A was killed by B. The prosecution presented the bullet during trial to the police officer. The fiscal terminated the testimony and rested the case. Judge rendered the decision acquitting the accused. He did not mention exhibits A and B or the bullets. Private complainant filed admin case against judge in failing to consider the bullets slugs in the deciding on the case. Was the contention of the private complaint correct? Judge should not be held administrative liable. Exhibits A and B were merely marked as exhibit and not offered as evidence. Ergo, it should not be considered in rendering the decision. CHAIN OF CUSTODY OF DRUGS: Classic case: Alabang Boys Chain of Custody Rule refers to RA 9165 Sec 21

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW There should be no unbroken chain of custody from the time of seizure of the dangerous drugs up to the time the police came into possession of the drugs up to the time it was brought to the forensic laboratory, up to the time it was presented in court and up to the time the court rendered its decision. It must be shown that there is no occasion that other person outside the chain was able to get hold of the drugs as evidence. Take note that the drugs must be destroyed. The rule on the chain of custody is for the purpose of preserving the integrity of the physical evidence and prevent the production of evidence that is not authentic. People vs. Sitco May 14, 2010 – SC there must be unbroken chain of custody from the accused to the police to the forensic chemist and finally to the court. People vs. De Guzman - 2011 case - the existence of the dangerous drugs is condition sine qua non for conviction. In prosecutions of illegal drugs the drugs taken or seized in the possession of the accused are considered the corpus delicate thus, it is impt that the dangerous drugs should be established to be the same drugs taken from the person of the accused and presented before during trial. Rule: No buy bust operation may be conducted without a valid search warrant. RA 9160 and its IRR – require that there must be a physical inventory, photograph of the seized drugs and marking of the seized drugs. Where are the inventory, photography and markings done: at the place where it was taken or seized if possible otherwise in the nearest police station. Noncompliance with this requirement of the chain of custody rule will cast doubt on the admissibility of the drugs. (De guzman case)A conviction may still be had as a matter of exception, if it can proven that the integrity and evidentiary value of the seized items were preserved. Non-compliance with the procedure may still result to conviction BUT ONLY AS A MATTER OR EXCEPTION. Under the IRR of RA 9160, if it can be shown that there is justifiable reason and that it can be established that the integrity and evidentiary value of the dangerous drugs have been preserved, then conviction can still be attained. Domingo Ulet vs. People (June 1, 2011) If the drugs are already in sealed plastic sachets, the police officer involved immediately place identifying marks on the cover. If the drugs are not in a sealed container, the officer is to place them in a plastic container, seal the container, and put his marking on the cover. In this way there is assurance that the drugs would reach the crime laboratory analyst in the same condition it was seized from the accused.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Accused was acquitted because none of the officers during the seizure marked the drugs taken. Although these police officers enjoy the presumption of regularity in the performance of their duty, this presumption is inferior to the presumption of innocence of the accused. Requisites during the seizing of the drugs as required by RA 9165 1. Inventory, marking and photography of the items seized should be done in the presence of the accused or his representative 2. There must be present the lawyer or representative of the accused 3. Representative from the media, 4. There must be representative from DOJ 5. There must be an elected public official People vs. Mags Mantawi (June 8, 2011) – there must be (1) testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence; and (2) witnesses should describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the item. DNA EVIDENCE: The rule on DNA evidence was passed on 2001. It constitutes the totality of the DNA profile of the person. If you talk about DNA evidence every person has a unique DNA except identical twins as decided by the SC in Vallejo vs. People If there an issue on paternity and filiation, where an illegitimate child who filed for illegitimate filiation, DNA is conducted. Or in crime of rape, DNA is conducted to check whether the biological samples left in the crime scene the totality of which is the DNA evidence is matched to the DNA evidence taken from the accused. If it will match that may result to a conviction. DNA evidence is applied in civil, criminal and special proceedings precisely because on the contrary, if we talk about the rules on the probate evidence we do not apply it in criminal cases. In the case of Rustico Ang decided by Justice Abad it was very clear that it applies only in civil cases and cases pending before quasi-administrative bodies. But in DNA evidence, the rules of evidence apply in civil, criminal and special proceedings. Take note that the Rules of Court and Rules of Evidence are suppletory in character when we talk about evidence. Case; Mr A committed Rape with Murder. In the crime scene he left his Tshirt, strand of hair and fingernail. A was charged in court and during the pendency the case, police officers took a strand of his hair, cut his nail and conducted DNA testing. After the conduct of the DNA testing, the result thereof were about to be presented by the forensic expert, but the accused objected invoking his 76

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW right against self-incrimination. In People vs. Yatba – the compulsory DNA testing does not infringe the constitutional right of self incrimination. When we talk about self incrimination we refer to testimonial compulsion. The cutting of nails and strand of hair is merely a mechanical act not compulsory testimony. Who may apply? 1. Any person who has legal interest in the litigation 2. the court motu propio The rule allowing motu propio order of the court conducting of DNA was modified in Jessie Lucas vs. Jesus Lucas (June 6, 2011). The SC clearly stated that during the hearing of the motion for the conduct of DNA testing, the petitioner must present prima facie evidence of paternity. The conduct of DNA testing is discretionary for the court. The court may not allow the conduct of DNA testing if there is already a preponderance of evidence on the part of the plaintiff. If the court grants the motion for the conduct of DNA testing, this order is not appealable. It is immediately executory. Remedy: file for certiorari under Rule 65 and also TRO because certiorari is not enough. Even if the accused has already been convicted and has become final and executory, the accused can still avail of the post conviction DNA testing. It is available to the prosecution and to the person convicted by final and executory judgment. Requisites: 1. The biological sample exists 2. Such sample is relevant to the case 3. The testing would probably result in the reversal of the judgment on conviction . If there is a post DNA testing and the result is favorable to the accused, what is the remedy of the accused? The accused convicted by final and executory judgment can file and avail of the issuance of writ of habeas corpus to be filed in the court of origin which court will conduct a hearing and upon finding merit in the petition will reverse, modify its ruling. In the case of Leo Echegaray- SC stated that when we talk about the concept of jurisdiction, it is not only the power to hear and decide the case but also the execution of the judgment and complete service of sentence. Since the court has not completed the service of sentence, the court a quo still has jurisdiction to try habeas corpus case. Probative value of DNA testing: Vallejo standards –bar 3x Vallejo vs. People of the Philippines; People vs. Vallejo –involves the rape/slay of a 9 yr. old. 77

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Vallejo standard: Guidelines in assessing the probative value of DNA samples: Memorize 1. How the samples were collected 2. How these samples were handled 3. The possibility of contamination of these samples 4. The procedure followed in analyzing the samples 5. Whether the proper standards and procedures were followed in conducted the test 6. Qualification of the analyst who conducted the test ***** DNA results in the case of Hubert Webb, Antonio Lejano, Joey Filart, Mr. Rodriguez, Fernandez, PO3 Abiog; Lejano et al. vs. People Dec 10, 2010 Webb asked for the acquittal on the basis of the loss of the semen specimen. He argued by invoking the Brady vs. Maryland, Youngblood vs. ArizonaThe accused is entitled to outright dismissal. The SC court in Webb case denied because the Brady case was overtaken by the Youngblood case. In the latter case, due process does not require the State to preserve the semen specimen although it may be useful to the accused unless the latter can show bad faith on the part of the prosecution or the police. When Webb et al raised the issue of DNA there was no rules at the time of the conduct of the DNA testing. But the SC observed that after the petition, Webb et al, although they had 2 opportunity to go to CA and SC, did not invoke DNA testing, although they included it in their appeal with CA, it was raised in the assignment of errors of the trial court in the rendering of judgment. None of the accused filed a motion for the conduct of DNA testing. This even when the SC has already passed the rules on DNA testing. The SC did not say that Webb et al are not the authors of the crime but it merely said that the quantum of proof was not met by the prosecution. Acquittal – This says that the accused did not commit the crime. Hence the accused is not liable civilly. Acquittal of failure to meet the quantum of evidence- Accused is still civilly liable. PAROL EVIDENCE/ CONTENTS OF WRITTEN AGREEMENT RULE/ TERMS OF WRITTEN AGREEMENT RULE When the terms of agreement has been reduced into writing it is considered as containing all the terms agreed upon and there can be no evidence as between the parties and their successors in interest other than the contents of the written agreement. It includes a last will and testament. 78

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Evidence outside of the writing or intrinsic, evidence aliunde. – should not be allowed. INTEGRATION RULE – or parol evidence – the purpose is to give stability to the written agreement and remove the temptation and possibility of committing perjury. Don’t talk about parol evidence if you refer to verbal agreement because parole evidence refers to written agreement. Inciong vs. CA- the parol evidence does not require that the written agreement is a public document. It may be a private or public document. Litjugas vs. CA- when one of the party to an agreement is not a party or privy to a written agreement, parol evidence does not apply. Parol Evidence applies to the parties to the contract and even to their successors in interest. Bar question: A entered into a contract of sale of delivery of sugar cane with B. He received the amount of 500,000. A did not deliver the sugar cane when Dec 1, 2011 arrived B filed for breach of contract or specific performance. A said that they agreed that the sugar cane should come from his plantation. How do you object? Object on the ground of parole evidence. Once the agreement is reduced into writing you cannot introduce evidence aliunde to modify the terms of agreement. EXCEPTION: PUT IN ISSUE in the pleading 1. The fact that there is an intrinsic ambiguity, mistake or imperfection in the written agreement, failure of the contract to express the true intent of the parties, validity of the written agreement, existence of other terms agreed upon by the parties or successors in terms after the execution of the contract. How do you put it in issue? If plaintiff cite it in the complaint. If defendant, allege or aver it in the answer and that is the time to allege evidence aliunde. Ex. A sues B for collection of a loan of 500 thousand. If this is covered by a promissory note but in order to put in issue in the answer, specifically deny that you borrowed the money. But since a promissory note is an actionable document, it must be denied under oath otherwise it is deemed admitted. There is an issue if you specifically deny any of the material allegation in the complaint otherwise there will be admission of its genuineness and execution. Invoke Rule 34 and file judgment on the pleading and state that the answer fails to tender an issue… EXCEPTION TO PAROL EVIDENCE:

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW 1. INTRINSIC AMBIGUITY – if the ambiguity is latent vis a vis patent ambiguity. Can be cured by parol evidence because the ambiguity is not apparent on the face of the agreement. The remedy is to ask the court to interpret the ambiguity. Ex. The contract says Mr. Espejo sells to Prof. Alcantara his horse. It turned out that Mr. Espejo has 500 horses. It is not clear which of the horse should be sold to Alcantara. There is an intrinsic ambiguity because Mr. Espejo has 500 horse and it cannot be determine which horse is being sold. Another example is a Will which states, “ I hereby divide my land in Tagaytay to Mr. Juan dela Cruz my nephew. During trial, a guy appeared and introduced himself as Mr De la Cruz and that his father is Mr Y who is Mr X brother so he is a nephew of Mr X. The next day, another Juan de la Cruz appeared and introduced himself as the nephew his father C being the brother of Mr X. The next day, another Mr. Juan de la Cruz appeared saying he is also the nephew of Mr. X his father D also being a brother of Mr. X. Here there is intrinsic ambiguity which can be cured by the party by presenting evidence aliunde to cure the defect. If there is only one Juan de la Cruz there would be no problem but since there are 3 Juan dela Cruz, intrinsic evidence is needed to determine which Juan dela Cruz should inherit the property. A party may be allowed to present other evidence if the ambiguity is not apparent on the face of the agreement. 2. EXTRINSIC AMBIGUITY OR PATENT AMBIGUITY- refer to situation where the ambiguity is patent, grave, serious on the face of the contract. By simply reading the contract, the ambiguity can be seen. If we are talking about extrinsic ambiguity or patent ambiguity, you refer to a situation where the ambiguity is apparent, serious, grave on the face of the contract. By reading stipulations in the contract you can immediately see the ambiguity. For instance a will which states “ I hereby devise my land located in Baguio City particularly described as follows to…..” If this presented for probate and several persons appears claiming to be the one referred to in the will, this is a extrinsic ambiguity where parole evidence cannot be presented. The defect cannot be cured. If the court will allow any of the persons to claim the property stated in the will, in effect the court will create a contract and add a stipulation in a will which X in the first place never intended. So if its extrinsic ambiguity or patent ambiguity it is not an exception to a parole evidence. In other words parol evidence or evidence aliunde cannot be introduced in this case. 3. INTERMEDIATE AMBIGUITY- a word in an agreement is capable of two or more meanings and all these interpretation are correct. Parol evidence can be introduced to correct the interpretation of the contract.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW BER – invoked by any parties; applies to all forms of writing ; should be invoke at the time it is offered Parol- refers to only the parties; refers only to contractual writing and includes will; invoked when the witness is about to testify which tends to modify or alter the terms of written agreement. Ex. A contract of sale involving a condo unit in Belagio with A and B. In the contract it is stated therein that A is selling his condo unit of 100sq meters in favor of B in the amount of US$50M. The agreement for payment was Dec 1, 2010. B did not pay so A filed a complaint to collect from B. In the case of collection, “I am collecting the amount of US$50M but B in his answer states that his obligation is HK$50M not US$. This is a case of an intermediate ambiguity wherein the words in the contract to sell is capable of two or more meanings but all of these interpretations are correct. In this case, parole evidence is allowed to interpret the deal. SC says Yes. Take note that in intrinsic ambiguity, the agreement itself is capable of two or more interpretations but in intermediate ambiguity it is only the words that are capable of two or more interpretations and these interpretations are all correct. Distinction between Best Evidence Rule (BER) and Parole Evidence Rule(PER). – BER it establishes a preference on the original document over the secondary evidence. But in PER, it presupposes that original document is available. BER can be invoked by any litigant or any party but in PER, it refers only to the parties in the case or their successors in interest. BER applies to all forms of writing but in PER applies only to contractual writing including will. BER is best invoked at the time the document is offered. But in PER is invoked at the time when the witness is about to testify which tends to modify the contents of the written agreement. CRIMINAL PROCEDURE: Notice of appeal filed not in the court which rendered the decision but in the CA. what is the effect of the notice of appeal after the accused is convicted? The conviction becomes final and executory after the lapse of 15 days. Notice of appeal should be filed with the court which convicted the accused. It goes without saying the importance of the Criminal Procedure. Rules 110127 covers the rules of criminal procedure. Criminal procedure starts with the commission of a felony, offense, infraction. It is not enough that the accused or person has committed an offense the accused must have been arrested. Otherwise, the case will be archived. Rules on Arrest: Gen. Rule : pursuant to Art 3, Sec 2 of 1987 Constitution, take note of the right against unreasonable search and seizure. The basis for

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW the issuance of warrant of arrest. It can either be arrest by virtue of a warrant or arrest w/o a warrant of arrest- which is more controversial. Gen Rule: only arrest a person if armed with a warrant. No arrest can be made except when a police officer is armed with a warrant of arrest. Sec 5 Rule 113: exception/instances of valid warrantless arrest: 1. In flagrante delicto arrest- that a crime has been committed, it is being committed or has just been committed in the presence of the arresting officer. 2. a crime has just been committed and the person arresting has personal knowledge that the person to be arrested has committed the offense- this is a case of hot pursuit 3. arrest of a fugitive or escapee from justice- any person can arrest him. The only rule that can be invoked whether to convict or not to convict the accused. Formula: Rules in Crim Procedure: if there is a valid arrest on the basis of the warrant; the evidence obtained is also legal. If the arrest is illegal, the evidence obtained during the illegal arrest is inadmissible as being a product of fruit of a poisonous tree. Paragraph a or c : citizen’s arrest. NOTE that a private citizen can make only a warrantless arrest as contemplated in Sec 5 Rule 113. If it’s by virtue of a warrant arrest, private citizen can not make the arrest. Unlike a search warrant, a warrant of arrest cannot be issued unless there is already a case filed in court. The first thing a court will do upon receipt of information is to prepare a warrant of arrest. By serving this warrant the court acquires jurisdiction over the accused. This is true if the accused was not arrested in flagrante delicto. In a case of estafa committed on Sept 2010 against Mr A. One year after, it was discovered that Mr. A was already residing somewhere else. Complainant contacted the police officer to conduct an arrest at his new address. Police officer arrested the person at the new given address. Is the arrest legal? No. Police officer should obtain a new warrant of arrest for this purpose. A complaint should first be filed before a warrant may be issued. No preliminary investigation where the offense committed is penalized by imprisonment of less than 4 yrs 1 month and 1 day. Residents of the same barangay or adjoining barangay or adjoining cities or municipalities should comply with the barangay conciliation procedure. If there is no successful conciliation effort, the barangay will issue a CERTIFICATE TO FILE ACTION- indispensable before filing a case in court. Search warrant- can be obtained from court even if there is no case yet. Then conduct a buy bust operation or go to the house of the suspect to implement the search warrant. Take note that there must be a particular 82

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW description of the place to be searched. The police officer who will implement the search warrant cannot exercise discretion. The moment the police officer implementing the search exercise discretion, the search is illegal and all evidence obtained are inadmissible as being fruits of a poisonous tree.

WARRANTLESS ARREST- REQUEST FOR AN INQUEST. Offense 4 yrs 2 months 1 day, Rule 112 of the Rules of Court in connection with Rule110 requires the conduct of a preliminary investigation. A complaint affidavit has to be filed with the prosecutors office, swear under oath and the case will be raffled to a investigating prosecutor. Docket fees required in cases of Estafa, BP 22 . Docket fees in criminal case are lower than in civil case. In civil case the docket fee is 1M – 10,000 (estimate) Do not call the person charge as accused during preliminary investigation but RESPONDENT. Investigating prosecutor assigned has the duty to determine whether or not there is probable cause. The probable cause to be determined by prosecutor is different from that determined by the judge. The probable cause determined by the Prosecutor is whether or not there is a basis for the filing of an information, whereas the probable cause to be determined by the judge is only for purposes of issuance of a warrant of arrest. In the case of Webb vs De Leon, if you refer to probable cause during preliminary investigation, it presupposes that more likely than not, the offense was committed by respondent and so he will be liable. We do not require proof beyond reasonable doubt or absolute certainty. What we need only is an inference that more likely or not the respondent has committed the offense. If there is a basis for the filing of a case in court, the investigating prosecutor will prepare a resolution and subsequently an information to be filed in court. Note that no information will be filed in court without the approval or imprimatur of the City Prosecutor. File a motion for reconsideration if aggrieved by the resolution of the Investigating Prosecutor but this does not prevent the filing of an information in the court. Can TRO be issued against the prosecutor? General Rule:No amount of TRO or injunction or writ of prohibition will stop the public prosecutor from filing the information because the public prosecution is imbued with public interest. It is not private complainant but the state.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW Except in cases of Lino Brocka vs. Juan Ponce Enrile; or Teodor Borlongan vs. Pena; People vs.Jojo Grey (July 26, 2010) It is an established doctrine that injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. However, it is also true that various decisions of this Court have laid down EXCEPTIONS to this rule, among which are: a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a pre-judicial question which is subjudice (De Leon v. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang v. People and Avendia, 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h. Where there is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); x x x j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438)[; and] [k.] Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953).

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW If it is no longer a case of prosecution but of persecution, can TRO be requested? Yes. If there is a prejudicial question which is subjudice or double jeopardy, will TRO lie? Yes Can mandamus be filed to compel the court to resolve a case? Yes, to compel the prosecutor to resolve the case. But cannot compel the prosecutor to decide it one way or the other because it is a discretionary in character. If the Motion for Reconsideration is denied, a Petition for Review may be filed before DOJ to reverse the resolution. Meantime, the information, affidavits during preliminary investigation are elevated to the court. In Lacson vs. Sec of DOJ – before a judge can issue a warrant of arrest, a motion for judicial determination of probable cause may be filed. The judge will conduct a hearing to determine the existence of probable cause for the purposes of issuance of warrant of arrest. If the court denies or resolves the motion for judicial determination of probable cause and said that there is a basis for the issuance of warrant of arrest. The police officers can now implement the warrant. If warrant of arrest is issued and the accused has been arrested. What should the accused do? He will have to post bail. Forms: 1. Surety 2. Cash 3. Recognizance of the respectable member of the community but not the lawyer 4. Property Bond Note that the court cannot compel cash bond alone because the general rule is that bail is a matter of right. EFFECT OF POSTING OF BAIL BY THE ACCUSED Sec 26, Rule 114: - TAKE NOTE OF THIS FOR BAR PURPOSES: 1. Not a bar from challenging the validity of arrest or 2. Legality of warrant issued thereafter or 3. From assailing the regularity of preliminary investigation or 4. Question the absence of a preliminary investigation of the charge against him PROVIDED that the accused raised these grounds before entering a plea because after a plea has been entered, the accused is deemed to have waived his right. After posting bail, a preliminary investigation will be done within 5 days. If after posting the bail, the Sec of DOJ issued a resolution reversing the resolution of the Investigating Prosecution, in the absence of a probable cause DOJ will 85

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW direct the trial prosecution to withdraw the information. In a case, Mario Crespo vs. Judge Mogol, the judge did not grant the motion to withdraw the information on the ground that it is not bound by the ruling of Secretary of Justice. The SC in deciding said that the court is not bound by the Sec of DOJ, it assumes jurisdiction until final disposition of the case. The SC reminded the Sec of DOJ not to entertain petition for review when the case has been filed. Effect of Petition for Review with Sec of DOJ? -Arraignment is suspended for 60 days from receipt of the petition for review by DOJ. In filing a petition for review, recall the instances for suspension of arraignment. SUSPENSION OF ARRAIGNMENT 1. Accused is suffering from unsound mind 2. Existence of Prejudicial question – Dreamwork Construction vs. Janiolla; Do not talk of prejudicial question if the case involve is a civil and the other is a criminal case 3. Double jeopardy : People vs. Jason Ivler What is being punished is the criminal negligence which results to 2 offense. People vs. Buan- In order to invoke double jeopardy: 1. The court must be a competent court or has jurisdiction over the case 2. There is a valid complaint or information 3. There must be prior jeopardy 4. The accused must have been arraigned 5. The accused was convicted and dismissal of the case was not at the instance of the accused. The accused cannot move for the dismissal of the case and invoke double jeopardy. However there are 2 situations wherein double jeopardy attaches even though the dismissal is at the instance of the accused a. dismissal on the ground of Motion to Dismiss by Demurrer to evidence b. invocation of the speedy trial Act of 1998. (People vs. Florabell) FLORABELL DOCTRINE: SC stated that if dismissal resulted from accused invocation of speedy trial that dismissal will already involve double jeopardy. Rule 110- (grounds for valid complaint or information) 1. 2. 3. 4. 5. 6.

Name of the accused Designation of the Offense Act or omission Date and time of commission of the offense Place of the commission of offense. Name of offended party

All of these must appear in the information otherwise it is defective. One information equals one offense. There cannot be two offenses in one information otherwise, it will run the risk of quashing the information for 86

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW duplicity of offense. Duplicitous offense presupposes that there is onlyone information. Complaint or information should be filed in the place the offense was committed or where any ingredient of the offense was committed. In continuing offense, it can be filed in any of the place where the vehicle passed as in the case of carnapping. Falsification is not a continuing offense. For instance, in the case of use of falsified document- file in the place where the use of falsified document committed. Rule 110 clearly states that aggravating and qualifying circumstances shall be alleged otherwise, the rights of the accused to be informed of the nature of the accusation against him will be violated. If on the other hand the accused was arrested in flagrante delicto, which means that there is no warrant of arrest, he should be brought before a prosecutor for inquest proceedings. The inquest proceedings will determine whether there was a validity of the arrest since this was done under a warrantless arrest. Arresting officers are bound by the Art 125 of RPC (delay in the delivery of arrested persons before a judicial authority), which means they have to comply with the 12,18, & 36 hour rule. Under Sec 6 of Rule 112, the arrested person is required to sign a waiver of the provisions of Art 125 RPC. If he signs it he will continue to stay in prison and will remain in the custody of the law. The first hearing that the court will set is the arraignment in which case he will be asked to enter a plea. The SC has already categorically stated that the plea must come directly from the mouth of the accused. The lawyer of the accused cannot enter the plea for him. Whether he pleas guilty or not it should come from him. If during the arraignment the accused pleas not guilty but invokes self defense, there will be a inverted trial, meaning the accused will establish that indeed there was self defense. In which case, the accused will be the first to present evidence to prove self defense. Before arraignment, the accused can move for the quashal of the information. Take note however that in quashal this refers only to information. Rule 126 of Rules of Courtmotion to quash a search warrant or suppress evidence. The quashal of the search warrant will render the evidence gathered as fruit of the poisonous tree. But in Rule 117, this refers to motion to quash the information. This refers to a situation where the facts charged do not constitute an offense. This is a situation wherein one or two elements of the crime where not alleged in the complaint or information, necessarily the case can be dismissed. After arraignment, there is pre-trial. The rule is unlike in civil cases, in criminal case there is no need for filing for pre-trial briefs. If the counsel and parties do not appear during pre-trial they will held administratively liable but 87

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW there is no dismissal of the case and presentation of evidence ex parte. But take note, that all agreements entered into by the parties must be reduced into writing and subscribed by the parties. During pre-trial the case will be referred to mediation for a period of 30 days for the purpose of exploring the possibility of amicable settlement of the civil aspect only and for the pre-marking of exhibits because as a rule, no evidence shall be offered unless it has been premarked. After the marking of exhibits the court will issue a pre-trial order. After the mediation, the case will be referred back to the court for the continuation of the trial. During the trial, it is the duty of the prosecution to establish the quantum of evidence required. It cannot rely on the weakness of the defense. It is also the duty of the prosecution to present evidence ahead except where the defense invokes self defense. Accused has to be present during arraignment, promulgation of sentence and if the court requires his presence. During trial, Rule 115 of the Rules of Court on the rights of the accused has to be observed. Take note of the Right to Speedy Trial. Dismissal pursuant to violation of the right to speedy trial will result to double jeopardy. Grounds for Provisional Dismissal- if the case has been pending for 2 or 3 years already, and the prosecution has not presented a witness for the 2nd or 3rd time the accused may move for the provisional dismissal of the case. Take note of the DOCTRINE OF TIME BAR RULE laid down in the case Lacson vs. Executive Secretary. If those periods have already lapsed and the prosecution has not filed a motion for the revival of the case that dismissal for all purposes shall become permanent. “Sec. 8. Provisional Dismissal. – A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. “The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two years after issuance of the order without the case having been revived.” After presentation of evidence by the prosecution, the accused has two remedies, either to present evidence or move for a demurrer to evidence. Take note however that in criminal cases, demurrer to evidence is stricter compared to demurrer to evidence in civil cases, since it requires leave of court. Under the Rules of Criminal Procedure, after the prosecution has rested its case, the accused has a mandatory period of 5 days within which to file a motion for leave to file a demurrer to evidence. The motion for leave of court is indispensable because if no motion for leave and automatically filed a demurrer to evidence and was denied by court, the accused is deemed to 88

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW have waived his right to present his evidence. So if after filing a motion for leave of court within 5 days, the accused has 10 days to file his demurrer to evidence and the other party has also 10 days to file his opposition on the demurrer to evidence. Thereafter if the court resolves to deny the demurrer to evidence, the accused if he has filed a leave of court, can present his evidence. If the case has been dismissed by reason of the granting of the demurrer to evidence, double jeopardy will set in. Unlike in civil case, after the prosecution has rested its case, without any period to consider, the defendant without leave of court can file a demurrer to evidence. If the court denies the demurrer, defendant can present his evidence. If on the other hand the court grants the demurrer, the case will be dismissed. But if on appeal, the appellate court reverses the dismissal of the case, the defendant is deemed to have waived his right to present his evidence. Radiowealth Corp vs. CA. If the appellate court reverses the dismissal, the CA has to render a judgment. It will not remand the case to the lower court to continue with the proceeding. In criminal cases, the ground for demurrer is insufficiency of evidence. If the accused wish to present its evidence, it will follow the normal order in the presentation of evidence. Thereafter, the parties will submit their respective memorandum and the case will be submitted for resolution. The court on the basis of the memorandum and evidence presented will render its decision. The judge who renders the decision shall sign it and thereafter promulgate the decision. In civil case there is no promulgation of judgment only in criminal case. Promulgation of judgment is done by reading the decision in the presence of the accused. It is only in light offenses where the accused may not be present during the promulgation of judgment. If the accused is not present during promulgation of judgment he is deemed to have waived his right to avail of post judgment remedies such as MR, MNT, Appeals. Where there are several accused and only one of them was present during promulgation of judgment, only the accused present during the promulgation can avail of the post judgment remedies. If there is a judgment, under Art 100 of RPC every person criminally liable should be civilly liable. If the accused is acquitted, accused may still be civilly liable. If the accused is convicted, he can file for MR for the civil aspect. But if he has been acquitted, private complainant cannot file an MR as it will result to double jeopardy except as to accused’s civil liability. If the accused has been acquitted because proof beyond reasonable doubt was not established by the prosecution, accused may still be held civilly liable. But if the accused is acquitted because he is not liable for the crime or he did not commit the crime, he is not civilly liable. The rule 101 of the Rules of Court states that criminal action is filed the civil liability is deemed instituted except where there is reservation, waiver of 89

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW liability, and the civil action is filed ahead. If you refer to the civil liability which is deemed instituted, this refers to civil liability ex delicto or those arising from the crime. Can you file for civil liability from other sources? Yes. If there is a merger of civil liability and criminality, this refers to civil liability ex delicto, hence other civil liability can continue separately from the criminal case. If there is a judgment of conviction or acquittal, because the prosecution failed to establish the quantum of evidence the prosecution can file an appeal with respect to the civil aspect. However, in People vs. Hernandez the SC ruled that since it is an appeal, it throws open the entire case including the criminal aspect, therefore the appellate court can convict an accused on appeal. In People vs. Efren Mateo wherein in case of death penalty, the petition for review shall be filed with the CA anymore. Since the death penalty is suspended, automatic review no long applies. If the CA affirms the conviction can the SC issue a TRO? Yes. Leo Echagaray vs SOJ case (refer to discussion above on expanded jurisdiction of the court) Take note that in a rape case, the extinguishment of the criminal liability of the accused by reason of his marriage to the victim and his subsequent release from imprisonment by virtue of a petition for habeas corpus( see above discussion on expanded jurisdiction of the court in Leo Echagaray case) does not apply to his co-accused because the contract of marriages is only between the convicted and his victim only SPECIAL PROCEEDINGS Estate Proceeding The law on estate proceeding is simple, the person died with properties which has to be distributed in accordance with his will or in the absence of a will, through intestacy after payment of obligation. If a Filipino dies abroad with a will and was probated there, it has to be reported here in the Phils. If he has no will, the law of succession will be followed. The modes of discovery under Civil Procedure also applies in special proceedings because Rule 72 states that in the absence of special laws, the laws under civil procedure as far as it is practicable shall also apply in special proceedings. Ex. Pnoy died without a will his heirs prepared the extrajudicial settlement less expenses. Few laters, a person appeared claim to be the legitimate child of Pnoy and move to annul the extrajudicial settlement of estate. The heirs objected on the ground that the extrajudicial settlement was published and therefore it is notice to the whole world including the claimant. SC said that publication of extrajudicial settlement is never intended to deprive heirs 90

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW of their lawful participation in the estate of the deceased. It is not binding to heirs who have no knowledge or who did not take part. Take note of the venue of the judicial settlement of estate and jurisdiction limit. If a person dies and the heirs wants to settle the estate it may be done judicially or extrajudicially. If there is only one heir, he may execute an affidavit adjudicating the property to himself. If the value of the estate is only 10 thousand there is no need for the settlement of estate. If there is a will, the wishes of the decedent should be respected, hence probate of the will is mandatory. Therefore, the heirs cannot forego with the probate of the will and instead copy its content in their extrajudicial settlement. Testacy prevails over intestacy. If there is settlement of estate and later on a will was found during the settlement of estate, it will be suspended and the probate of the will shall be given due course. If the will has been allowed, probated that is conclusive as to the due execution and genuineness of the will. If a will was allowed and no appeal was taken and it was later found out that it was not genuine, can a case of forgery be file against the person who forged the signature of the testator? No. The allowance of a will from which no appeal is taken is conclusive as to its due execution. - A lost will may be allowed provided the requisites provided for in Sec 6 Rule 76 are complied with. LETTERS OF ADMINISTRATION Letters of administration covers only properties or estate left in the Philippines. Similarly, in the appointment of administrator, the order of preference as held in Christina Aguinaldo Suntay vs. Isabel Conjuangco Suntay June 10, 2010, the SC said that it can order of preference of an administrator does not rule out co-administrators. There can be two or more administrators. ISSUANCE OF LETTERS OF ADMINISTRATION: TWO GROUNDs TO CONTEST Sec 4 Rule 76 1. Incompetency 2. Contestants own right to the administration In San Luis vs CA 514 SCRA 294, the woman has the legal personality to file for the issuance of a letters of administration because she an interested person under the contemplation of Sec 2, Rule 79. Being a co-owner of the properties acquired with the man she therefore has right as co-owner over the properties. So she falls under the contemplation of an interested person even if they lived together without the marriage.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW If there was an order denying the probate of the will, the decision can be overturned by filing an annulment of judgment or petition for relief of judgment as the case may be. Take note of the rule on the death of a party in a case. No need to serve summons to the substitute. Take of Rule 91 on escheat proceeding. The action to recover an escheated property should be filed in 5 years. ON GUARDIANSHIP: In the case Hernandez vs. Santos, the SC allowed the granting of guardianship to a person who is of unsound mind, weak minds, etc. ON HABEAS CORPUS: This contemplates 2 situation; first, deprivation of person’s liberty either through legal confinement or detention or withholding the custody of the person from someone entitled to such custody. Correlate this with the post conviction DNA. ( discussion sufra) Can Sandiganbayan grant petition of habeas corpus? The Sandiganbayan can take cognizance of petitions for issuance of habeas corpus only in aid of its appellate jurisdiction but not as an original jurisdiction. Who can file the petition for habeas corpus? Can a live-in partner file for habeas corpus? Yes Sec 3 Rule 102 states that it may filed by some person in his stead. WRIT OF AMPARO/WRIT OF HABEAS DATA- were promulgated in order to address the situation of enforced disappearance and extra-legal killings. Take note of Sec 1 of Writ of Amparo and Writ of Habeas Data Writ of Amparo is available only to any person whose right to life, liberty or security is violated or threatened to be violated by an unlawful act by public official/employee or private individual. Writ of Habeas Data- remedy available to any person whose right to privacy in life, liberty or security is violated or threatened to be violated by any public official/employee engaged in gathering, collecting and storing of data or information regarding the person, family, home and correspondence of the aggrieved party. It is not enough that there was violation to right to privacy in life or liberty or security. The public official/employee must be engaged in the gathering, collecting and storing of data or information regarding the person, family, home and correspondence of the aggrieved person. This remedy is not available where the subject matter involve is uncertain grounds as held in Cruz vs. CA.

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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW RULE 103 AND 108: PETITION OF CHANGE NAME AND PETITION FOR CORRECTION OF ENTRIES Typographical errors which are not substantial in character allows the petition to be filed in Local Registrar. If correction refers to the changing of status from legitimate to illegitimate or citizenship from Chinese to Filipino this is substantial in character and is adversarial in nature hence, should therefore be rectified only through a petition filed in the courts. The change of status will affect the successional rights of the person, hence, the case should be filed in courts. Can a correction or change of gender be filed under Rule 103. Recall the case of Jennifer Cagandahan Considering the unique nature of the case, the SC took cognizance of the case invoking Sec 6 Rule 1. ( refer to discussion on the requirement of notice to the local registrar and SolGen; liberal construction of the rules supra.) The SC granted the petition and took judicial notice of the provisions of the New Civil Code that no judge shall decline to render judgment by reason of absence, obscurity or insufficiency of law. So even if there is no applicable law yet or SC pronouncement or ruling, because the Philippine courts is a court of law and equity, in the absence of a law, equity shall apply. The SC stated that “Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication] to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent's development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit 93

LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an "incompetent" and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his personal judgment of being a male. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent's congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. As for respondent's change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court's grant of respondent's change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent's change of name merely recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform with the change of the entry in his birth certificate from female to male.”

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