Up Remedial Law Reviewer

UP L AW BAR REVIEWER

2012

REMEDIAL Criminal Procedure Civil Procedure Evidence Special Proceedings

LAW Dean Danilo L. Concepcion Dean, UP College of Law

Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Eden Catherine Mopia Remedial Law Subject Heads Graciello Timothy Reyes Layout

UP LAW BAR OPERATIONS COMMISSION

REMEDIAL LAW REVIEWER

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2012

REMEDIAL BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events

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REMEDIAL LAW TEAM 2012 Subject Heads |Eden Catherine Mopia

LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages


REMEDIAL

2012 UP Law Bar Reviewer

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Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law. All Rights reserved.


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Criminal Procedure...................... 12 I. GENERAL MATTERS ...................... 12 A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused ............................... 12 B. Requisites for exercise of criminal jurisdiction ................................ 12 C. Jurisdiction of Criminal courts ...... 12 II. PROSECUTION OF OFFENSES .......... 14 1. Criminal actions, how instituted (Bar 1999) ....................................... 14 2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000) ................................ 15 3. Criminal actions, when enjoined.... 16 4. Control of prosecution ................ 16 5. Sufficiency of Complaint or Information ................................ 16 6. Designation of Offense ............... 18 7. Cause of the Accusation .............. 18 8. Duplicity of the Offense; Exception (Bar 2005) ................................. 19 9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002) .................... 19 10. Venue of criminal actions .......... 20 11. Intervention of offended party .... 20 III. PROSECUTION OF CIVIL ACTION...... 20 1. Rule on implied institution of civil action with criminal action ............. 20 2. When civil action may proceed independently ............................. 21 3. When separate civil action is suspended ................................. 21 4. Effect of the death of accused or convict on civil action ................... 21 5. Prejudicial Question .................. 21 6. Rule on Filing Fees in civil action deemed instituted with the criminal action ...................................... 22 IV. PRELIMINARY INVESTIGATION ........ 22 1. Nature of right ......................... 22 2. Purposes of preliminary investigation .............................. 23 3. Who may conduct determination of existence of probable cause ............ 23 4. Resolution of investigating prosecutor ................................. 24

5. Review .................................. 24 6. When warrant of arrest may issue .. 24 7. Cases not requiring a preliminary investigation ............................... 25 8. Remedies of accused if there was no preliminary investigation ................ 25 9. Inquest .................................. 25 V. ARREST .................................... 26 1. Arrest, how made ..................... 27 2. Arrest without warrant, when lawful .............................................. 27 3. Method of arrest ....................... 28 4. Requisites of a valid warrant of arrest .............................................. 29 5. Determination of Probable Cause for issuance of warrant of arrest ........... 29 6. Distinguish probable cause of fiscal from that of a judge...................... 29 VI. BAIL ....................................... 30 1. Nature ................................... 30 2. When a matter of right; exceptions 31 3. When a matter of discretion ......... 32 4. Hearing of application for bail in capital offenses ........................... 32 5. Guidelines in fixing amount of bail . 32 6. Bail when not required ............... 33 7. Increase or Reduction of Bail ........ 33 8. Forfeiture and Cancellation of bail . 33 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation ................ 33 10. Hold Departure Order & Bureau of Immigration Watchlist ................... 33 VII. RIGHTS OF THE ACCUSED ............. 34 1. Rights of accused at the trial ........ 34 2. Rights of persons under Custodial Investigation ............................... 36 VIII.ARRAIGNMENT AND PLEA ................................................. 37 1. Arraignment and Plea, how made ... 37 2. When should plea of NOT GUILTY be entered ..................................... 38 3. When accused may enter a plea of guilty to a lesser offense ................ 38 4. Accused plead guilty to capital offense, what the court should do ..... 38 5. Searching Inquiry ...................... 38 6. Improvident plea ...................... 38 7. Grounds for suspension of arraignment .............................................. 38

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IX.MOTION TO QUASH ................................................. 39 1. Grounds ................................. 39 2. Distinguish from demurrer to evidence .............................................. 43 3. Effects of sustaining the motion to quash ....................................... 43 4. Exception to the rule that sustaining the motion is not a bar to another prosecution ................................ 44 5. Double Jeopardy....................... 44 6. Provisional Dismissal .................. 45 X. .................................................. PRE-TRIAL ................................................. 46 1. Matters to be considered during pretrial ......................................... 46 2. What the court should do when prosecution and offended party agree to the plea offered by the accused ....... 46 3. Pre-trial agreement ................... 47 4. Non-appearance during pre-trial .... 47 5. Pre-trial order ......................... 47 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution ................................. 48 XI. .........................................................TRIAL ................................................. 48 1. Instances when presence of accused is required by law ........................ 48 2. Requisites before trial can be suspended on account of absence of witness ..................................... 48 3. Trial in Absentia ....................... 49 4. Remedy when accused is not brought to trial within the prescribed period ...................................... 49 5. Requisites for discharge of accused to become a state witness.................. 49 6. Effects of Discharge of accused as state witness .............................. 50 7. Demurrer to Evidence ................ 50 XII. ...............................................JUDGMENT ................................................. 51 1. Requisites of a judgment............. 51 2. Contents of Judgment ................ 51

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3. Promulgation of judgment; instances of promulgation of judgment in absentia .................................... 53 4. When does judgment become final (four instances) ........................... 54 REMEDIAL LAW REVIEWER XIII.NEW TRIAL OR RECONSIDERATION ................................................. 54 1. Grounds for New Trial [............... 54 2. Grounds for Reconsideration ......... 54 3. Requisites before a new trial may be granted on ground of newly discovered evidence ................................... 54 4. Effects of granting a new trial or reconsideration ........................... 55 5. Application of Neypes Doctrine in Criminal Cases............................. 55

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XIV. ................................................... APPEAL ................................................. 55 1. Effect of an Appeal.................... 55 2. Where to appeal ....................... 55 3. How appeal taken .................... 56 4. Effect of appeal by any of several accused..................................... 62 5. Grounds for dismissal of appeal ..... 62 XV.SEARCH AND SEIZURE ................................................. 62 1. Nature of search warrant............. 62 2. Distinguish from warrant of arrest .. 63 3. Application for search warrant, where filed ................................ 64 4. Probable Cause ........................ 66 5. Personal examination by judge of the applicant and witnesses ................. 66 6. Particularity of place to be searched and things to be seized....... 67 7. Personal property to be seized ...... 68 8. Exceptions to search warrant requirement ............................... 68 9. Remedies from unlawful search and seizure...................................... 71 XVI.PROVISIONAL REMEDIES ................................................. 72 1. Nature ................................... 72 2. Kinds of provisional remedies........ 73


Civil Procedure ........................... 77 6

GENERAL PRINCIPLES ...................... 77 A. Concept of Remedial Law ............ 77 B. Substantive Law as Distinguished from Remedial Law ............................. 77 C. Rule-making Power of the Supreme Court ....................................... 77 D. Nature of Philippine Courts .......... 78 JURISDICTION................................ 79 A. Jurisdiction over the parties ........ 80 B. Jurisdiction over the subject matter 80 C. Jurisdiction over the issues .......... 81 D. Jurisdiction over the res or property in litigation ................................ 81 E. Jurisdiction of Courts ................. 82 F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation . 87 G. Totality Rule ........................... 88 I. ...................................................... ACTIONS ................................................. 88 II.CAUSE OF ACTION ................................................. 90 1. Meaning of cause of action .......... 90 2. Right of action versus cause of action .............................................. 90 3. Failure to state a cause of action ... 90 4. Test of the sufficiency of a cause of action ...................................... 91 5. Splitting a single cause of action and its effects .................................. 91 6. Joinder and misjoinder of causes of action ...................................... 91 III.PARTIES TO CIVIL ACTIONS ................................................. 91 1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants ............... 92 2. Compulsory and permissive joinder of parties...................................... 94 3. Misjoinder and non-joinder of parties .............................................. 94 4. Class suit ............................... 94 5. Suits against entities without juridical personality................................. 95 6. Effect of death of party litigant .... 95

IV. ....................................................... VENUE ................................................. 96 1. Venue versus jurisdiction ............. 96 2. Venue of real actions ................. 96 3. Venue of personal actions ............ 96 4. Venue of actions against non-residents [Rule 5, Sec. 3]............................ 96 5. When the rules on venue do not apply .............................................. 96 6. Effects of stipulations on venue ..... 96 V. .................................................PLEADINGS ................................................. 97 1. Kinds of Pleadings ..................... 97 2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure .....................101 3. Parts of a pleading ...................101 4. Allegations in a pleading ............102 5. Effect of failure to plead ............103 6. Default .................................104 7. Filing and Service of pleadings .....106 8. Amendment ...........................108 VI. SUMMONS............................... 110 1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem .........................110 2. Voluntary appearance ...............110 3. Personal service ......................111 4. Substituted service ...................111 5. Constructive service (by publication) ...............................111 6. Extra-territorial service, when allowed ....................................112 7. Service upon prisoners and minors .112 8. Proof of service .......................112 VII. MOTIONS ............................... 113 1. Motions in general ....................113 2. Motions for Bill of Particulars .......114 3. Motion to Dismiss .....................115 VIII. DISMISSAL OF ACTIONS ............. 118 1. Dismissal upon notice by plaintiff; Two-dismissal rule .......................119 2. Dismissal upon motion by plaintiff; effect on existing counterclaim .......119 3. Dismissal due to the fault of plaintiff .............................................119 4. Dismissal of counterclaim, cross-claim or third-party complaint ................119

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IX. PRE-TRIAL .............................. 120 1. Concept of pre-trial .................. 120 2. Nature and purpose .................. 120 3. Notice of pre-trial .................... 120 4. Appearance of parties; effect of failure to appear ........................ 120 5. Pre-trial brief; effect of failure to appear..................................... 121 6. Distinction between pre-trial in civil case and pre-trial in criminal case .... 122 7. Alternative Dispute Resolution (ADR) ............................................. 122 X. INTERVENTION ......................... 122 1. Requisites for intervention ......... 123 2. Time to intervene .................... 123 3. Remedy for the denial of motion to intervene ................................. 123 XI. SUBPOENA ............................. 123 1. Subpoena duces tecum .............. 124 2. Subpoena ad testificandum ......... 124 3. Service of subpoena.................. 124 4. Compelling attendance of witnesses; Contempt .................... 124 5. Quashing of subpoena [Rule 21, Sec. 4]........................................... 124 XII. MODES OF DISCOVERY .............. 125 1. Depositions pending action; Depositions before action or pending appeal ..................................... 125 2. Written interrogatories to adverse parties..................................... 128 3. Request for Admission ............... 129 4. Production or inspection of documents or things .................................. 129 5. Physical and mental examination of persons .................................... 130 6. Consequences of refusal to comply with modes of discovery ................ 130 XIII. TRIAL .................................. 130 1. Adjournments and postponements 131 2. Requisites of motion to postpone trial ............................................. 131 3. Agreed statement of facts .......... 131 4. Order of trial; reversal of order.... 131

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5. Consolidation or Severance of hearing or trial .....................................131 6. Delegation of reception of evidence .............................................132 7. Trial by commissioners ..............132 REMEDIAL LAW REVIEWER XIV. DEMURRER TO EVIDENCE .......... 133 1. Ground .................................133 2. Effect of denial .......................133 3. Effect of grant ........................133 4. Waiver of right to present evidence .............................................133 5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case .............................134

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XV. JUDGMENTS AND FINAL ORDERS .. 134 1. Judgment without trial ..............135 2. Contents of a judgment .............135 3. Judgment on the pleadings .........136 4. Summary judgments .................136 5. Judgment on the pleadings versus summary judgments .....................137 6. Rendition of judgments and final orders......................................137 7. Entry of judgment and final order .138 XVI. POST-JUDGMENT REMEDIES ....... 138 1. Motion for New Trial or Reconsideration ..........................138 2. Appeals in General ...................141 3. Relief from judgments, orders and other proceedings .......................153 4. Annulment of Judgments or final orders and resolutions ..................154 XVII. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS ................. 155 1. Difference between finality of judgment for purposes of appeal; for purposes of execution ...................155 2. When execution shall issue .........156 3. How a judgment is executed .......157 4. Properties exempt from execution 159 5. Proceedings where property is claimed by third persons ...............160 6. Rules on Redemption ................161 7. Examination of Judgment Obligor When Judgment is unsatisfied .........162


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8. Examination of Obligor of Judgment Obligor .................................... 163 9. Effect of Judgment or Final Orders 163 10. Enforcement and Effect of Foreign Judgments or Final Orders ............. 164 XVIII. PROVISIONAL REMEDIES .......... 164 1. Nature of provisional remedies .... 164 2. Jurisdiction over provisional remedies .................................. 164 3. Preliminary Attachment ............. 164 4. Preliminary Injunction ............... 168 5. Receivership .......................... 172 6. Replevin ............................... 173 XIX. SPECIAL CIVIL ACTIONS ............ 174 1. Nature of special civil actions ...... 174 2. Ordinary civil actions versus special civil actions............................... 175 3. Jurisdiction and venue .............. 175 4. Interpleader ........................... 175 5. Declaratory Reliefs and Similar Remedies ................................. 176 6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA ............................................. 177 7. Certiorari, Prohibition and Mandamus ................................ 178 8. Quo Warranto ......................... 180 9. Expropriation ......................... 181 10. Foreclosure of Real Estate Mortgage ............................................. 184 11. Partition .............................. 186 12. Forcible Entry and Unlawful Detainer ............................................. 188 13. Contempt ............................ 192

Evidence.................................. 204 I. GENERAL PRINCIPLES .................. 204 A. Concept of Evidence ................. 204 B. Scope of the Rules of Evidence .... 204 C. Evidence in Civil Cases Versus Evidence in Criminal Cases ............. 204 D. Proof Versus Evidence ............... 204 E. Factum Probans Versus Factum Probandum ............................... 204 F. Admissibility of Evidence............ 204 G. Burden of Proof and Burden of Evidence .................................. 206 H. Presumptions ......................... 206 I. Liberal Construction of the Rules of Evidence .................................. 206

J. Quantum of Evidence (Weight And Sufficiency of Evidence) ................206 II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS ................................ 206 A. What Need Not be Proved ........206 B. Matters of Judicial Notice ........207 C. Judicial Admissions ................207 D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance 209 III. OBJECT (REAL) EVIDENCE ........... 209 A. Nature of Object Evidence .......209 B. Requisites for Admissibility .......209 C. Categories of Object Evidence ...210 D. Demonstrative Evidence ..........210 E. View of an Object or Scene ......210 F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 ...........210 G. Rule on DNA Evidence (A.M. No. 0611-5-SC) ...................................210 IV. DOCUMENTARY EVIDENCE ........... 211 A. Meaning of Documentary Evidence 211 B. Requisites for Admissibility .......211 C. Best Evidence Rule ................212 D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC) .........................212 E. Parol Evidence Rule ...............213 F. Authentication and Proof of Documents ................................214 V. TESTIMONIAL EVIDENCE .............. 216 A. Qualifications of a Witness [Rule 130, sec. 20] ..............................216 B. Competency versus Credibility of a Witness ....................................216 C. Disqualifications of Witnesses....216 D. Examination of a Witness .........218 E. Admissions and Confessions ......219 F. Hearsay Rule ........................221 G. Opinion Rule ........................223 H. Character Evidence ................223 I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC) ..........224 VI. OFFER AND OBJECTION.............. 225 A. Offer of Evidence ..................225 B. When to Make an Offer ...........225 C. Objection ...........................225 D. Repetition of an Objection .......225

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E. F. G.

Ruling ................................ 225 Striking Out of an Answer ........ 226 Tender of Excluded Evidence .... 226

Special Proceedings .................. 228 PRELIMINARY MATTERS .................. 228 I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS........ 230 A. Which court has jurisdiction ..... 230 B. Venue in judicial settlement of estate ..................................... 230 C. Extent of jurisdiction of Probate Court ...................................... 230 D. Powers and Duties of Probate Court 230 II. SUMMARY SETTLEMENT OF ESTATES ............................................... 230 A. Extrajudicial settlement by agreement between heirs, when allowed 230 B. Two-year prescriptive period .... 231 C. Affidavit of Self-adjudication by sole heir................................... 231 D. Summary settlement of estates of small value, when allowed ............. 231 E. Remedies of aggrieved parties after extra-judicial settlement of estate ... 232 III. PRODUCTION AND PROBATE OF WILL ............................................... 233 A. Nature of probate proceeding ... 233 B. Who may petition for probate; persons entitled to notice .............. 233 IV. ALLOWANCE OR DISALLOWANCE OF WILL ......................................... 234 A. Contents of petition for allowance of will ..................................... 234 B. Grounds for disallowing a will ... 234 C. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate ........ 234 V. ALLOWANCE OR DISALLOWANCE OF WILL ......................................... 234

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A. When and To whom letters of administration granted .................234 B. Order of preference ...............234 C. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration .............235 REMEDIAL LAW REVIEWER D. Powers and duties of Executors and Administrators; restrictions on the powers .....................................235 E. Appointment of Special Administrator .............................237 F. Grounds for removal of administrator .............................237

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VI. CLAIMS AGAINST THE ESTATE ...... 237 A. Time within which claims shall be filed; exceptions .........................237 B. Statute of Non-claims .............237 C. Claim of Executor or administrator against the Estate .......................238 D. Payment of Debts ..................238 VII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS .... 240 A. Actions that may be brought against executors and administrators ..........240 B. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased 240 VIII. DISTRIBUTION AND PARTITION .... 241 A. Liquidation ..........................241 B. Project of Partition ................241 C. Remedy of an heir entitled to residue but not given his share ........242 D. Instances when probate court may issue writ of execution ..................242 IX. TRUSTEES .............................. 242 A. Distinguished from executor or administrator .............................242 B. Conditions of the Bond ............242 C. Requisites for the removal and resignation of a trustee .................242 D. Grounds for removal and resignation of a trustee ...............................243 E. Extent of authority of trustee ...243


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This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. ...... 243 X. ESCHEAT ................................ 243 A. When to file ........................ 243 B. Requisites for filing of petition .. 243 C. Remedy of respondent against petition; period for filing a claim ..... 244 XI. GUARDIANSHIP ........................ 244 A. General powers and duties of guardians ................................. 244 B. Conditions of the bond of the guardian .................................. 244 C. Rule on Guardianship over minors 244 XII. ADOPTION ............................. 248 A. Distinguish domestic adoption from inter-country adoption ................. 248 B. Domestic Adoption Act............ 248 XIII. WRIT OF HABEAS CORPUS ......... 249 A. Contents of the Petition .......... 250 B. Contents of the Return ........... 250 C. Distinguish Peremptory Writ from Preliminary Citation ..................... 251 D. When Writ Not Proper or Applicable 251 E. When Discharge Not Authorized . 251 F. Distinguished from Writ of Amparo and Habeas Data ......................... 252 G. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) ......... 252 XIV. WRIT OF AMPARO ................... 254 A. Coverage ............................ 254 B. Distinguish from Writ of Habeas Corpus and Habeas Data ................ 254

C. Distinguish Writ of Amparo From Search Warrant...........................254 D. Who may file .......................255 E. Contents of Return ................255 F. Omnibus Waiver Rule ..............256 G. Effect of Failure to File a Return 256 H. Procedure for Hearing on the Writ 256 I. Institution of Separate Actions ..256 J. Effect of Filing of a Criminal Action 256 K. Consolidation .........................256 L. Interim Reliefs Available to Petitioner and Respondent ..........................256 M. Quantum of Proof in Application for Issuance of Writ: Substantial Evidence .............................................257 XV. CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY........ 258 A. Differences under the Applicable Rules (Rule 103, Rule 108, RA 9048) ..258 B. Grounds for change of name .....258 XVI. ABSENTEES ........................... 258 A. Purpose of the Rule................258 B. Who may file; when to file .......259 XVII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY........ 259 A. Entries subject to cancellation or correction under Rule 108, in relation to RA 9048....................................259 XVIII. APPEALS IN SPECIAL PROCEEDING ............................................... 259 A. Judgments and orders for which appeal may be taken ....................260 B. When to appeal ....................260 C. Modes of appeal ....................260 D. Rule on Advance Distribution ....260


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2012

REMEDIAL

Criminal Procedure BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages


LAW REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Crim Pro Head | Arvin Razon Contributors | Jauhari Azis Ricardo Gutierrez • Ofelia Leano • Patricia Madarang • Ellery Magbato • Rafael Santos • Jamie Yu LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes

Criminal Procedure Criminal Procedure Civil Procedure Evidence Special Proceedings

I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI.

REMEDIAL LAW General Matters Prosecution of Offenses Prosecution of Civil Action Preliminary Investigation Arrest Bail Rights of the Accused Arraignment and Plea Motion to Quash Pre-trial Trial Judgment New Trial or Reconsideration New Appeal Search and Seizure Provisional Remedies

I. GENERAL MATTERS A. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused Jurisdiction over Subject Matter  Jurisdiction over the class of cases to which the particular case belongs; It is defined by law; determined by the extent of the penalty which the law imposes based on the facts as recited in the complaint/information constitutive of the offense charged. General rule: The court‘s jurisdiction to try a criminal action is to be determined by the law at the time of the institution of the action. [Palana vs People (2007)] Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction already obtained by a court. - Principle of adherence of jurisdiction/continuing jurisdiction- jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. Once vested, it cannot be withdrawn or defeated by a subsequent valid amendment of the information. [People vs Chupeco (1965)] Exception: Where the succeeding statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal, which will continue the proceeding. Jurisdiction over the Person of the Accused The person charged with the offense must have been brought to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. [Antiporda vs Garchitorena (1999), citing Arula vs Espino (1969)] Acquired either by:

 ARREST of person or  VOLUNTARY SUBMISSION by the person Voluntary appearance of the accused is accomplished by:  His pleading to the merits (filing a motion to quash (except if the ground is to question the jurisdiction of the court, e.g. re validity of arrest, over the person [Miranda vs Tuliao (2006)]), appearing for arraignment, or entering trial) or  By filing Bail Jurisdiction Over the Subject Matter Derived from the law. It can never be acquired solely by consent of the accused. The absence of court‘s jurisdiction over the subject matter may be raised at any stage of the proceeding. The right to make such objection is never waived.

Jurisdiction Over The Person of the Accused May be acquired by consent of the accused or by waiver of objections. Failure of the accused to make objection in time would constitute a waiver of the objection.

B. Requisites for exercise of criminal jurisdiction  WON the court has jurisdiction over the offense by virtue of the imposable penalty and its nature (SUBJECT MATTER JURISDICTION)  WON the court has jurisdiction over the person of the accused  WON the action has been filed within the TERRITORIAL JURIDICTION of the court - Refers to VENUE (see below) or the place where the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. [Sec 15(a), Rule 110] - For transitory/ continuing offenses, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People vs Grospe (1988)]

C. Jurisdiction of Criminal courts How Determined  Determined by the allegations of the complaint or information.  By examination of the complaint/information to ascertain that the facts set out and punishment fall under jurisdiction of court. [People vs Ocaya (1978)]  Jurisdiction over Complex Crimes (2003 Bar): lodged with the court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. [Cuyos vs Hon. Garcia (1988)]

REMEDIAL LAW REVIEWER Military Courts General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units who commit crimes under the RPC or special laws, regardless of who the co-accused or victims are.

Exception: When, as determined by the ordinary court during arraignment, the offense is serviceoriented, then it will be tried by the court martial. Provided: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts.

Jurisdiction of Courts MTC/MeTC/MCTC  Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32(1), BP 129]  Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof. [Sec. 32(2), BP 129] - Provided, however, that in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. [Sec. 32(2), BP 129] Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. [Sec. 32, BP 129]  Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution, October 15, 1991] - Violations of traffic laws/rules/ regulations; - Violations of rental law; - Cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000. Exception: a criminal case falling under the aforementioned list where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

RTC  Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court/tribunal/body. [Sec. 20, BP 129] Exception: Those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan, which shall hereafter be exclusively taken cognizance of by the latter. [Sec. 20, BP 129]  Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years, or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344]  Cases against minors cognizable under the Dangerous Drugs Act, as amended [RA 8369, Family Courts Act of 1997]  Violations of Republic Act No. 7610, the Child Abuse Act.  Cases of domestic violence against women and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. [RA 8369, Family Courts Act of 1997]  Violations of intellectual property rights [A.M. No. 03-03-03-SC (2003); RA 8293]  Money Laundering Cases [RA 9160] Exception: those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan

SANDIGANBAYAN  Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249: violations of RA 3019, RA 1379, and Chapter II, Section 2, Title VII, Book II of the RPC Officials enumerated are the ff: - Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (RA 6758) - Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989 - Members of the judiciary without prejudice to the provisions of the Constitution - Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution  Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office Requisites: - Accused is any one of the public officials enumerated in subsec. (a) of Sec. 4 of Ra 8249, grade 27 or higher - Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes - The offender commits such other offense or felony in relation to his office  Cases filed in pursuant to and in connection with EO 1, 2, 14, 14A, issued in 1986

13

REMEDIAL LAW REVIEWER MTC/MeTC/MCTC

14

RTC

SANDIGANBAYAN

 Violations of BP 22 [A.M. No. 00-1101-SC (2003)]  Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129]

4. When injunction may be issued to restrain criminal prosecution General rule: The prosecution of a criminal case, even at the stage of preliminary investigation and reinvestigation, may not be enjoined by prohibition/injunction. Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. Exceptions (Bar 1999)  To afford protection to the constitutional rights of the accused;  Necessary for the orderly administration for justice or to avoid multiplicity of actions;  There is a prejudicial question which is sub judice;  The acts of the officer are without or in excess of authority;  The prosecution is under an invalid law/ordinance/regulation;  When double jeopardy is clearly apparent;  The court has no jurisdiction over the offense;  A case of persecution rather than prosecution;  The charges are manifestly false and motivated by the lust for vengeance;  There is clearly no prima facie case against the accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]  Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

II. PROSECUTION OF OFFENSES 1. Criminal actions, how instituted (Bar 1999) In general A criminal action is commenced in this jurisdiction by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation.

Institution and Commencement of actions  For offenses which require a preliminary investigation pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine), the criminal action is instituted by filing the complaint with the appropriate officer for PI. [Sec. 1(a), Rule 110]

 In offenses cognizable by inferior courts, the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. [Sec. 1(b), Rule 110]  In Metropolitan Manila and other chartered cities, the complaint may be filed with the office of the public prosecutor unless otherwise provided in their charters. [Sec. 1(b), Rule 110]  The criminal action is commenced when the complaint or information is filed in court.

Effect of the Institution of criminal action on the prescriptive period (Bar 1993) General Rule: The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. [Sec. 1, Rule 110] Prescription is interrupted with the filing of the case even if the court is without jurisdiction, even if it be merely for purposes of preliminary examination or investigation. [Francisco vs CA (1983)] Exception: The Court held that the interruption of the prescriptive period upon the institution of the complaint under Sec.1 of Rule 110 does not apply to cases for violation of special acts and municipal ordinances. This is governed by Act No. 3326 and is interrupted only by the institution of judicial proceedings (not administrative proceedings) for its investigation and punishment. [Zaldivia vs Reyes (1992)] However, in Sanrio Company Ltd. vs Lim (2008), the SC confirmed that under Section 2 of Act 3326, the prescriptive period for violation of special laws starts on the day such an offense was committed and is interrupted by the institution of proceedings against the respondent. In this case petitioner filed its complaint-affidavit with the TAPP of DOJ, and as such the prescriptive period was tolled. In Panaguiton, Jr. vs DOJ (2008), the Court declared that they cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. It can also be effectively tolled by the filing of the BP 22 petition before the Office of the Prosecutor. In SEC v Interport Resources Corporation (2008), the Court held that the prescriptive period is interrupted by commencing the proceedings for the prosecution of the accused, accomplished by initiating the preliminary investigation by the SEC, which was declared as equivalent to the PI conducted by the DOJ in criminal cases.

REMEDIAL LAW REVIEWER Note: The above cases involve violation of special laws. [Riano]

2. Who may file them, crimes that cannot be prosecuted de officio (Bar 1990, 2000) General Rule: All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor [Rule 110, Sec. 5] The public prosecutor is a quasi-judicial officer and a representative of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. Exception: In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court‘s approval. The authority will continue up to the end of the trial even in the absence of a public prosecutor until revoked or withdrawn. The private prosecutor is the attorney representing the offended where the civil action for recovery of civil liability is instituted with the criminal case.

Cases that cannot be prosecuted de oficio Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party are the following:  Adultery/concubinage [Sec. 5, Rule 110]  Seduction, abduction, acts of lasciviousness  Defamation which consists of imputation of any of the foregoing offenses. Rationale: The aggrieved party might prefer to suffer the outrage in silence rather than go through the scandal of a public trial.

Offended parties who can file the complaint  In adultery and concubinage – The offended spouse. Both guilty parties should be included if both are alive. [Sec 5, Rule 110] However, a criminal prosecution will not prosper if the offended party consented to the offense.  Seduction, abduction and acts of lasciviousness – The offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by them. [Sec 5, Rule 110]  In oral defamation – can only be brought upon instance and upon complaint of the offended party.

Effect of  Death of offended party - Once a complaint is filed, the will of the offended party is ascertained and the action

proceeds. Death after filing the complaint would not deprive the court of the jurisdiction to try the case. - The State shall initiate the action on behalf of the offended party in case of his death/incapacity and he has no known parents/grandparents/ guardians. - In adultery/concubinage, such death does not extinguish the criminal liability of accused.  Desistance by offended party - It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. - An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action.  Pardon by offended party - In rape, seduction, abduction and acts of lasciviousness of a minor – The pardon will be effective if given by both parents and the offended party. - In seduction, abduction and acts of lasciviousness - Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5] - The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna (1902)] - If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender. General rule: Pardon must be made before the filing of the criminal complaint in court. Exception: In rape, where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence.  If there is more than one accused, the pardon must be extended to all offenders.  Marriage between offender and offended party.  Pardon or desistance extinguishes civil liability.  Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations. Under Sec. 27 of RA 7610, complaints on cases of unlawful acts mentioned in the law committed against children, may be filed by any of the ff:  Offended party  Parents or guardians  Ascendant or collateral relative within the third degree of consanguinity  Officer, social worker, or representative of a licensed child-caring institution  Officer or social worker of the DSWD  Barangay chairman

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REMEDIAL LAW REVIEWER  At least 3 concerned, responsible citizens where the violation occurred.

16

3. Criminal actions, when enjoined General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction. Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Exceptions (Bar 1999)  To afford protection to the constitutional rights of the accused;  Necessary for the orderly administration for justice or to avoid multiplicity of actions;  There is a prejudicial question which is sub judice;  The acts of the officer are without or in excess of authority;  The prosecutions is under an invalid law/ordinance/regulation;  When double jeopardy is clearly apparent;  The court has no jurisdiction over the offense;  A case of persecution rather than prosecution;  The charges are manifestly false and motivated by the lust for vengeance;  There is clearly no prima facie case against the accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]  Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

4. Control of prosecution General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. [Sec. 5, Rule 110] Exception: In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors,  The private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.  The authority may be revoked or withdrawn. [Sec. 5, Rule 110]  Criminal action is still prosecuted under the direction and control of the public prosecutor. [Riano]

Extent of the prosecutor’s control  Prior to the filing of the case - The prosecutor has the discretion to file or not to file a criminal action. - The prosecutor is vested with discretion as to who is to prosecute and for what; he cannot be compelled to file a particular information. However, if the evidence presented at the PI leaves no doubt as to what crime was committed and by whom, then mandamus is available to compel the prosecuting officer to file the corresponding complaint or information

in accordance with the evidence [Bernabe vs Bolinas, (1966)].  After a case is filed - Once a criminal case has been filed in court, it is the prosecutor‘s duty, regardless of his personal convictions or opinions, to proceed with the presentation of his evidence to enable the court to arrive at its own judgment as to the accused‘s culpability. - After an action has been filed in court, the prosecutor has no power to dismiss the action without the court‘s consent. While the Secretary of Justice has the authority to review the acts of his subordinates in criminal cases, the court has always has the discretion to try a motion to dismiss which the prosecution may file after the Secretary of Justice reverses an appealed decision. [Roberts Jr. vs CA, (1996)] The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice.

Effects of the lack of intervention by the fiscal in the trial Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it can‘t be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People vs Beriales, (1976)].

5. Sufficiency Information

of

Complaint

or

Complaint defined A sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. [Sec. 3, Rule 110]  Persons authorized to file the complaint: - Offended party - Any peace officer - Other public officer charged with the enforcement of the law violated.  Filed in the name of the People of the Philippines. [Sec 2, Rule 110]  Complaint refers to private crimes.  Criminal cases under the Revised Rules on Summary Procedure shall be either by complaint or by information; provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of an information (which means by the prosecutor), except when the offense cannot be prosecuted de oficio.

REMEDIAL LAW REVIEWER  The complaint must be under oath. But lack of oath is not a formal defect and will not invalidate a judgment.

Information defined An accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court. [Sec. 4, Rule 110; People vs Cinco (2009)]  It is filed by the prosecutor and need not be under oath. But it must be signed and subscribed by the fiscal/prosecutor.  What the prosecutor signs under oath is the certification that he has conducted the required preliminary investigation (PI). Lack of certification does not invalidate judgment. [People vs. Bulaong (1981)]  Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction. Lack of authority of the officer signing the information is an infirmity in the information, and cannot be cured by silence, acquiescence, or even by express consent. [Cudia v CA (1998)]  Information refers to public crimes.  The "complaint" referred to in Rule 110 contemplates one filed in court, not with the fiscal. In that case, the proceeding must be started by the aggrieved party himself.  As a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it.  But a "complaint" filed with the fiscal prior to a judicial action may be filed by any competent person. [Ebarle v. Sucaldito (1987)]

Form & Substance Sufficiency of complaint or information A complaint or information is sufficient if it states:  the name of the accused;  the designation of the offense given by the statute;  the acts or omissions complained of as constituting the offense;  the name of the offended party;  the approximate date of the commission of the offense; and  the place where the offense was committed. [Sec. 6, Rule 110] Test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty, of the offense charged. [Lazarte, Jr. vs Sandiganbayan (2009)] The purpose of the requirement for the information‘s validity and sufficiency is to enable the accused to suitably prepare for his defense, since he is presumed to have no independent

knowledege of the facts that constitute the offense. [People vs Cinco (2009)] Name of the accused  It must include the name and surname of the accused, as well as any appellation or nickname by which he has been or is known.  If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. His true name will be inserted if eventually disclosed or appears in some manner to the court. [Sec. 7, Rule 110]  If there are more than 1 accused, name all of them. [Sec. 6, Rule 110] Place of commission of offense General rule: It is sufficient if it can be understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court. Exception: If the particular place where it was committed:  Constitutes an essential element of the offenses charged; OR  Is necessary for its identification. [Sec. 10, Rule 110] Time of commission of the offense General rule: The precise date is not necessary. Exception: When the date is a material ingredient of the offense. [Sec. 11, Rule 110] The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly.  Need not be exact - As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused, then the information is valid.  When date is so remote: defective - The allegation in the information of ―on or about the year 1992‖ is defective as it violates Sec. 11, Rule 110 and the accused’s right to be informed of the nature and cause of the accusation against him, because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992.  Remedy in case of defect in averment of time - A motion for a bill of particulars under Sec. 6, Rule 116. - The accused may also file a MTQ on the ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him. But defect in the date is not a ground for MTQ under Rule 116.

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REMEDIAL LAW REVIEWER Name of the offended party [Sec. 12, Rule 110]

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 If an offense against person: Name and surname; nickname/appellation; fictitious name, if real name is unknown.  If an offense against property: - If name is unknown, particularly describe the property to identify the offense; - If the name is later known, insert it; - If a juridical person, name or known name; without need to aver that it is juridical.  Where the name of the injured party is necessary as matter of essential description of the crime charged, the complaint must invest such person with individuality by either naming him or alleging that his name is unknown.  In crimes against property, ownership must be alleged as matter essential to the proper description of the offense. [US vs Lahoylahoy (1918)] Designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly identified. [Sayson vs People (1988), cited in Ricarze vs CA (2007)]  A mistake in the name of the accused is not equivalent to a mistake in the identity especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime. [People vs Amodia (2009)] An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial. [Frias vs People (2007)] Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved for a bill of particulars or for quashal of information before arraignment, otherwise he is deemed to have waived his objections to such a defect. [People vs Teodoro (2009)]

6. Designation of Offense  Aver the acts and omissions constituting the offense.  Specify the qualifying and aggravating circumstances for them to be considered in the imposition of the penalty. [Sec. 8 and 9, Rule 110; People vs Tampos (2009)] (Bar 2001) This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof. In case of a conflict between the designation of the crime and the recital of ultimate facts constituting the offense, the latter prevails over the former. [People vs Quemeggen (2009)] Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to

make sure the accused fully understands what he is being charged with. [Guy vs People (2009)]

7. Cause of the Accusation A variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. [Matrido v People (2009)]

Purpose  To enable a person of common understanding to know what offense is intended to be charged;  To enable the court to pronounce proper judgment.

Allegations required to safeguard right to be informed  Allegations must be in ordinary or concise language, sufficient to enable a person of common understanding to know what offense is being charged.  This must be done both for the offense charged and the circumstances involved in its commission. [Sec. 9, Rule 110]  The prosecutor‘s characterization of the crime is immaterial and purposeless. The facts stated in the body of the complaint/information determine the crime of which the accused stands charged and for which he must be tried. Qualifying and aggravating circumstances must be alleged; otherwise, they are not to be considered even if proven during the trial. [Sec. 8, Rule 110]

What to allege  Where the law prescribes exceptions General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions.  Where exceptions form as ingredients of offense If the exception is needed for defining the offense, then the information should negate the exception. [US vs Chan Toco (1908)]  Where complex crime is charged Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the

REMEDIAL LAW REVIEWER defendant can only be convicted of the offense proven.

8. Duplicity of the Offense; Exception (Bar 2005) General rule: The information must charge only one offense. [Sec. 13, Rule 110] Objection to a complaint or information which charges more than one offense must be timely interposed before trial. [Sec 3, Rule 120] Failure to do so constitutes a waiver, [People v Tabio (2008)] and the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense. [Sec 3, Rule 120] Exception: When the law prescribes a single punishment for various offenses Purpose: To give the accused the necessary knowledge of the charge to enable him to prepare his defense. Hence, when an information charges more than one offense, the accused may file a MTQ on the ground of duplicity of offenses.

Several modes of committing offense not duplicitous General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. Exceptions:  Complex crimes  Special complex crimes  Continuous crimes  Crimes susceptible of being committed in various modes  Crimes which another offense is an ingredient [People vs Camerino (1960)]

9. Amendment or Substitution of complaint or information [Sec. 14, Rule 110] (Bar 2001, 2002) Amendments in form and substance before plea General rule: It must be made before the accused enters his plea. Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court. The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order.

Amendments made after plea and during trial  Formal – can only be made under two conditions - Leave of court must be secured - It does not cause prejudice to the rights of the accused. [Sec 14, Rule 110] The test as to WON a defendant is prejudiced by the amendment of information is – o WON a defense under the information as it originally stood would be available after the amendment is made, and o WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. [People vs Casey (1981)]  Substantial – proscribed. [People vs Zulueta (1951)] - Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. [Almeda vs Villaluz (1975)] - Exception: if it is beneficial to the accused. [Ricarze vs CA (2007)] Substitution – a complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy. [Sec 14, Rule 110] 

Subject to the Sec 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information.

Distinction between amendment (Bar 1994) AMENDMENT Formal or Substantial changes Can be effected without leave of court Only as to form, there is no need for another PI and retaking of plea Amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy

substitution

and

SUBSTITUTION Substantial change form original Must be with leave of court Another PI is entailed and accused has to plead anew Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy

19


20

10. Venue of criminal actions Place where action is to be instituted

11. Intervention of offended party [Sec. 16, Rule 110]

Venue of criminal actions shall be instituted and tried in the court of the municipality or territory  where the offense was committed; or  where any of its essential ingredients occurred. [Sec. 15(a), Rule 110]

General rule: An offended party has the right to intervene in the prosecution of a crime

How venue or jurisdiction determined

Exceptions:  Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party.  Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.  Offended party has already instituted action - Any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic vs Sunga (1988)] - When private prosecutor is allowed to intervene: [A.M. No. 02-2-07-SC] o All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. o In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. - The private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. [Sec. 5, Rule 110]

 Venue in criminal cases is jurisdictional, being an essential element of jurisdiction.  One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. The place where the accused was arrested is of no moment. [People vs Enriquez]

Where crime is continuing A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. [People vs Gorospe (1984)]

Written defamation  Action to be instituted and filed in the RTC of the province or city where the libelous article is printed and first published.  Additional rules: if offended party is - a private individual, the action may also be filed in the province where he actually resides at the time of the commission of the offense. - a public officer, the action may be filed in the court of the province or city where he held office at the time of the commission of the offense. [Art. 360, RPC] Note: If information is filed in the place where the defamatory article was printed or first published, it must state that the libelous material was either printed or first published in the place of the filing of the information, and not merely allege that the paper or magazine is of general/considerable circulation. [Riano on Foz, Jr. v People (2009)]

Offense committed on railroad  Action to be instituted and filed in the court of any municipality or territory where said train, aircraft or vehicle passed thru, including place of departure or arrival. [Sec. 15(b), Rule 110]  Rule applies only when the crime was committed in the COURSE of the trip.

Offense committed on a vessel Action may be instituted and tried in the court of the first port of entry or any municipality or territory where the vessel passed during such voyage, subject to generally accepted principles of international law. [Sec. 15(c), Rule 110]

Offense committed outside the Philippines Cognizable by the court where the criminal action is first filed. [Sec. 15(d), Rule 110]

Note: This is still subject to the control of the prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]

III. PROSECUTION OF CIVIL ACTION 1. Rule on implied institution of civil action with criminal action How instituted General rule: When the civil action for arising from the instituted with the 111]

a criminal action is instituted, the recovery of civil liability offense charged is deemed criminal action. [Sec. 1, Rule

Reason: principle that every person criminally liable for a felony is also civilly liable. [Art. 100, RPC]

REMEDIAL LAW REVIEWER Exception: If the offended party:  Waives the civil action;  Institutes the civil action prior to the criminal action; or  Reserves the right to institute it separately [ABSCBN Broadcasting Corporation vs Ombudsman (2008)] Exception to this exception  Claims arising out of a dishonored check under BP 22 where ―no reservation to file such civil action separately shall be allowed.‖ (Bar 2001; 2002)  Claims arising from an offense which is cognizable by the Sandiganbayan where there is likewise no right to reserve the filing of the civil action separately from the criminal action. [Sec. 4, PD 1606, as amended by RA 8249]  An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute it, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. [Garcia vs Florido (1973)]  Only civil liability arising from the crime charged as a felony is deemed instituted with the criminal action. Civil actions referred to in Civil Code 32, 33, 34, and 2176 shall remain ―separate, distinct and independent‖ of any criminal prosecution which may be based on the same act. [Phil. Rabbit Bus Lines Inc vs People (2004)]  Does not include civil liability that the offended party waives, reserves or those instituted prior to the criminal action.

2. When civil action may proceed independently  The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.  Procedure for making the reservation: - Filing a manifestation in the criminal case that the offended party is reserving his right to file a separate civil action; - Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action.  The rule requiring reservation does not apply to Arts. 32-34 and 2176, CC. These civil actions can be filed and prosecuted independently of the criminal action.  No counterclaim, cross-claim or 3rd-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. [Sec. 1, Rule 111]

3. When separate civil action is suspended  After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. [Sec 2, Rule 111]  The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime.  Civil actions mentioned in Sec. 3, Rule 111 under Arts. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

4. Effect of the death of accused or convict on civil action [Sec. 4, Rule 111; ABS-CBN Broadcasting vs Ombudsman (2008)]  If death is before arraignment – Dismissal of case without prejudice to filing of civil action against estate of the deceased.  If death is after arraignment and during pendency of criminal action – Extinguishes civil liability arising from the delict. Exception: Independent civil actions instituted under Arts. 32, 33, 34 and 2176 of the Civil Code, or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate.  If death is while appeal is pending – extinguishes criminal liability and civil liability based thereon. If the civil liability is predicated on a source of obligation other than delict, it survives notwithstanding the death of the accused [People vs Ayochok (2010)]

5. Prejudicial Question (1999 Bar) Elements of prejudicial question General Rule: a prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal.  The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal.  It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. [Ras vs Rasul (1980)]  Rationale: to avoid two conflicting decisions in the civil case and in the criminal case. [Sy Thiong Siou vs Sy Chim (2009)]

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Effect (Bar 1995, 1999, 2010) General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence. Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case.

Requisites [Sec. 7, Rule 111]  Previously initiated civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and  The resolution of such issue determines WON the criminal action may proceed.

Where to file petition [Sec. 6, Rule 111]  Office of the prosecutor (in the PI stage);  Court conducting the PI; or  Court where criminal action has been filed for trial, at any time before the prosecution rests. Note: The Rule precludes a motu proprio suspension of the civil action. [Riano]

6. Rule on Filing Fees in civil action deemed instituted with the criminal action Filing fees of civil action deemed instituted in criminal action Filing fees apply when damages are being claimed by the offended party. General Rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. [Sec. 1, Rule 111]  When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial;  In any other case—i.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages. [General vs Claravall (1991)] Exceptions: In criminal actions for violation of BP22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved. [A.M. No. 04-2-04]

IV. PRELIMINARY INVESTIGATION 1. Nature of right 2. Purposes of preliminary investigation

3. Who may conduct determination of existence of probable cause 4. Resolution of investigating prosecutor 5. Review 6. When warrant of arrest may issue 7. Cases not requiring a preliminary investigation 8. Remedies of accused if there was no preliminary investigation 9. Inquest

1. Nature of right Preliminary investigation, defined  It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. [Sec. 1, Rule 112]  The conduct of a PI is the initial step towards the criminal prosecution of a person.

Nature of the Right to PI  It is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process. [People vs Oandasa (1968)]  It is part of the guarantees of freedom and fair play. [La Chemise Lacoste, S.A. vs Fernandez (1984)]  The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right but a substantial right

Right to Preliminary Investigation  The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication.  When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court. [People vs Perez (1960)]  The right is deemed waived by: - the failure to claim it before the accused pleaded [People vs Magpale (1940)] - silence of the accused [People vs Mijares (1951)] - failure to request it within 5 days from time he learns of the filing of the complaint/information - when accused already posted bond for his release and subsequently went to trial without claiming his right to PI [People vs Selfaison (1961)] - a fortiori absence of the accused [Sec. 3(d), Rule 112; de Guzman vs People and Sandiganbayan (1982)] An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that

REMEDIAL LAW REVIEWER he raises the challenge before entering his plea [Sec. 26, Rule 114].

2. Purposes investigation

of

preliminary

 To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty. [Raro vs Sandiganbayan (2000)]  To protect the accused from the inconvenience, expense and burden of defending himself in a formal trial  To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials. [Tandoc vs Resultan (1989)]

Scope of PI  A PI is ―merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits‖ and does not place the persons against whom it is taken in jeopardy.  It ―is not the occasion for the full and exhaustive display of the parties‘ evidence‖ [Raro vs SB (2000)]  The accused has no right to cross-examine the witnesses which the complainant may present. [Paderanga vs Drilon, 1991]  A PI takes on an adversarial quality, because its purpose is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial before an accused person is placed on trial. [Raro vs SB (2000)]

3. Who may conduct determination of existence of probable cause  Generally [Rule 112, Sec. 2 as amended by A.M. No. 05-8-26-SC] - Provincial/city prosecutors and their assistants; - National and regional state prosecutors; - Other officers as may be authorized by law.  COMELEC, when vested COMELEC may conduct investigation as regards election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec. 265, Omnibus Election Code] The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Such involves the exercise of administrative powers, thus the COMELEC en banc, may in the first instance, may act on the investigation and subsequently decide on the filing of the criminal action. [Baytan vs COMELEC (2003)]

 Ombudsman The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. [Sec. 12, Art. XI, Consti] The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well. - If the offense comes within the jurisdiction of regular courts, the Ombudsman may endorse the same to, and deputize the provincial/ city prosecutor who has jurisdiction over the case for proper preliminary investigation. - If the offense is cognizable by the Sandiganbayan, the preliminary investigation has to be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman requiring that the complaint must be under oath. Note: RTC judges have NO power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005.

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Procedure for preliminary investigation Filing of the complaint [Sec. 3(a), Rule 112]  Stating the respondent‘s address  Include the affidavits of complainant and the witnesses, and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public  In such number of copies as there are respondents, plus 2 copies for the official file

Action of the investigating officer [Sec. 3(b), Rule 112] Within 10 days after the filing of the complaint, the investigating officer will either:  Dismiss, if he finds no ground to continue; or  Issue a subpoena to the respondent, attaching the complaint and other documents. If subpoena is not possible, the investigating officer shall decide based on what complainant presented. Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense.

Defendant’s counter-affidavit Must be made within 10 days from receipt of complaint, and must comply with the same requirements as a complaint. [Sec. 3(c), Rule 112] If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112]

 If the investigating officer finds no probable cause, he will dismiss the case. Otherwise, he will prepare an information and resolution.  He shall certify under oath in the information that: - He is an authorized officer; - He personally examined the complainant and witnesses; - There is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; - The accused was informed of the complaint and of the evidence submitted against him; and - The accused was given an opportunity to submit controverting evidence.

5. Review [Sec. 4, Rule 112] Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.  Within 10 days from receipt of the resolution, the prosecutor/Ombudsman will act on the case.  No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or Ombudsman. In case the investigation officer recommends the dismissal of the complaint but the prosecutor/Ombudsman disagrees, the latter may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI. Note: The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor.

6. When warrant of arrest may issue Hearing [Sec. 3(e), Rule 112] The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days.

If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial.

Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness.

Judges of RTC and inferior courts need not personally examine the complainant and his witnesses in the determination of PC. But he must personally evaluate the prosecutor‘s report and other sufficient supporting evidence, and on the basis thereof either dismiss the case, issue a warrant, or require further affidavits.

Parties may be present evidence, but they have no right to examine or cross-examine. Questions of parties shall be submitted to the investigating officer. Within 10 day after the investigation, the officer shall determine WON there is sufficient ground to hold respondent for trial.

4. Resolution of investigating prosecutor [Sec. 4, Rule 112]

Warrant that is simply based on report and recommendation of prosecution invalid; the judge must make an independent judgment of whether or not there is probable cause. This is because the probable cause for the prosecutor and judge are different:  PC for PROSECUTOR: whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial for which information is to be filed.

REMEDIAL LAW REVIEWER  PC for JUDGE: whether or not a warrant of arrest should be issued so that the accused may be held in custody in order not to frustrate the ends of justice. Judge may dismiss the case if the evidence on record clearly fails to establish a probable cause

While PI is a statutory and substantive right and a component part of due process, the absence of PI:  does not impair the validity of the information or otherwise render it defective  neither does it affect the jurisdiction of the court  nor constitute a ground for quashing the information.

Judge may order the prosecutor to present evidence within 5 days from notice and the issue may be resolved by the court within 30 days from filing of complaint/information.

The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI. [Villaflor vs Vivar (2001)]

7. Cases not requiring a preliminary investigation

If Preliminary conducted

Cases not requiring a preliminary investigation Nor Covered by Rule on Summary Procedure [Sec. 8, Rule 112]  Cases punishable by imprisonment of less than 4 years, 2 months and 1 day, filed with the prosecutor or MTC/MCTC Follow the procedure outlined in Sec. 3(a), Rule 112 above.

Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.

The judge may require submission of additional evidence within 10 days from notice, to determine the existence of PC. If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period.

If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if the accused had already been arrested) and hold him for trial.

If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.

8. Remedies of accused if there was no preliminary investigation Effect of denial of right to PI

investigation

is

being

Injunction and writs of restraint General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained, as such will unduly setback the administration of criminal justice. Exception: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional, or was "held invalid." [Hernandez vs Albano (1967)]

9. Inquest General rule: PI is required to be conducted before a complaint/ information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. [Sec. 1, Rule 112] Exception: When a person is lawfully arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. INQUEST – An informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. (DOJ-NPS Manual)  In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.  However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125,

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RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception.  After the filing of the complaint/ information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. [Sec. 6, Rule 112]

If the recommendation of the Inquest Officer for the release of the arrested or detained person is approved, the order of release shall be served on the officer having custody of the said detainee. Should it be disapproved, the arrested or detained person shall remain under custody, and the corresponding complaint/information shall be filed by the City or Provincial Prosecutor or by any Assistant Prosecutor to whom the case may be assigned.

Procedure for inquest proceedings Considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include:  affidavit of arrest, investigation report, statement of the complainant and witnesses, all of which must be subscribed and sworn to before him  other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person. It must be terminated within the period prescribed under the provisions of Article 125 of the RPC, as amended.

When the documents presented are not complete to establish probable cause, the Inquest Officer shall direct the law enforcement agency to submit the required evidence within the period prescribed under the provisions of Art. 125, RPC, as amended. Otherwise, the Inquest Officer shall order the release of the detained person.

If the Inquest Officer finds that probable cause exists, he shall forthwith prepare the corresponding complaint/information with the recommendation that the same be filed in court. The complaint/information shall indicate the offense committed and the amount of bail recommended, if bailable.

If the Inquest Officer finds no PC, he shall recommend the release of the arrested or detained person, note down his disposition on the referral document, prepare a brief memorandum indicating the reasons for the action taken, and forthwith forward the record of the case to the City or Provincial Prosecutor for appropriate action.

V. ARREST 1. Arrest, how made 2. Arrest without warrant, when lawful 3. Method of arrest a. By officer with warrant b. By officer without warrant c. By private person 4. Requisites of a valid warrant of arrest 5. Determination of probable cause for issuance of warrant of arrest 6. Distinguish probable cause of fiscal from that of a judge ARREST: Taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Rule 113, Sec. 1) Ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. However, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. Although in the guise of a request, it was obviously a command or an order of arrest that a person could hardly be expected to defy. [Sanchez v. Demetriou (1993)] 

Immunity from arrest - Parliamentary Immunity: Senators and Members of the House of Representatives, while Congress is in session and for offenses punishable by not more than 6 years imprisonment. (Art. VI, Sec. 11, 1987 Const.) - Diplomatic Immunity: Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity (RA 75)

REMEDIAL LAW REVIEWER 

DOJ Circular No. 50 (October 29, 1990): Prohibits the issuance of general warrants in a ―John Doe‖ information - Insofar as the warrant is issued against 50 "John Does" not one of whom the witnesses to the complaint could or would identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." [Pangandaman v. Casar (1988)]

warrant except in those cases expressly authorized by law. [Umil v. Ramos (1991)] Exceptions (Rule 113, Sec. 5) 

In flagrante delicto: Literally, caught in the act of committing a crime. When the person to be arrested has committed, is actually committing or is attempting to commit an offense in the presence of the peace officer or private person who arrested him. (Rule 113, Sec. 5(a)) - Requisites: o The person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and o Such overt act is done in the presence or within the view of the arresting officer. - ―In his presence‖ means: [People v. Evaristo (1992)] o He sees the offense, even though at a distance; o He hears the disturbances created by the offense and proceeds at once to the scene; or o Offense is continuing or has been consummated at the time arrest is made. - Entrapment o An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Sec. 5(a) of the Rules of Court. [Teodicio v. CA (2004)] - Buy-bust operation o When the appellant is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest. [People v. de Lara (1994)]



Hot pursuit arrest: When an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it (Rule 113, Sec. 5(b)) - Requisites o An offense has just been committed – implies immediacy in point of time; and o The person making the arrest has probable cause to believe, based on personal knowledge of facts, that the person to be arrested has committed it.

1. Arrest, how made Constitutional requirements on arrest The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Art. III, Sec. 2, 1987 Const.)

Modes of effecting arrest  

By an actual restraint of a person to be arrested. By his submission to the custody of the person making the arrest. (Rule 113, Sec. 2, Par. 1)

Whichever means is used to make an arrest, the term necessarily implies control over the person under custody and, as a consequence, a restraint on his liberty to the extent that he is not free to leave on his own volition. (Riano, 2011) It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. [Sanchez v. Demetriou (1993)]

No unnecessary violence No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, Par. 2) 

Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required.

Time to make arrest An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6)

2. Arrest without warrant, when lawful (1997, 2000, 2003, 2004 Bar) General rule: No peace officer or person has the power or authority to arrest anyone without a

 Personal knowledge must be based on ―probable cause‖ which means an actual belief or reasonable grounds of suspicion.  The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officer, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the

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REMEDIAL LAW REVIEWER probable cause of guilt of the person to be arrested.  A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. [Posadas v. Ombudsman (2000)]

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NOTE: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail. (Rule 113, Sec. 5, last par.) 

Arrest of escaped prisoner - When the person to be arrested is a prisoner who has escaped: (Rule 113, Sec. 5(c)) o From a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending; or o While being transferred from one confinement to another. - Escapee may be immediately pursued or rearrested without a warrant at any time and in any place within the Philippines. (Rule 113, Sec. 13) - Rationale: At the time of arrest, the escapee is in continuous commission of a crime (i.e. evasion of service of sentence).



Rights of the arresting officer 

To summon assistance. (Rule 113, Sec. 10) - He may orally summon as many persons as he deems necessary to assist him in effecting the arrest. - A person summoned shall assist in effecting the arrest when he can do so without detriment to himself.



To break into building or enclosure. (Rule 113, Sec. 11) - The person to be arrested is or is reasonably believed to be in said building; - He has announced his authority and purpose of entering therein; and - He has requested and been denied admittance.

Other lawful warrantless arrest   

Where a person who has been lawfully arrested escapes or is rescued. (Rule 113, Sec. 13), but the pursuit must be immediate. By the bondsman, for the purpose of surrendering the accused. (Rule 114, Sec. 23) Where the accused attempts to leave the country without permission of the court where the case is pending. (Rule 114, Sec. 23)

3. Method of arrest

Also applicable where there is a valid arrest without a warrant. Rationale: Person to be arrested cannot use his house/ building/enclosure as a shelter for crime. The inviolability of domicile cannot be used to shield arrest. 

a. By officer with warrant Duties of the arresting officer 



Execution of warrant (Rule 113, Sec. 4) - The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt. - The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. - In case of his failure to execute, he shall state the reasons therefor. The officer shall inform the person to be arrested of (1) the cause of the arrest and (2) the fact that a warrant has been issued for his arrest. (Rule 113, Sec. 7) - Exceptions: o When he flees o When he forcibly resists before the officer has opportunity to so inform him

o When the giving of such information will imperil the arrest - The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (Rule 113, Sec. 7) o This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment. [Mallari v. CA (1996)] To arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

To break out from the building/enclosure when necessary to liberate himself. (Rule 113, Sec. 12) Also applicable where there is a valid arrest without a warrant.



To search the person arrested for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense. (Rule 126, Sec. 13) Without need of a search warrant if it is incidental to a lawful arrest.

b. By officer without warrant Duties of arresting officer without warrant  

The officer shall inform the person to be arrested of (1) his authority and (2) the cause of the arrest. (Rule 113, Sec. 8) Exceptions: - When the person to be arrested is engaged in the commission of the offense

REMEDIAL LAW REVIEWER -

When he is pursued immediately after its commission When he has escaped, flees or forcibly resists before the officer has the opportunity to so inform him; or When the giving of such information will imperil the arrest. 

c. By private person (citizen’s arrest) Duties of private person effecting an arrest 

The private person shall inform the person to be arrested of (1) the intention to arrest him and (2) the cause of the arrest. (Rule 113, Sec. 9) Exceptions: Same as those for arrest by an officer without a warrant.



The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sec. 7. Otherwise, the private person may be held liable for illegal detention.

4. Requisites of a valid warrant of arrest Issuance 

Essential Requisites of a Valid Arrest Warrant (Art. III, Sec. 2, 1987 Const.) - It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce. - The warrant must particularly describe the person to be arrested.

Instances When Judge Issues Warrant of Arrest 



Upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. (Rule 112, Sec. 5(a)) - The judge does not have to personally examine the complainant and his witnesses. The prosecutor can perform the same functions. [Soliven v. Makasiar (1988)] - Bare certification by the fiscal is not enough. It should be supported by a report and necessary documents. [Lim v. Felix (1991)] - Examples of Evidence To Be Examined: Complaint, affidavits and counteraffidavits. Upon application of a peace officer and after personal examination by the judge of the applicant and the witnesses he may produce. - Rationale: There is yet no evidence on record upon which judge may determine the existence of PC. - Conditions: o The investigating judge must have examined in writing and under oath the

complainant and his witnesses by searching questions and answers. o He must be satisfied that PC exists; o There is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. [Samulde v. Salvani (1988)] A warrant of arrest has no expiry date. It is only subject to the requirements found in Rule 113, Sec. 4.

5. Determination of Probable Cause for issuance of warrant of arrest Probable cause test Probable cause, in connection with the issuance of a warrant of arrest, assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested. [People v. Tan (2009)] Probable cause demands more than suspicion but it requires less than evidence that would justify conviction. [People v. Gabo (2010)]

6. Distinguish probable cause of fiscal from that of a judge FISCAL Executive determination of PC Determination of PC to hold a person for trial W/N there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial

JUDGE Judicial determination of PC Determination of PC to issue a warrant of arrest W/N a warrant of arrest should be issued

Rule: The law requires personal determination on the part of the judge. The judge may rely on the report of the investigating prosecutor provided he also evaluates the documentary evidence in support thereof. Hence, the fiscal‘s finding of probable cause is not conclusive upon the judge as to his determination of whether or not there is indeed probable cause. [AAA v. Carbonell (2007)] The judge is never allowed to follow blindly the prosecutor‘s bare certification as to the existence of probable cause. [Borlongan v. Peña (2010)] RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF Policy  To value the dignity of every human being.  To guarantee full respect for human rights.

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Custodial Investigation shall include the practice of issuing an ―invitation‖ to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the ―inviting‖ officer for any violation of law. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers  The right to be assisted by counsel at all times. - The counsel must be one who is independent and competent. He shall be allowed to confer at all times with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by the investigating officer with a competent and independent counsel. - In the absence of a lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with Art. 125, RPC.  The right to remain silent.  The right to be informed of the above rights.  The right to be visited by the members of his immediate family, by his counsel, or by any nongovernmental organization, national or international. The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. Any waiver of the provisions of RPC 135 shall be in writing and signed by the person arrested, detained, or under custodial investigation in the presence of his counsel, otherwise the waiver shall be null and void and no effect. Penalty Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of six thousand pesos

(P6,000) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.  The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel. Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000). NOTE: Any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

VI. BAIL 1. 2. 3. 4.

Nature When a matter of right; exceptions When a matter of discretion Hearing of application for bail in capital offenses 5. Guidelines in fixing amount of bail 6. Bail when not required 7. Increase or Reduction of Bail 8. Forfeiture and Cancellation of bail 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation 10. Hold Departure Order & Bureau of Immigration Watchlist

1. Nature Definition Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified. [Rule 114, Sec. 1] Note: The bondsman or surety guarantees the appearance of the person seeking bail.

REMEDIAL LAW REVIEWER Purpose 1. 2. 3.

To relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. [ People vs. The Hon. Donato (2011)] To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Art. III, Sec. 14, Const] and To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral (1997)].

2.

b. When bail not available 1.

Capital Offense: An offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Rule 114, Sec. 6].  The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed.  Note R.A.. 9346 entitled ”An Act Prohibiting the Imposition of Death Penalty in the Philippines” enacted on June 24, 2006 repealing R.A. No. 8177 and R. A. No. 7659 and abolishing the death penalty.  RA 9346 now defines capital offenses as: Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment

It shall not constitute as a waiver of his right to challenge the legality of his arrest or the absence of PI [Rule 114, Sec. 26]. Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal.

2. When a matter of right; exceptions a. Bail as a Matter of Right When bail is a matter of right [Rule114, Sec. 4] a. b.

Before or after conviction by the MTC. Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua.

Note: The person seeking his provisional release under the auspices of bail need not wait for a formal complaint or information to be filed as it is available to all persons where the offense is bailable. [Paderanga vs Court of Appeals (1995)]. However, the person should seeking relief should be under custody of the law. The Court should not even allow a motion for bail to be set for hearing, unless it has acquired jurisdiction over the person of the accused and the case by its filing in court [Guillermo vs Judge Reyes (1995)].

How is custody acquired? 1.

By arrest whether with or without a warrant.

When evidence of guilt is strong in capital offenses or those punishable by reclusion perpetua or life imprisonment. Exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong.

Note: The purpose of bail only accrues when a person is arrested or deprived of his liberty. It is incongruous to grant bail to one who is free. Hence, only those who have either been arrested, detained or otherwise deprived of their liberty can invoke his right under the Constitution. From the moment he is placed under arrest, detention or restraint by officers of the law, he can claim this constitutional right [Feliciano vs Pasicolan (1965)].

Prosecution witnesses may also be required to post bail to ensure their appearance at the trial of the case where: 1. There is substitution of information [Rule 110, Sec. 4]. 2. To compel the appearance of a material witness who may not appear at the trial [Rule 119, Sec. 14].

Voluntary submission to the Court‘s jurisdiction [Santiago vs Vasquez (1993)].

2.

Bail in extradition proceedings The right to bail is available only in criminal proceedings. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. However, bail may be applied for and granted as an exception, only upon a clear and convincing evidence that once granted, the applicant will not be flight risk or will not pose danger to the community, and that there exists special humanitarian and compelling circumstances [Gov of USA vs Purganan & Jimenez (2002)]. Note: If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of any of the following: 1. Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration of the accused. 2. The accused previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification. 3. Commission of offense while under probation, parole or conditional pardon by the accused. 4. Probability of flight. 5. Undue risk that the accused may commit another crime during pendency of appeal.

c. Right to bail is not available to military personnel accused under general courts martial [Comendador v. de Villa (1991)].

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d. After a judgment of conviction has become final

32

If he applied for probation before finality, he may be allowed temporary liberty under his bail [Rule 114, Sec. 24].

e. After the accused has commenced to serve his sentence [Rule 114, Sec. 24] 3. When a matter of discretion [Rule 114, Sec. 5] 1. 2.

Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.  It may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court.  If the RTC decision changed nature of the offense from non-bailable to bailable, the application for bail can be resolved only by the appellate court.

Note: In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong [Rule 114, Sec. 8]. The prosecution must be given ample opportunity to show that the evidence of guilt is indeed strong. While the proceeding is conduced as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and speedy, lest its purpose be rendered nugatory [People vs Singh (2001)].  If bail is granted, provisional liberty continues under the same bail subject to the consent of the bondsman [Rule 114, Sec. 5].  If bail is denied by the RTC, the accusedappellant may challenge it by filing an application (and not a special civil action or a special proceeding) in the appellate court after it has acquired jurisdiction over the case. It shall be treated as an incident in the appeal. In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation. [Harvey v. Defensor-Santiago (1990)].

4. Hearing of application for bail in capital offenses NOTE: RA 9346, Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment

Conviction This refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the

conviction is reversed by the appellate court. [Section 13, Article III, Const.]

Prosecution has burden of proof At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. EVIDENCE OF GUILT in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances.

Regarding Minors Charged with a Capital Offense If the person charged with a capital offense is admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.

Duty of judge to conduct hearing Where the prosecution agrees with the accused‘s application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should make a finding that the evidence against the accused is strong [Gacal v. Judge Infante (2011)].

5. Guidelines in fixing amount of bail [Rule 114, Sec. 9] The judge who shall issue the warrant or grant the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: 1. Financial ability of the accused 2. Nature and circumstances of the offense 3. Penalty for the offense charged 4. Character and reputation of the accused 5. Age and health of the accused 6. Probability of the accused appearing at the trial 7. Forfeiture of other bail 8. Fact that accused was a fugitive from justice when arrested 9. Forfeiture of other bail 10. Pendency of other cases where the accused is on bail. Note: DOJ Department Circular No. 89 (2000 Bail Bond Guide) provides standards and criteria for prosecutor‘s recommendation of amount of bail to be granted, if possible, and the rules for the computation of bail.


6. Bail when not required [Sec. 16, Rule 114] 



When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof or the proceedings on appeal. If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment.

Note: No bail shall be required in prosecution of offenses covered by the Rule on Summary Procedure, EXCEPT: 1. When a warrant of arrest was issued for failure of the accused to appear when so required 2. When the accused is o A Recidivist o A Fugitive from justice o Charged with physical injuries o Has no known residence [RSP, Sec 10, 12]

7. Increase or Reduction of Bail After the accused is admitted to bail and for good cause, the court may increase or decrease the amount. INCREASED bail: Accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time. [Rule 114, Sec. 20]

2. 3. 4.

9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation Bail is no longer a waiver of these objections [Rule 114, Sec. 26; Leviste v. Alameda (2011)]. Provided that the proper objections are timely raised (i.e., before accused enters a plea), an application or an admission to bail shall NOT bar the accused from challenging or questioning the: 1. Validity of his arrest. 2. Legality of the arrest warrant. 3. Regularity of preliminary investigation 4. Absence of preliminary investigation The court shall resolve the objections as early as practicable but not later than the start of the trial of the case.

10. Hold Departure Order & Bureau of Immigration Watchlist 



REDUCED bail: Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. [Rule 114, Sec. 16]

8. Forfeiture and Cancellation of bail Forfeiture of bail [Rule 114, Sec. 21] If the accused failed to appear in person as required, bondsmen are given 30 days within which to: 1. Produce the body of the principal or give reason for the non-production. Bondsmen may:  Arrest the accused;  Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking. 2. Explain why the accused failed to appear.  If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail.  Bondsmen‘s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted.

Cancellation of bail [Rule 114, Sec. 22] 1.

Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled

upon a) surrender of the accused OR b) proof of his death. Upon acquittal of the accused Upon dismissal of the case Upon execution of judgment of conviction.

Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority [Rule 114, Sec. 23]. The accused may be prohibited from leaving the country during the pendency of his case [PP v. Uy Tuising (1935); Manotoc v. CA (1986)]. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be re-arrested without warrant [Rule 114, Sec. 23].

Hold-Departure/ Watchlist/ Allow Departure Orders  A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circular No. 39-97 (June 19, 1997)]. 

SC Circular 39-97 deals with criminal cases pending in the RTC. This created a void, as to those cases pending in the MTC as well as those under preliminary investigation. [Whereas clause of DOJ Circular No. 41]

When it may issue

HOLD DEPARTURE ORDER Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of first-level courts (MeTC, MTC,

WATCHLIST ORDER Against the accused, irrespective of nationality, in criminal cases pending before the RTC Against the

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REMEDIAL LAW REVIEWER HOLD DEPARTURE ORDER MCTC)

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Validity

Grounds for lifting or cancellation

5 years reckoned from the date of its issuance, unless sooner terminated

When validity has expired

the period already

When the accused has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled

a) Against the accused in criminal cases falling within the jurisdiction of courts below the RTCs,

WATCHLIST ORDER respondent, irrespective of nationality, in criminal cases pending preliminary investigation, PFR, or MR before the DOJ or any of its prosecution offices Against any person pursuant to the ―AntiTrafficking in Persons Act of 2003‖ (RA 9208) or in the interest of national security, public safety or public health 60 days reckoned from the date of its issuance, unless sooner terminated or extended for a non-extendible period of not more than 60 days When the validity period has already expired When the accused has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge When the PI is terminated, or when the PFR or MR has been denied and/or dismissed

b) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government. c) The Secretary of Justice may likewise issue an HDO against any person, either motu proprio, or upon the request by the Head of a Department of the Government, the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health. 

A Watchlist Order may also issue under any of the above grounds as well as in connection with RA 9208 or the Anti-Trafficking in Persons Act



Any HDO shall be valid for 5 years, unless sooner terminated while any Watchlist Order shall be valid for 60 days, unless sooner terminated or extended for a maximum of 60 days



A HDO/WLO may be lifted or cancelled when: 1. The validity period of the order has expired 2. When the accused has been acquitted or otherwise allowed to leave the country 3. When the case is terminated or the person is discharged as a witness or otherwise allowed to leave the country



Allow Departure Orders (ADOs) may issue for exceptional reasons to allow the person to leave upon submission of the following: 1. An affidavit of purpose, including an undertaking to report to the DOJ immediately upon return 2. Authority to travel or travel clearance from the court or appropriate government office or from the investigating prosecutor

VII. RIGHTS OF THE ACCUSED 1. Rights of accused at the trial 2. Rights of persons under Investigation

Custodial

1. Rights of accused at the trial [Rule 115] 1) To be presumed innocent;



Thus the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO, Watchlist Orders, and Allow Departure Orders.





The Secretary may issue HDOs in the following cases:



Until the contrary is proved beyond reasonable doubt - Accusation is not synonymous with guilt. [People v. Dramayo (1971)] Presumption of regularity in the performance of official duty should by itself

REMEDIAL LAW REVIEWER prevail over the presumption of innocence [People v. Ong (2004)]



2) To be informed of the nature and cause of accusation;



 

 



Offense must be clearly charged in the information. [People v. Ortega (1997)] Charge must be set forth with sufficient particularity to enable the accused to intelligently prepare his defense. [Balitaan v. CFI of Batangas (1982)] The purpose is served by arraignment. [Borja v. Mendoza (1977)] The title of the complaint, or the designation of the offense charged or the particular law violated is not controlling. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. [People v. Dimaano (2005)] It is a basic constitutional right of the accused to be informed of the nature and cause of accusation against them. It would be a denial of accused-appellant‘s basic right to due process if he is charged with simple rape and consequently convicted with certain qualifying circumstances which were not alleged in the information [People v. Lagarde (2009)]

3) To be present and defend in person OR by counsel;

  

6) Right to defend in person: Only when it sufficiently appears that he can protect his rights without the assistance of counsel (Sec. 1[b], Rule 115, Rules of Court)

7) To testify as witness in his behalf;  



This right may be waived when: (1) The accused is absent without just cause at the trial of which he had notice; or (2) The accused under custody escapes, until custody over him is regained. However, presence is mandatory: a. For purposes of identification; b. At arraignment; [Rule 116, Sec. 1(b)] c. At the promulgation of judgment; Exception: If the conviction is for a light offense. [Rule 120, Sec. 6]



Trial in absentia (1998 Bar): Requisites: [Parada v. Veneracion (1997)] a. Prior arraignment; b. Proper notice of the trial; c. Failure to appear is unjustifiable.



 

 

Effects: Waiver of right to be present, right to present evidence and right to crossexamine witnesses. [Gimenez v. Nazareno (1988)]

5) Right to counsel: It means reasonably effective legal assistance. [Gideon v. Wainright (1963)] It is absolute and may be invoked at all times, even on appeal. [Telan v. CA (1991)]

But subject to cross-examination on any matter covered by his direct examination. (Sec. 1[d]. Rule 115). Silence will not, in any manner, prejudice him.

8) Right against self-incrimination; (2005 Bar)

4) Right to be present at every stage of the proceedings:



Duty to appoint counsel de oficio is mandatory only at the time of arraignment. [Sayson v. People (1988)] Violation of this right entitles the accused to new trial. [People v. Serzo (1997)] It may be waived, so long as not contrary to law, public order, public policy, morals or good customs. The waiver must be unequivocally, knowingly and intelligently made [People v. Nicandro (1968)] The right to counsel may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused [People v. Del Castillo (2004)]



The privilege is expressed in the following provisions: - ―No person shall be compelled to be a witness against himself‖ (Sec. 17, Art. III, Philippine Constitution) - ―In all criminal prosecutions, the accused shall be entitled to the following rights xxx (e) To be exempt from being compelled to be a witness against himself‖ (Sec. 1[e], Rule 115) Compulsion includes not only violence but also moral coercion. [Chavez v. CA (1968)] Covers only testimonial compulsion and production of incriminating documents. It does not include examination of his body as evidence when it may be material. [US v. Tan Teng (1912)] An accused ―occupies a different tier of protection from an ordinary witness.‖ He is entitled 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be crossexamined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. [People v. Ayson (1989)] The questions on cross examination should be on matters related to his direct examination. [People v. Judge Ayson (1989)]

9) Right to confrontation; 

Applies to any witness against the accused at the trial

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 

Includes testimony of a deceased or absentee witness This right is waived by non-appearance. [Carredo v. People (1990)] Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness. [People v. Lavarias (1968)]

1) To be assisted by counsel at all times.  

Waiver of the right to counsel must be made with the assistance of counsel. [Art. 3, Sec. 12(1), Consti] Specifically in the following instances: - Signing of the written custodial report; Signing of the written extra-judicial confession (2008 Bar) In the absence of counsel and upon valid waiver, it may be made in the presence of any his parents, elder brothers and sisters, spouse, the municipal mayor, the municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him.

10) Right to compulsory process; 

 

This right may be invoked by the accused to secure the attendance of witnesses and the production of witnesses in his behalf. This is a constitutional right embodied in Sec. 14(2), Art. III of the Constitution. The trial court should not delegate to the accused the responsibility of getting his witnesses. If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary. [People v. Montejo (1967)]



11) Right to speedy, impartial, and public trial; 





In all criminal prosecutions, the accused shall enjoy the right to have a speedy, impartial and public trial. [1987 Constitution, Article III Sec. 14 (2)] This right to a speedy trial has consistently been defined by the Court substantially ―as one free from vexatious, capricious and oppressive delays, its purpose being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose‖ [Riano, 2010] Remedy against denial of right: a) MTD; b) Dismissal, subject to rules on double jeopardy. [SC Circular 38-98] c) Mandamus. [Vide Abadia v. CA (1994)]







In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law [Hilario v. People (2008)] An appeal in criminal case opens the entire case for review and the appellate court may correct even unassigned errors [People v. Tambis (2008)] The right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost. [People v. Sabellano (1991)] If the accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal. [People v. Omar (1991)]

2. Rights of persons under Custodial Investigation [Sec. 2, RA 7438]

The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer [Lumanog v. People (2010)]

2) To be informed, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. 



12) Right to appeal; 

Signing of the waiver to the provisions of Art. 125, RPC.

If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer. Assisting counsel may be any lawyer, except those: - Directly affected by the case; - Charged with conducting preliminary investigation; - Charged with the prosecution of crimes; [Sec. 3, RA 7438]

3) To be allowed visits by or conferences with: 

 



Any member of his immediate family ("Immediate family" includes his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward), or Any medical doctor or Priest or religious minister - chosen by him or by any member of his immediate family or by his counsel, or by Any national NGO duly accredited by the Commission on Human Rights or by any

REMEDIAL LAW REVIEWER international NGO duly accredited by the Office of the President.

Consequences of violation of custodial rights 





Failure to inform - Any arresting public officer or employee, or any investigating officer, shall suffer a fine of P6,000.00 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both. - The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification. Obstruction, prevention or prohibition of right to visits or conferences - Any person guilty thereof shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years and a fine of P4,000.00 Inadmissibility of evidence does not preclude conviction on other evidence

How arraignment made 1)

The Court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC for the latter to attach the same to the record of the case.

The court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him.

Arraignment shall be made:  Within 30 days from the date the court acquired jurisdiction over the person of the accused, unless a shorter period is provided  In the presence of the accused who must personally enter his plea, and of the private offended party for purposes of: - Plea bargaining (except for violations of the Dangerous Drugs Act) - Determination of civil liability - Other matters requiring his presence  Before the court where the complaint or information was filed or assigned for trial  By the judge or clerk in open court by furnishing the accused with a copy of the complaint/information, reading the same in a language or dialect known to him, and asking whether he pleads guilty or not guilty

VIII. ARRAIGNMENT AND PLEA 1. Arraignment and Plea, how made 2. When should plea of NOT GUILTY be entered 3. When may accused enter a plea of guilty to a lesser offense 4. Accused plead guilty to capital offense, what the court should do 5. Searching Inquiry 6. Improvident plea 7. Grounds for suspension of arraignment

1. Arraignment and Plea, how made Definition ARRAIGNMENT is the stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty. [Rule 116, Sec. 1(a)]

In general

If the accused pleads NOT guilty to the crime charged, s/he shall state whether s/he interposes a negative or affirmative defense. [RA 8493]

A negative defense will require the prosecution to prove the guilt of the accused beyond reasonable doubt.

It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [Borja v. Mendoza (1977)]

An affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence. [RA 8493] Note: The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. [Rule 116, Sec. 1(g)] 

In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. [Sec. 1(f), Rule 116; SC AM No. 03-1-09-SC Part B(2)]

37


NO ARRAIGNMENT IN ABSENTIA [Nolasco v. Enrile (1985)]- The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court. - There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void since (1) the issues are not joined and (2) the right to be informed of the nature and cause of accusation is violated.

2)

If the accused is under preventive detention



The case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint. The accused shall be arraigned within 10 days from the date of the raffle.

38



2. When should plea of NOT GUILTY be entered Plea of NOT GUILTY to be entered for the accused when he either: [Rule 116, Sec. 1(c)]   

Refuses to plead Makes a qualified plea of guilty Plea of guilty, but accused presents exculpatory evidence

3. When accused may enter a plea of guilty to a lesser offense Plea of guilty to a LESSER OFFENSE [Rule 116, Sec. 2] 



At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary

4. Accused plead guilty to capital offense, what the court should do [Sec. 3, Rule 116]   

Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea Require the prosecution to prove the accused‘s guilt and the precise degree of his culpability Allow the accused to present evidence in his behalf

5. Searching Inquiry Plea of guilty to a CAPITAL OFFENSE [Rule 116, Sec. 3]





The procedure in Sec. 3, Rule 116 is mandatory. Failure to observe the duties of the trial judge amounts to grave abuse of discretion. [People v. Devico (1997)] - The plea must be clear, definite and unconditional. There must be well-informed understanding and full realization of the consequences. - It must be based on a free and informed judgment. Mere warning of facing the supreme penalty of death is insufficient. - The judge must ask whether the accused was assisted by counsel during CI and PI; ask questions on age, educational attainment and socio-economic status; and ask the defense counsel WON he conferred with the accused. [People v. Nadera (2000)] Rationale: To proceed with more care where the possible punishment is in its severest form; to avoid improvident pleas of guilt. [People v. Samontanez (2000)]

6. Improvident plea Improvident plea of guilty to a capital offense IMPROVIDENT PLEA - Plea without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice. [Black’s Law Dictionary] General rule: An improvident plea should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction. [People v. De Ocampo Gonzaga (1984)]. The case should be remanded to the lower court for further proceedings. Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense. Where the TC receives evidence to determine whether the accused has erred in admitting his guilt, the manner in which the plea is made – whether improvidently or not - loses legal significance since the conviction is based on the evidence proving the commission by the accused of the offense charged. [People v. Alborida (2001)]

7. Grounds for suspension arraignment [Rule 116, Sec. 11]

of

1. Unsound mental condition of the accused at the time of the arraignment.  Degree of unsoundness of mind required: The accused can neither comprehend the full import of the charge nor can he give an intelligent plea.  The court shall order his mental examination and, if necessary, his confinement.  The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and

REMEDIAL LAW REVIEWER defense counsel had called attention to. [People v. Alcalde (2002)]  An insane person within the meaning of Art. 12, RPC must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. Mere abnormality of mental faculties does not exclude imputability. [People v. Catanyag (1933)]  3 major criteria to determine insanity: [People v. Dungo (1991)] - DELUSION TEST – Insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances. - IRRESISTIBLE IMPULSE TEST – The accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed. - RIGHT AND WRONG TEST – A perverted condition of mental and mortal faculties as to render him incapable of distinguishing between right and wrong  Tests to determine insanity: [People v. Pascual (1993)] - TEST OF COGNITION – Complete deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction. - TEST OF VOLITION – A total deprivation of free will.

2. Prejudicial question exists  Rationale: A prejudicial question would be determinative of guilt or innocence.  It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment.

3. Pending petition for review of the resolution of the prosecutor with the DOJ or Office of the President.  The accused should file a motion to suspend and to secure a ruling on his petition for review within 60 days from the filing of the petition.  Rationale: Need to observe judicial courtesy and to avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense.

IX. MOTION TO QUASH 1. 2. 3. 4.

Grounds Distinguish from demurrer to evidence Effects of sustaining the motion to quash Exception to the rule that sustaining the motion is not a bar to another prosecution 5. Double Jeopardy 6. Provisional Dismissal

1. Grounds [Rule 117, Sec. 3] (1998 Bar)

The ff. grounds for MTQ are EXCLUSIVE: 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged. 3. Court trying the case has no jurisdiction over the person of the accused. 4. Officer who filed the information had no authority to do so. 5. The information does not conform substantially to the prescribed form. 6. More than one offense is charged Exception: When a single punishment for various offenses is prescribed by law 7. Criminal action or liability has been extinguished. 8. Averments which, if true, would constitute a legal excuse or justification. 9. Accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Double Jeopardy Rule) Note: 1. Non-inclusion of an accused is not a valid ground for MTQ. 2. An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. [People v. Salazar (2010)] 3. The absence of a preliminary investigation or inability to participate in the preliminary investigation on the ground of the accused not having been served with a subpoena is not a proper ground for a motion to quash but a petition for reinvestigation [Rodis v. Sandiganbayan (1988)] 4. The absence of probable cause for the issuance of a warrant of arrest is not a ground for the quashal of the information but is a ground for the dismissal of the case [People v. Sandiganbayan (439 SCRA 390)] 5. Facts that constitute the defense of the petitioners against the charge under the information must be proved by them during trial. Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense [Soriano v. People (2009)] Although the rule is that grounds not asserted in the motion to quash are waived, the following objections are not subject to waiver: 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged 3. Criminal action or liability has been extinguished 4. Double jeopardy 1) Facts Charged do not Constitute an Offense  In all criminal cases, the accused should be informed of the nature and the cause of the accusation against him.

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40

 An information which does not charge an offense or does not allege essential elements of a crime is void. TEST: WON the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined by law [People vs Abad (1997)].  That a) the missing element may be proved during the trial or that b) the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People vs Asuncion (1988)].  Instead of dismissing, the court should give the prosecution an opportunity to amend the information [Rule 117, Sec. 4]. a. Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, the MTQ shall be granted [Rule 117, Sec. 4]. b. When the prosecutor dismisses the case, the prosecutor should file a valid information, not a petition for review for certiorari.  The defect is not cured by a failure to move to quash or by a plea of guilty. The failure does not imply a waiver of the defects that go to the jurisdiction of the offense or to lack in some of the essential elements of the offense charged [Suy Sui v. People (1953)]. General Rule: In a MTQ, facts other than those alleged in the complaint/information may NOT be considered by the court. Exceptions: a. Facts already admitted by the prosecution [People vs Navarro]. b. Undisputed facts apparent from the records of the PI and not denied by the prosecutor [Salonga v. Pano (1985)]. c. Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information [People v. de la Rosa (1988)]. d. ROC expressly permits the investigation of facts alleged [People v. Alagao (1966)] [Rule 117, Sec. 2(f)(h), 4 & 5]. Rationale: It would be pure technicality for the court to close its eyes to said facts, refuse to quash the information, and require trial. 2) Court has No Jurisdiction over the Offense Charged Jurisdiction over the subject matter: The power to adjudge concerning the general question involved. Note:  In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Rule 110, Sec. 15; Lopez v. City Judge (1966)].  The court cannot take jurisdiction over a person charged with an offense committed outside its

territory. If the evidence adduced show that offense was committed somewhere else, the court should dismiss the action for want of jurisdiction [Uy vs CA (1997)].  In private crimes, the complaint of the offended party is necessary to confer authority to the court.  If the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred from assailing such jurisdiction on appeal.  The court had jurisdiction over the case since, for as long as he continues to evade the service of his sentence, he is deemed to continue committing the crime, and may be arrested without warrant at any place where he may be found [Parulan vs Director of Prisons (1968)]. 3)

Court has no Jurisdiction over the Person of the Accused

How jurisdiction is acquired a. By arrest of the accused or his voluntary appearance in court. b. By allowing himself to be arraigned without questioning the legality of his arrest  It is waivable expressly or by implication, unlike jurisdiction over the territory and the subject matter.  When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction of the court [Sanchez v. Demetriou (1993)].  If the accused believes his arrest to be illegal, he should move to quash the information on such ground. However, illegality of the arrest is waivable as it affects only the jurisdiction of the court over the person of the accused [People vs Meris (2000)].  When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead vs Argel (1982)]. 4)

Officer who Filed Authority to Do So

Information

had

no

Authority to file and prosecute criminal cases is vested in: a. Provincial fiscals and their assistants. b. City fiscals and their assistants. c. Chief State Prosecutor and his deputies. Note:  A lawyer appointed by the DOJ Secretary may also file an information.  The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense [Cudia vs CA (1998)]. Otherwise, the information filed by him would be invalid and can be quashed on that ground.  An Information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. Authority to sign may be challenged if the prosecutor files

REMEDIAL LAW REVIEWER the information without the approval of the Ombudsman.

7) Criminal Action Extinguished

The Ombudsman cannot sign when the information is filed in the regular courts [Uy vs Sandiganbayan (1999)].

How criminal liability is extinguished a. Death of the accused - Liability for pecuniary penalties is extinguished only if death occurs before final judgment.

 Election Offenses: Must be signed by the duly deputized prosecutors and legal officers of the COMELEC.  Lack of authority of the officer to is not cured by silence, acquiescence, express consent or even by amendment. 5)

Complaint/Information does not Conform Substantially to the Prescribed Form

or

Liability

has

been

b. Service of Sentence - Execution must be by virtue of a final judgment and in the form prescribed by law. c. Amnesty d. Absolute pardon e. Prescription of the crime

 The formal and substantial requirements are provided for in Rule 110, Sec. 6-12. General Rule: Lack of substantial compliance renders the accusatory pleading nugatory. Exception: Mere defects in matter of form may be cured by amendment. - Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia (1997)].  Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Rule 116, Sec. 9]. 6)

f.

Prescription of the penalty

g. Pardon in private offenses Note:  Enjoyment of an accrued right cannot forever be left on a precarious balance [People vs Reyes (1989)].  Protection from prosecution under a statute of limitation is a substantive right [People vs Sandiganbayan (1992)]. ABSOLUTE PARDON Complete delivery

upon

its

More than One Offense is Charged

General Rule: The complaint or information must charge only one offense [Rule 110, Sec. 13]. Exception: Those cases in which existing laws prescribe a single punishment for various offenses. a. Complex and compound crimes, except where one offense was committed to conceal another. b. An offense incidental to the gravamen of the offense charged. c. A specific crime set forth in various counts, each of which may constitute a distinct offense. The narration of the specific of the specific acts is considered a bill of particular of facts upon which the inference of guilt of the accused may be based [People vs Yap (1968)] Note:  Waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of 2 or more separate offenses in the same information [People vs Villamor (1998)].  It is not tantamount to duplicity of offenses. An offense is committed in different modes and is alleged to have been committed in the 2 or more modes specified [Ku Bo Lin vs CA (1992)].  If the criminal acts are committed on different occasions, each constitutes a separate offense.

PARDON Grant of the executive Private, though official, act Must be proved

pleaded

and

Granted after conviction

Looks forward – releases from consequences of conviction

Extended to pardoned defendant alone and to no other

CONDITIONAL PARDON Only upon the acceptance since accused may view liability less onerous than the terms AMNESTY Grant by the President with concurrence of majority of Congress Public act Court must take judicial notice [People v. Vera (1990)] Usually for those subject to trial but have not yet been convicted, but can also be available even after institution of the criminal action and sometimes after conviction Looks backward – abolishes offense itself; completely extinguishes the penalty and all its effects [People v. Vera (1990)] Granted to all persons guilty of a crime (generally, political cases like rebellion, sedition, treason), and often conditioned upon

41


42

their return to obedience and duty within a prescribed time

Prescription of the Crime Definition: It is the loss or waiver by the state of its right to prosecute a crime [People vs Castor (1954)]. Computation of Period [Art 9, RPC] 1. Commencement: From the day on which the crime is discovered by the offended party, the authorities or their agents. 2. Interruption: Upon the filing of the complaint or information General Rule: Includes complaint filed with the proper officer for PI. Exception: Period for offenses penalized by special laws and ordinances is interrupted only by filing in court. Commences to run again: When proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him Note: Prescription shall not run when the offender is absent from the Philippines. Manner of computing time:  1 yr = 365 days  1 month = 30 days, unless specified  1 day = 24 hours  Nights = sunrise to sunset  First day shall be excluded, while last day included Note: The rule that if the last day falls on a Sunday or a holiday, the act can still be done the following day does NOT apply to the computation of the period of prescription of a crime. Information concerning said felony cannot be filed anymore on the next working day as the offense has by then already prescribed. Prescription of a continuing crime: It is counted from the latest or last act constituting the series of acts continuing the single crime [People vs Castaneda (1990)]. Prescription Periods: [Art 90, RPC]  20 yrs – Death and Reclusion Perpetua  15 yrs – Other afflictive penalties  10 yrs. – Correctional penalties; except Arresto Mayor, which prescribes in 5 yrs.  1 yr. – Libel and similar offenses;  6 mos. – Oral defamation and slander by deed  2 mos. – Light offenses  When the penalty fixed is a compound one, the highest penalty shall be made the basis of the application of letters a-c

Prescription of the Penalty Definition: It is the loss or waiver by the State of its right to demand service of the penalty imposed.

When and penalties prescribe: [Art 92, RPC]  20 yrs – Death and Reclusion Perpetua  15 yrs – Other afflictive penalties  10 yrs – Correctional penalties, except Arresto Mayor which prescribes in 5 yrs  1 yr – light penalties Act No. 3326 governs period of prescription for violation of special laws. Where the accused is found to have committed a lesser offense included in the offense charged, he cannot be convicted of the lesser offense if it has already prescribed [Magat vs People (1991)]. Computation of period: [Art 91, RPC] 1. Commencement: From the date when the culprit should evade the service of his sentence. 2. Interruption: If the defendant should give himself up, be captured, should go to some foreign country with which this Government has no extradition treaty, or should commit another crime before the expiration of the period. Pardon In Private Offenses (seduction, abduction, acts of lasciviousness, rape)  It extinguishes the criminal action or remits the penalty already imposed. General Rule: Pardon should be given before the filing of the information Exception: Marriage between the offended woman and the offender [Art 344, RPC; People vs Lualhati (1989)]. 

Applicable to co-principals, accomplices and accessories. - If the victim is a minor: Pardon of offended party and of both parents is required [People vs de la Cruz (1993)].

8) Contains Averments Which, if True, Would Constitute a Legal Excuse or Justification

Justifying Circumstances [Art 11, RPC] a)

Acts in defense of his person or rights Requisites:  Unlawful aggression;  Reasonable necessity of means employed;  Lack of sufficient provocation.

b)

Acts in defense of the person or rights of his  Spouse;  Ascendants;  Descendants;  Legitimate/natural/adopted brothers or sisters;  Relatives by affinity in the same degrees;  Relatives by consanguinity within the 4th civil degree. - Requisites: o unlawful aggression o reasonable necessity of means employed o In case provocation was given by the person attacked, the one

REMEDIAL LAW REVIEWER making the defense had no part therein. c)

d)

Acts in defense of the person or rights of a stranger: Requisites:  unlawful aggression  reasonable necessity of means employed  the person defending should not be induced by revenge or resentment or other evil motive. Act which causes damage to avoid evil or injury Requisites:  Evil sought to be avoided actually exists;  Injury feared greater than that done to avoid;  No other practical and less harmful means.

e)

Fulfillment of a duty or lawful exercise of a right or office

f)

Obedience to an order issued by a superior for some lawful purpose

MTQ order the filing of a new complaint or information)

DEMURRER TO EVIDENCE another information or appeal by the prosecution

If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies

The order denying the motion for leave to file a demurrer ―shall not be reviewable by appeal or by certiorari before judgment‖ [Sec. 23, Rule 119]

3. Effects of sustaining the motion to quash Court order sustaining motion 

Exception: If MTQ was based on the ff: 1. Criminal action or liability has extinguished 2. Double jeopardy

Exempting Circumstances [Art 12, RPC] a)

Imbecile or Insane Exception: Insane acting during a lucid interval

b)

Person under 9 yrs old

c)

Person over 9 yrs and under 15 yrs Exception: If he acted with discernment

d)

Causes injury by mere accident, without fault or intention, while performing a lawful act with due care

e)

Under compulsion of irresistible force

f)

Under impulse of uncontrollable fear or greater injury

g)

Fails to perform an act required by law when prevented by some lawful insuperable cause

2. Distinguish evidence

from

MTQ Filed before entering plea Does not go into the merits of the case Grounds are stated in Rule 117 Does not require a prior leave of court Granting does not necessarily follow a dismissal (Court may

demurrer

General Rule: Court may order that another complaint or information be filed [Rule 117, Sec. 5].



been

General Rule: If in custody, the accused shall not be discharged unless admitted to bail [Rule 117, Sec. 5]. The order must state either release of the accused or cancellation of his bond. Exception: When there is no order sustaining the motion is made OR if there is one, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause. Exception to the exception: If he is in custody for another charge.

to

DEMURRER TO EVIDENCE Filed after the prosecution has rested its case Based upon the inadequacy of the evidence adduced by the prosecution Ground is ―insufficiency of evidence‖ May be filed either with leave or without leave of court Granting is deemed an acquittal and would preclude the filing of



Better approach if the ground was that the court has no jurisdiction over the subject matter: The court should not quash the complaint or information. Instead, it should remand or forward the case to the proper court.

Remedies of the prosecution General Rule: To amend the information to correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information [Rule 117, Sec. 4] Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense. 

Prosecution may appeal from the order of quashal to the appellate court.



If the information was quashed because it did not allege the elements of the offense, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ [People vs Purisima (1978)].

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44

Order denying MTQ Interlocutory Not appealable absent a showing of GAD Does not dispose of the case upon its merits Proper remedy: appeal after the trial

Order granting MTQ Final order Immediately appealable but subject to rules on double jeopardy Disposes of the case upon its merits Proper remedy: appeal the order 

4. Exception to the rule that sustaining the motion is not a bar to another prosecution (Bar 1994)

Note: Where there are two different laws or articles of the same code that define two crimes, prior jeopardy as to one is NOT an obstacle to a prosecution of the other when each crime involves some important act which is not an essential element of the other [Loney vs People (2006); People vs Doriquez (1968)].

General Rule: A MTQ will not be a bar to another prosecution for the same offense [Rule 117, Sec. 6] Exception: If the ground for the quashal is either: 1. The criminal action or liability has been extinguished. 2. The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged.

5. Double Jeopardy Rule of Double Jeopardy 1. When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense [Rule 117, Sec. 3(i)]. 2. Hence, as a rule, an acquittal rendered by a court of competent jurisdiction after trial on the merits is immediately final and cannot be appealed on the ground of double jeopardy [People v. Sandiganbayan (2010)].

Kinds of Double Jeopardy [Art III, Sec. 21, Consti] 1.

No person shall be put twice in jeopardy for the SAME OFFENSE.

2.

When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution to another prosecution for the SAME ACT.

Same Offense  The offenses are penalized either by different sections of the same law or by different statutes.  Must examine the essential elements of each: - Test: WON evidence that proves one offense would likewise prove the other [People vs Ramos (1961)].  It is not necessary to have absolute identity [People vs Relova (1987)]. Same Act  An offense penalized by ordinance is, by definition, different from an offense penalized

under a statute. Hence, they would never constitute double jeopardy. However, the second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People vs Relova (1987)]. Liability is produced both under an ordinance and a national statute.

Requisites for 1st Jeopardy to Attach 1. A valid complaint or information which is sufficient in form and substance to sustain a conviction 2. The court had jurisdiction 3. A valid arraignment 4. A valid plea 5. Conviction, acquittal of the accused OR the case was dismissed without his express consent Note:  Exception: A dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan (1986)]. 

―Without express consent‖: It refers only to dismissal or termination of the case. It does NOT refer to the conviction or acquittal [People v. Labatete (1960)].



If consent is not express, dismissal will be regarded as final – i.e. with prejudice to refiling [Caes v. IAC (1989)]. Exception: Dismissal has the effect of acquittal even with the consent of the accused when predicated on (1) insufficiency of the prosecution‘s evidence or (2) denial of the right to a speedy trial [Alamario v. CA (2001)].



Dismissal = Acquittal a) Demurrer to evidence b) Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent)



Dismissal vs. Acquittal

Dismissal Does not decide the case on the merits. Does not determine innocence or guilt Double jeopardy will not always attach

Acquittal Always based on the merits. Defendant‘s guilt was not proven beyond reasonable doubt. Double jeopardy always attaches

REMEDIAL LAW REVIEWER Requisites to Raise Double Jeopardy 1. First jeopardy must have attached. 2. First jeopardy must have been validly terminated. 3. Second jeopardy must be: a. for the same offense; or b. the second offense necessarily includes or is necessarily included in the offense charged in the first information; or c. is an attempt or frustration thereof. Note:  The discharge of a defendant on a preliminary investigation is NOT such an adjudication in his favor as will bar a subsequent prosecution for the offense. A preliminary investigation is not a trial and does not have for its object the definite determination of the guilt of the accused. Furthermore, the accused has not yet been arraigned.  Tests for determining whether the two offenses are identical: There is IDENTITY between the two offense not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information Exception to the Identity Rule: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party EXCEPT when offended party failed to appear during such arraignment. When there is NO double jeopardy 1. Private offended party appeals the civil aspect of the case [Manantan vs CA (2001)]. 2. Conviction of a crime under a special law (malum prohibitum) which also constitutes an offense under the RPC is not a bar to the prosecution under the RPC (malum in se) [People vs Sanchez (1998)]. 3. Two informations are filed charging the accused with two different offenses having different elements though arising from the same act (eg. estafa and BP 22) [Ching vs CA (1990)]. 4. Prosecutor may revive and reinstate a case without filing a new information when the information is provisionally dismissed with the conformity of the accused after arraignment and the initial presentation of prosecution evidence has started since the order of provisional dismissal has not yet become final [Lauchengco vs CA (1979)]. 5. Dismissal of the case was declared null and void [People vs Mogol (1984)].  Where an order dismissing a case is not on the merits, it cannot bar as res judicata a subsequent case based on the same offense. The dismissal being null and void, the

6.

7.

8.

9.

proceeding before the TC may not be said to have been lawfully terminated [People vs Gorospe (1984)]. Petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed by the TC – it is favorable to the accused [People vs Lee Jr (1984)]. Filing of the 2nd information where a new fact supervened (eg. the injured party dies from the injuries after conviction). [1997, 2005 Bar]  Where there is no supervening event after arraignment and conviction: - If the 1st charge was based on findings of a physician, and a 2nd information was filed charging a more serious crime based on the findings of another physician [People v. Buling (1960)]. - If the victim died 2 days prior to arraignment of the accused who pleaded guilty to an information for serious physical injuries thru reckless imprudence, he can no longer be charged with homicide thru reckless imprudence [People v. City Court of Manila (1983)]. In a continuing offense, only one crime is committed. Where 2 informations arose from the same transaction, the 2nd case CANNOT prosper [Mallari vs People (1988)]. General Rule: Prosecution cannot file an appeal or a motion for reconsideration after jeopardy has attached to increase the imposed penalty [US vs Kepner (1904)].  Exception: If the purpose is to decrease the penalty wrongfully imposed, it is beneficial to the accused and there is no reason to complain.

6. Provisional Dismissal (Bar 2003) Definition: A case is dismissed without prejudice to its being refiled or revived. General Rule: Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal. Exception: If dismissal was due to a demurrer to evidence. a. 

  

When dismissal becomes permanent: Time bar rule 1 year after issuance of the order without the case having been revived for offenses punishable: [Rule 117, Sec. 8] 1. By imprisonment not exceeding 6 yrs 2. By fine of any amount 3. By both 2 yrs after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 yrs. The State may revive beyond the periods provided there is a justifiable necessity for the delay. The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to

45

REMEDIAL LAW REVIEWER the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People vs Lacson (2003)].

46

Note:  How to revive a case: 1. Refiling of the information 2. Filing of a new information for the same offense or one necessarily included in the original offense charged. b. Requisite procedure [Rule 117, Sec. 8]  Motion can be made: 1. By the prosecution, with the express conformity of the accused 2. By the accused 3. By both  Requisites for Provisional Dismissal: 1. Consent of the prosecutor 2. Consent of the accused 3. Notice to the offended party

X. PRE-TRIAL 1. Matters to be considered during pre-trial 2. What the court should do when prosecution and offended party agree to the plea offered by the accused 3. Pre-trial agreement 4. Non-appearance during pre-trial 5. Pre-trial order 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution

1. Matters to be considered during pre-trial Section 1. Pre-trial; mandatory in criminal cases Pre-trial is MANDATORY in all criminal cases. Its main objective is to achieve an expeditious resolution of the case.

Coverage [Rule 118, Sec. 1] The court shall order pre-trial in ALL criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC

Period [Rule 118, Sec. 1] General Rule: After arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused. Exception: If a shorter period is provided by special or SC circulars.

Things considered during pre-trial / Purposes [Rule 118, Sec. 1] a) b) c) d)

Plea bargaining Stipulation of facts Marking for identification of evidence Waiver of objections to admissibility of evidence

e) f)

Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case

Role of the Judge During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between the parties. [SC AM 03-1-09-SC] Note:  Stipulation of facts - This is no longer prohibited in criminal cases [People vs Hernandez (1996)]. - However, in a case of rape with the allegation that victim is below 12 yrs of age which qualifies said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. Said facts and circumstances cannot be subject of stipulation [People vs Sitao (2002)]. 

Marking for identification of the evidence of parties Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence.

2. What the court should do when prosecution and offended party agree to the plea offered by the accused Plea bargaining Definition: It is the process in criminal process whereby the 1) accused, 2) offended party, and the 3) prosecution work out a mutually satisfactory disposition of the case subject to court approval [See also DOJ Circular No. 35 (June 31, 1990), as amended by Circular No. 55 for the guidelines on plea bargaining as well as note on Rule 116]. It usually involves the defendant‘s pleading guilty to a lesser offense or to one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge [People vs Villarama (1989)]. The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information, except when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor [People vs De Luna (1989)]. When not allowed: Section 23 of RA9165 (Comprehensive Dangerous Drugs Act of 2002) says that ―any person charged under any provision of this Act regardless of imposable penalty shall not be allowed to avail of the provision on pleabargaining.‖

REMEDIAL LAW REVIEWER Effect when the prosecution and the offended party agree to the plea offered by the accused: Court shall: a) Issue an order which contains the plea bargaining arrived at; b) Proceed to receive evidence on the civil aspect of the case; and c) Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence [SC AM 03-1-09-SC] When plea bargaining fails: Court shall  Adopt the minutes of preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence;  Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in determining farther admissions of facts, documents and in particular as to the following: - the identity of the accused; - court's territorial jurisdiction relative to the offense/s charged; - qualification of expert witness/es; - amount of damages; - genuineness and due execution of documents; - the cause of death or injury, in proper cases; - adoption of any evidence presented during the preliminary investigation; - disclosure of defenses of alibi, insanity, selfdefense, exercise of public authority and justifying or exempting circumstances; and - such other matters that would limit the facts in issue.  Define factual and legal issues;  Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates;  Require the parties to submit to the Branch COC the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and  Consider modification of order of trial if the accused admits the charge but interposes a lawful defense. [SC AM 03-109-SC]

Exception: Agreements not covering matters referred to in Rule 118, Sec. 1 [SC A.M. No. 03-1-09SC] Required form of pre-trial agreement 1. Must be in writing 2. Signed by the accused 3. Signed by his counsel Otherwise, it cannot be used against the accused (i.e. inadmissible in evidence). The constitutional right to present evidence is waived expressly. Purpose for signature requirement: [People vs Uy (2000)] 1. To safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge. 2. To eliminate any doubt on the conformity of the accused to the facts agreed upon.

Effect 



4. Non-appearance during pre-trial [Rule 118, Sec. 3] If counsel for the accused or the prosecutor 1) does not appear at the pre-trial conference and 2) does not offer an acceptable excuse, the court may impose proper sanctions or penalties (reprimand, fine or imprisonment). Rationale: to enforce the mandatory requirement of pre-trial in criminal cases [Rule 118, Sec. 1]. Note: The accused is not included because his constitutional right to remain silent may be violated. The accused is not required to attend (unless ordered by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference, if he agrees to the contents of such.

5. Pre-trial order [Rule 118, Sec. 4] Issuance   

3. Pre-trial agreement Form General Rule: Court approval is required.

The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated (2008 Bar) Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; he must assume the consequences of the disadvantage [Bayas vs Sandiganbayan (2002)].

Issued by the court Within 10 days after the pre-trial. [SC AM 03-109-SC] Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People vs Santiago (1989)].

Contents a) b)

Actions taken; Facts stipulated;

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c) d) e) f)

Evidence marked; Admissions made; The number of witnesses to be presented; and The schedule of trial.

(Note: Letters d) to f) are added by SC AM 03-1-09SC to the requirements under Rule 118, Sec. 4)

Effect a)

b) c)

Binds the Parties  The accused must move to correct any mistake or modify the pre-trial order. Otherwise, it will be deemed to have waived and be barred from questioning  If the matters taken up and embodied in the pre-trial order were not in accordance with what was really stipulated upon, objections should be interposed as soon as the pre-trial order is issued. [People v. Abelita (1992)]  The procedure is substantially the same in civil cases, except that any modification of the pre-trial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases (1997 Bar). Limits the trial to those matters not disposed of Control the course of the action during trial  Exception: If modified by the court to prevent manifest injustice.

6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution A.M. No. 03-1-09-SC RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE- TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES RESOLUTION CRIMINAL CASES After the arraignment, the court shall forthwith set the pre-trial conference within thirty days from the date of arraignment, and issue an order: (a) Requiring the private offended party to appear thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence; (b) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and (c) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available.

XI. TRIAL 1. Instances when presence of accused is required by law 2. Requisite before trial can be suspended on account of absence of witness 3. Trial in Absentia 4. Remedy when accused is not brought to trial within the prescribed period 5. Requisites for discharge of accused to become a state witness 6. Effects of Discharge of accused as state witness 7. Demurrer to Evidence

1. Instances when presence accused is required by law

of

Presence is mandatory:  For purposes of identification;  At arraignment; [Rule 116, Sec. 1(b)]  At the promulgation of judgment; Exception: If the conviction is for a light offense. [Rule 120, Sec. 6]  [Rule 119, Sec. 15] When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

2. Requisites before trial can be suspended on account of absence of witness Absence or unavailability of an essential witness  ―Absent‖ means that his whereabouts are unknown or cannot be determined by due diligence.  ―Unavailable‖ means that his whereabouts are known but presence for trial cannot be obtained by due diligence. The period of delay resulting from the absence or unavailability of an essential witness shall be

REMEDIAL LAW REVIEWER excluded in computing the time within which trial must commence. [Rule 119, Sec. 3]

3. Trial in Absentia (1998 Bar) Requisites: 1. Accused has been arraigned; 2. He was duly notified of trial; 3. His failure to appear is unjustified. Purpose: To speed up disposition of cases. General rule: The right to be present at one‘s trial may be waived. Exceptions: At certain stages: [Lavides v. CA (2000)]  Arraignment and plea  Promulgation of sentence, unless for light offense  During trial whenever necessary for ID purposes Exception to the exception: If the accused unqualifiedly admits in open court after arraignment that he is the person named as the defendant in the case on trial.

4. Remedy when accused is not brought to trial within the prescribed period Effect of delay [Rule 119, Sec. 9]  On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial (2007 Bar).  Must be raised prior to trial; otherwise, the right to dismiss is considered waived under Rule 119, section 9.  Burden of Proof - The accused has the burden of proving the ground of denial of right to speedy trial for the motion. - The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Rule 119, Sec. 3.  Subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore. DISMISSAL WITHOUT PREJUDICE

Allows new suit for the same cause of action Imports contemplation of further proceedings, and when they appear in an order or decree, it shows that the judicial act is not intended to be res judicata of the merits

DISMISSAL WITH PREJUDICE Adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause

Is res judicata as to every matter litigated

DISMISSAL WITHOUT PREJUDICE Terminates the case but reserving, however, to the plaintiff the right to file a new complaint which is entirely new and different from that which was dismissed

DISMISSAL WITH PREJUDICE

5. Requisites for discharge of accused to become a state witness Discharge of a co-accused General rule: It is the duty of the prosecutor to include all the accused in the complaint/information. Exception: Prosecutor may ask the court to discharge one of them after complying with the conditions prescribed by law. [Rule 119, Sec. 17]  This applies only when the information has already been filed in court. Requisites [Rule 119, Sec. 17] (1) Two or more persons are jointly charged with the commission of any offense. (2) Upon motion of the prosecution before resting its case  Petition for discharge is filed before the defense has offered its evidence. [People v. Aniňon (1988)] (3) Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. (4) The court is satisfied of the ff: (a) Absolute necessity for the testimony of the accused whose discharge is requested;  He alone has the knowledge of the crime, and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan (1983)]  E.g. When there is a conspiracy and the crime is committed clandestinely, the discharge of a conspirator is necessary to testify against the other conspirator. [Chua v. CA (1996)] (b) There is no other direct evidence available for the proper prosecution of the offense, except the testimony of the said accused; (c) The testimony can be substantially corroborated in its material points; (d) The accused does not appear to be the most guilty;  Gravity or nature of acts he committed are compared to those of his coaccused.  Not merely the fact that in law the same penalty is imposable on all. (e) The accused has not, at any time, been convicted of any offense involving moral turpitude

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Note: The rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been perpetrated in conspiracy with the other accused. [People v. Ocimar (1992)]

6. Effects of Discharge of accused as state witness Effect of discharge General rule: The order of discharge shall: [Rule 119, Sec. 18]  Amount to an acquittal of the discharged accused;  Bar future prosecutions for the same offense. Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.  Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)]  Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)]

7. Demurrer to Evidence (1998, 2001, 2004 Bar) Definition: Objection by one of the parties to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. [Gutib v. CA (1999)] Purpose: In light of the constitutional right to be presumed innocent and of the privilege against selfincrimination [Goldstein, 1960] for the accused to test the sufficiency of prosecution‘s evidence before presenting his defense.  There is no material difference between the Motion to Acquit of the accused before the TC and the demurrer to evidence. The only difference: If the MTD is ordered, it is tantamount to an acquittal, but the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment.  Purpose: to prevent the filing of demurrer based on frivolous and flimsy grounds.

How initiated [Rule 119, Sec. 23]  By the court motu proprio, after giving the prosecution the opportunity to be heard;  Upon demurrer to evidence filed by the accused: -With leave of court; -Without leave of court.

Motion for leave to file demurrer [Rule 119, Sec. 23]  It must specifically state its grounds.  It must be filed within a non-extendible period of 5 days after the prosecution rests. Prosecution

may then oppose within a non-extendible period of 5 days from receipt.  If leave of court is granted, the demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period.

Effect of granting motion for leave to file demurrer  The court may dismiss the action on the ground of insufficiency of evidence. [Rule 119, Sec. 23]  Sufficient evidence for frustrating a demurrer is evidence that proves: [Gutib v. CA (1999)] - Commission; and - Precise degree of participation. o E.g. Proof of the possession of recently stolen goods taken together with proof of the commission of the theft, may be and generally will be sufficient to establish the guilt of the accused, if there is nothing in the record to raise a doubt as to the guilty character of the possession, though there is no presumption to that effect. [U.S. v. Catimbang (1916)]

Effect of denial of motion for leave to file demurrer  Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment. [Rule 119, Sec. 23]  It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People (1999)]

Right of the accused to present evidence after demurrer is denied [Rule 119, Sec. 23] FILED WITH LEAVE OF COURT May adduce evidence in his defense Purpose: To determine WON demurrer was filed merely to stall the proceedings Implied leave of court is no longer sufficient and prevents accused from presenting evidence [e.g. accused files motion with reservation to present evidence in case motion is denied]

FILED WITHOUT LEAVE OF COURT Waives the right to present evidence Submits the case for judgment on the basis of the evidence for the prosecution If there are 2 or more accused and only one presents a demurrer without leave of court, General rule: The court may defer resolution until decision is rendered on the other accused Exception: If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution‘s evidence but also on the evidence adduced by his coaccused

REMEDIAL LAW REVIEWER -

XII.

JUDGMENT

1. Requisites of a judgment 2. Contents of Judgment 3. Promulgation of judgment; instances of promulgation of judgment in absentia 4. When does judgment become final (four instances)

1. Requisites of a judgment Form [Rule 120, Sec. 1] 







Written in official language. - If given verbally, it is incomplete. It does not have an effect before it was actually reduced to writing and signed by the judge. [People v. Catolico (1972)] - A verbal order dismissing the case can be rescinded without prejudicing the rights of the accused – No double jeopardy arises. [Abaya v. Garcia (1988)] - The remedy for a verbal judgment is to appeal or file a petition for mandamus to compel the court to put the decision in writing. Personally and directly prepared by the judge. - Every decision must state distinctly and clearly the factual and legal basis therefore. [Art. 8, Sec. 6, Consti] - Judges must nonetheless be allowed to synthesize and simplify their decisions considering the heavy load of trial judges for as long as there is compliance with minimum essence of factual and legal bases. o He may quote from narration of facts by the OSG in his brief or memoranda of both parties and adopt the same as his own. [Hernandez v. CA (1993)] o Common sense dictates that he be given complete liberty to express his opinion, unrestrained by any fear that a higher court might call down. [People v. Meneses (1998)] Signed by the judge. - The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. - But the judge who only took over can render a valid decision by relying on the transcript. It does not violate due process. [People v. Badon (1999)] Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based. - There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed. - Failure on the part of the TC to make a finding of fact is a revocable error.

There is no law that requires a specific finding of facts with respect to the evidence for the defense. [Reyes v. People (2006)]

Judge who penned the decision need not be the one who heard the case The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular. The Court generally will not find any misapprehension of facts as it can be fairly assumed under the principle of regularity of performance of duties of public officers that the transcript of stenographic notes were thoroughly scrutinized and evaluated by the judge himself. [Concepcion v. Court of Appeals (2000)]

2. Contents of Judgment 1) Conviction The judgment of conviction shall state: (1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission.  If a decision does not contain a dispositive portion but the last two paragraphs embody the court‘s conclusions, then the decision is valid. [People v. Valeriano (1993)]  The TC should express not only its conclusion but also the provision of the law violated for the purpose of informing the accused of the nature of the crime and the law penalizing the same.  There is no need to state the particular paragraph and article in the RPC, so long as the offense is clearly understood from the facts.  Mere failure to specify the particular provision of law does not invalidate the decision, if it did actually apply the proper provision. (2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact. (3) The penalty imposed upon the accused.  The penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it. (4) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived.

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PROOF BEYOND REASONABLE DOUBT – Degree of proof which produces conviction in an unprejudiced mind. [People v. Bacalzo (1991)] Judgment for two or more offenses  General rule: Complaint/information charge only one offense.

must

Exception: Cases in which existing laws prescribe a single punishment for various offenses. 

General rule: Duplicitous information is subject to a motion to quash. Exception: Defect is waived when accused fails to move for quashal. - THUS, where the accused fails to object to 2 or more offenses charged in a single information/complaint before trial [Rule 120, Sec. 3], the court may: o Convict him of as many offenses as are charged and proved; and Exception: One of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act. o Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. Exception: Maximum duration of offense: Follow the three-fold rule on the service of penalty.

Judgment in case of variance between allegation and proof  General rule: The defendant can be convicted only of the crime with which he is charged. 

Rationale: He has the right to be informed of the nature of the offense with which he is charged before he is put on trial. [People v. Guevarra] However, minor variance between the information and the evidence: - Does not alter the nature of the offense; - Does not determine or qualify the crime or penalty; - Cannot be ground for acquittal.





Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved. [Rule 120, Sec. 4] - The accused can be convicted of an offense only when it is both charged and proven. - The mere fact that the evidence presented would indicate that a lesser offense outside the court‘s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information. Exception to the exception: Where there are facts that supervened after the filing of the

information which change the nature of the offense. When an offense includes or is included in another [Rule 120, Sec. 5] The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. Effect  The accused shall be convicted of: [Rule 120, Sec. 4] 1) The offense proved which is included in the offense charged; or 2) The offense charged which is included in the offense proved  The right to be informed of the charges has not been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein. [People v. Villamar (1998)]  Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven. State liability for unjust conviction  The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes. [RA 7309]  Requirements for compensation: 1) Unjust accusation; 2) Unjust conviction; and - It is the same as knowingly rendering an unjust judgment - It is contrary to law or is not supported by the evidence and the same is made with conscious and deliberate intent to do an injustice. [Art. 204, RPC] 3) Unjust imprisonment.

2) Acquittal Definition: A finding of not guilty based on the merits, either:  The evidence does not show that his guilt is beyond reasonable doubt; or  A dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence fails to show beyond doubt that accused is guilty. REASONABLE DOUBT – Doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt. Rationale: It is always better to err in acquitting than in punishing. [People v. Lizada (1993)]

REMEDIAL LAW REVIEWER ACQUITTAL [Rule 120]

DISMISSAL [Rule 117]

Terminates the case Decision on the merits Not on the merits and no based on a finding that finding of guilt is made the accused is not guilty 

The judgment shall state whether: 1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or 2) It merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. - #2 does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence.

General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. Exception: The court is not permitted to censure the accused in a judgment for acquittal – no matter how light, a censure is still a punishment. - No court has the power to mete out punishment. A finding of guilt must precede the punishment. - This reprehension, however, must be relevant to the issue in the case. If irrelevant/impertinent, they should be stricken out or expunged from the record like any other extraneous matters. [People v. Meneses (1998)]  



Acquittal based on reasonable ground does not bar a separate civil action based on quasi-delict. [Lontoc v. MD Transit (1988)] The Court may hold accused civilly liable even when it acquits him. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. - The court may nonetheless hold the accused civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter. - The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People The Judge acquitting an accused cannot punish him at the same time

3. Promulgation of judgment; instances of promulgation of judgment in absentia (1997 Bar)

Promulgation: An official proclamation announcement of a judgment or order.

or

Two things are essential and necessary for the valid promulgation of a court decision: 1. There must be a judge or judges legally appointed or elected and actually acting either de jure or de facto, and 2. The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it. [Miguel v Municipal Trial Court (1986)] Judgment/sentence does not become a judgment/sentence in law until it is: 1) Read and announced to the defendant; or 2) Has become a part of the record of the court. [US v. CFI of Manila, 24 Phil 321] Where there is no promulgation of judgment, no right to appeal accrues. Notice for Promulgation  Clerk of Court gives notice to accused personally or through bondsman or warden and counsel.  If the accused jumps bail or escapes from prison and was tried in absentia, notice will be served in last known address. [Rule 120, Sec. 6] Sin perjuicio judgment: A judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. [Dizon v. Lopez (1997)]  Merely reading the dispositive portion of the decision is not sufficient.  Judgment must state the facts and the law on which it is based.  While SC has expressed approval of the practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage, such refers to the preparation of the decision and not to promulgation.  There is no more reason to keep it a secret at the stage of promulgation. a. Promulgation where judge is absent [Rule 120, Sec. 6] The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city. b. Presence of accused required; exception [Rule 120, Sec. 6] General rule: Presence of the accused is mandatory. Exception: convictions for light offenses Conviction for light offense Promulgation in absentia

He may appear through counsel/representative To prevent subversion of judicial process and enable enforcement of civil liability

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Verdict acquittal









of

No appeal is necessary; judgment is final and executory - Note the old rule that presence of the accused during promulgation of judgment is required only in case of conviction

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the ROC against the judgment and the court shall order his arrest. - However, within 15 days from promulgation of judgment, he may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence. - If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice. Promulgation when accused is confined/detained in another city - It will be done in the RTC who has jurisdiction over the place of confinement. Failure to appear at the scheduled date of promulgation - Promulgation is made by recording the judgment in the criminal docket and serving a copy at the accused‘s last known address or through counsel. Promulgation date where judge no longer a judge is void. - If at the time of the promulgation, the judge penning the decision has ceased being a judge of the court, the decision would not be an act of the court. [People v. Dimalanta] - Promulgation by a succeeding judge produces no legal effect since it cannot restore validity to a document already void.



When judgment of acquittal becomes final  It is immediately final and executory.  The State may not seek its review without placing the accused in double jeopardy.

XIII. NEW TRIAL OR RECONSIDERATION 1. Grounds for New Trial 2. Grounds for Reconsideration 3. Requisites before a new trial may be granted on ground of newly discovered evidence 4. Effects of granting a new trial or reconsideration 5. Application of Neypes Doctrine in Criminal Cases

1. Grounds for New Trial [Rule 121, Sec. 2] 

Exception: cases where death penalty was imposed—automatic review; judgment does not become final after the promulgation and by the TC‘s issuance of a commitment order. 

Before the judgment becomes final, the TC has plenary power to make, either on motion or motu proprio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice.

That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; General rule: Error of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity. Exception: Acquittal would in all probability have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel. - Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused.

4. When does judgment become final (four instances) [Rule 120, Sec. 7] Judgment becomes final: 1) After the lapse of the period for perfecting an appeal; 2) When the sentence has been partially/totally satisfied or served; 3) The accused has expressly waived in writing his right to appeal, or 4) When the accused applies for probation, and thereby waives right to appeal. [Regalado]

After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors.



That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.

2. Grounds for Reconsideration 

Errors of law or fact in the judgment, which requires no further proceedings. [Rule 121, Sec. 3] Rationale: To afford the TC the opportunity to correct its own mistakes and to avoid unnecessary appeals.

3. Requisites before a new trial may be granted on ground of newly discovered evidence

REMEDIAL LAW REVIEWER Requisites: That the evidence - [Jose v. CA (1997)] a) Was discovered after the trial; b) Could not have been discovered and produced at the trial even with the exercise of reasonable diligence. [US v. Pico (1982)]  Burden of proving this is on the accused. [US v. Torrente (1922)] c) Is material, not merely cumulative/corroborative/impeaching; and d) Is of such weight that it would probably change the judgment if admitted.  It must be of weighty influence and will affect the result of the trial. [People v. Alfaro (2003)] Exceptions:  ―Interest of justice‖ as gauge for introduction of new evidence - In People v. Almendras (2003), the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of justice. In that case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel‘s gross mistake and negligence.  When there is variance in 2 reports - In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police report, not new, and which could have been discovered with due diligence, because the evidence contained in such was at such variance with the health officer‘s report at trial, that its contents raised doubts to the guilt of the accused.

GROUND Newlydiscovered evidence

EFFECT Evidence already adduced shall stand and the newlydiscovered and such other evidence shall be taken and considered together with the evidence already in the record

Remedy against GAD in granting MNT/MFR: Certiorari or prohibition. Otherwise, the prosecution may no longer have opportunity to question the order if accused is acquitted after a new trial is conducted (because there will be double jeopardy). [Luciano v. Estrella (1970)]

5. Application of Neypes Doctrine in Criminal Cases Fresh Period to Appeal after Denial of MNT/MR. Henceforth, this ―fresh period rule‖ shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasijudicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. (Neypes v. CA, 2005)

4. Effects of granting a new trial or reconsideration [Rule 121, Sec. 6]

XIV. APPEAL

In all cases:  The original judgment set aside or vacated;  A new judgment is rendered accordingly.  Specific effects when granted upon different grounds:

1. 2. 3. 4. 5.

GROUND Errors of law or irregularities committed during the trial

EFFECT All proceedings and evidence affected shall be set aside and taken anew If error or irregularity goes into the jurisdiction, the entire proceeding is void and must be set aside

COURT MAY Allow introduction of additional evidence in the interest of justice

COURT MAY Allow introduction of other such evidence in the interest of justice

Effect of an Appeal Where to appeal How appeal taken Effect of appeal by any of several accused Grounds for dismissal of appeal

1. Effect of an Appeal An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment, WON it is made the subject of assignment of errors. [People v. Calayca (1999)]

2. Where to appeal [Rule 122, Sec. 2] APPEAL IN The RTC The Sandiganbayan The CA

FOR CASES DECIDED BY MTC/MeTC/MCTC RTC or MTC/MeTC/MCTC (if it is government duty-related - i.e. filed under EO 1, 2, 4 and 14-A) RTC (if it involves questions of fact and of law)

55

REMEDIAL LAW REVIEWER APPEAL IN The SC

56

The SC

FOR CASES DECIDED BY RTC a) If it involves questions of law only b) If it involves constitutionality or validity of any treaty/law/ordinance/EO/ regulation or the jurisdiction of the inferior court c) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment d) Other offenses, which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense CA or Sandiganbayan

3. How appeal taken

2) Criminal cases governed by the Revised Rules on Summary Procedure.







[Rule 122, Sec. 6 and 9] When appeal to be taken Within 15 days from promulgation of the judgment or from notice of the final order appealed from. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel.  Transmission of record to RTC Within 5 days from perfection of the appeal, the COC shall transmit the original record to the appropriate RTC.  Notification of parties Upon receipt of the complete record, TSN and evidence of the case, the RTC COC shall notify the parties of such fact.  Submission of memoranda/briefs Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so.  Decision After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed. [Rule 123, Sec. 1] General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. Exceptions: 1) Where a particular provision applies only to either of said courts;





Offenses falling under the MTC/MCTC‘s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] - Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor‘s Office. Offenses falling under the MeTC‘s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] - In Metro Manila and other chartered cities, criminal cases shall be commenced only by information; thus, the complaint may be filed only with the Office of the City Prosecutor - If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information. Cases governed by the Revised Rules on Summary Procedure: a) Violations of traffic laws/ rules/ regulations; b) Violations of the rental law; c) Violations of municipal/city ordinances; d) Violations of BP 22; e) All other criminal cases where the penalty is imprisonment not exceeding 6 months or a fine not exceeding P1,000 or both, irrespective of other imposable penalties (accessory or otherwise) or of the civil liability arising from it. However, in offenses involving damage to property through criminal negligence where imposable fine does not exceed P 10,000, the Uniform Procedure Rule shall govern (i.e. it is not governed by Revised Rules on Summary Procedure). Revised Rules on Summary Procedure also does not apply to criminal cases where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

The Revised Procedure

Rules

on

Summary

I.

Commencement of action [Sec. 11]



The filing of the criminal case shall be either by complaint or by information. - However, in Metropolitan Manila and in chartered cities, commencement shall be only be by information. Exception: When the offense cannot be prosecuted de oficio. The complaint/information shall be accompanied by the affidavits of the complaint and of his witnesses. - No. of copies = [No. of accused + 2 copies for the court‘s files] - If the required no. of copies is not complied with within 5 days from date of filing, the case may be dismissed.



REMEDIAL LAW REVIEWER (2) Plea bargaining; - No admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. (3) Other matters to clarify the issues and to ensure a speedy disposition of the case.

II. Referral to Lupon [Sec. 18] 



If the case requires referral to the Lupong Tagapamayapa under PD 1508 and this is not complied with, it shall be dismissed without prejudice. The case may be revived only after compliance with the requirement. Exception: Criminal cases of warrantless arrest.

III. Court’s duty [Sec. 12] 



If commenced by complaint: - Based on the complaint/ affidavits/ evidence, the court may dismiss the case outright for being patently without basis/merit and order the release of the accused (if in custody). If commenced by information or if not dismissed according to #1: - The court shall order the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence on his behalf (with copies served on the complainant/prosecutor) not later than 10 days from receipt of order. - The prosecution may file reply affidavits within 10 days after receipt of the counteraffidavits.

VII. Trial [Sec. 15] 









IV. Prohibited pleadings and motions [Sec. 19] (1) MTD;  Exception: On grounds of either: a) LOJ over subject matter; b) Failure to refer to Lupon. (2) Motion for bill of particulars; (3) MNT/MR or motion for re-opening of trial; (4) Petition for relief from judgment; (5) Motion for extension to file; (6) Memoranda; (7) Petition for certiorari/mandamus/prohibition against any interlocutory order; (8) Motion to declare defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11) 3rd-party complaints; (12) Interventions.



The submitted affidavits shall constitute the direct testimonies of the witnesses/affiants. They shall be subject to cross, re-direct and recross examinations. If the affiant fails to testify, his affidavit will not be considered as competent evidence for the party presenting his affidavit. However, the adverse party may utilize his affidavit for any admissible purpose. A witness cannot testify unless his affidavit was previously submitted to the court according to Sec. 12. - Exception: On rebuttal or sur-rebuttal. If a party wishes to present additional affidavits/counter-affidavits, he should so manifest (and his purpose) during the preliminary conference. If the court allows the additional affidavits/counter-affidavits, they shall be submitted to the court and served on the adverse party within 3 days from the termination of the preliminary conference. If it is the prosecution who submits additional affidavits, the defense may file counteraffidavits thereto (copy furnished the prosecution) within 3 days from service.

VIII.Arrest of the accused [Sec. 16] 



The court shall not order the arrest of the accused. - Exception: For failure to appear whenever required. Release of the accused shall be by bail or on recognizance.

IX. Judgment [Sec. 17] If trial was conducted, the court shall promulgate judgment within 30 days after termination of trial.

V. Arraignment [Sec. 13] 



If the court finds no cause/ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. If the accused is in custody for the crime charged, he shall be immediately arraigned. If he enters a plea of guilty, he shall forthwith be sentenced.

X. Appeal [Sec. 21] Judgment may be appealed to RTC per Sec. 22, BP 129.

Procedure in the CA a.

Parties and title [Rule 124, Sec. 1]



In all criminal cases appealed to the CA: - APPELLANT – The party appealing; - APPELLEE – The party adverse to the appellant. The title of the case shall remain as it was in the court of origin (i.e. People v. John Doe).

VI. Preliminary conference [Sec. 14] 

Before conducting the trial, the court shall call the parties to a preliminary conference for: (1) Stipulation of facts; - Refusal/failure to stipulate shall not prejudice the accused.



57

REMEDIAL LAW REVIEWER b.

58

Appointment of counsel de oficio [Rule 124, Sec. 2]

a)

The counsel de oficio cannot dismiss the appeal and [US v. Lafuente (1918)] neither can he admit findings of fact by the TC without the consent of his client [People v. Isaac (1952)].

b)

c.

Brief for appellant [Rule 124, Sec. 3]



Appellant shall file 7 copies of his brief with the clerk of court, accompanied by proof of service of 2 copies on the appellee. It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court‘s notice that the evidence is already attached to the record. Purpose: To show grounds for reversal of judgment and to point out the errors/irregularities in the lower court‘s proceedings.

c)





d.

Brief for appellee [Rule 124, Sec. 4]



Appellee shall file 7 copies of his brief with the clerk of court, accompanied by proof of service of 2 copies on the appellant. It shall be filed within 30 days from receipt of the appellant‘s brief. Purpose: To meet/refute the appellant‘s submissions.

d)

e)

  e.

Reply to appelle’s brief [Rule 124, Sec. 4]



Appellant may (i.e. optional) file a reply brief covering matters raised in the appellee‘s brief but not in the brief of the appellant. It must be filed within 20 days from receipt of the appellee‘s brief.

 f.

Extension of time for filing briefs [Rule 124, Sec. 5]



General rule: Extension of time for the filing of briefs is not allowed - Exception: for good and sufficient cause It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended. Grant of extension rests on the court‘s discretion. [Piedad v. Batuyong (1974)] Court may grant as many extensions as may be asked. [Gregorio v. CA (1976) ]

   g.

Form of briefs [Rule 124, Sec. 6]



Briefs shall be printed/encoded/ typewritten, in double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width. Mimeographed copies are not allowed.



h. Contents of brief The briefs in criminal cases shall have the same contents as provided in Rule 44, Sec. 13-14. [Rule 124, Sec. 7] 1. Appellant’s brief:

f)

g)

h)

[Rule 44, Sec. 13] SUBJECT INDEX – Digest of the arguments and page references, and a table of: (1) cases alphabetically arranged; and (2) books and statutes cited, with references to the pages where they are cited. ASSIGNMENT OF ERRORS – Errors urged separately, distinctly and concisely; stated without repetition and numbered consecutively. STATEMENT OF THE CASE – Clear and concise statement of the nature of the action, a summary of the proceedings, the appealed court rulings and orders, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record. STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy, together with the substance of the related proof, in sufficient detail to make it clearly intelligible and with page references to the record. ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment. ARGUMENTS – Appellant‘s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. RELIEF – Specification of the order/judgment which the appellant seeks. In cases not brought up by record on appeal, the appellant‘s brief shall contain (as an appendix) a copy of the judgment or final order appealed from. Attachment: Certified true copy of the decision or final order appealed from. [Rule 124, Sec. 7]

2. Appellee’s brief: [Rule 44, Sec. 14] a) Subject index. b) STATEMENT OF FACTS – Statement that appellee accepts the statement of facts in the appellant‘s brief; or COUNTER-STATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant‘s statement of facts, with references to the supporting pages of the record. Matters in the appellant‘s statement of facts should not be repeated. c) ARGUMENTS – Appellee‘s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. i. Dismissal of appeal for abandonment or failure to prosecute [Rule 124, Sec. 8] Grounds:  Appellant fails to file his brief within the prescribed time; Exception: Where the appellant is represented by a counsel de oficio.

REMEDIAL LAW REVIEWER If failure to file brief on time is the ground, appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed. o However, dismissal is proper despite lack of notice: a) If appellant has filed a MFR or motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason. [Baradi v. People (1948)] b) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment. [Salvador v. Reyes (1949)] If the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal. - Rationale: Escape of appellant during the pendency of the appeal implies a withdrawal of the appeal. Hence, judgment of the TC becomes final. [US v. Ravidas (1905)] - Likewise, when accused flees after the case has been submitted for decision, he is deemed to have waived his right to appeal. [People v. Ang Gioc (1941)] o Exception: Appeal will not be dismissed despite escape: a) In one exceptional case, the appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured 2 hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal. [People v. Valencia (1949)] b) If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities. [People v. Buenaventura (1994)] c) In case of automatic review. [People v. Cornelio (1971)] CA may dismiss the appeal upon appellee‘s motion or motu proprio. -





Prompt disposition of appeal [Rule 124, Sec. 9]  Appeals of accused who are under detention are given precedence in their disposition over other appeals.  The CA shall hear and decide the appeal at the earliest practicable time with due regard to the parties‘ rights.  The accused need not be present in court during the hearing of the appeal. - Proceedings on appeal will not be stayed in a criminal case on account of the absence of the accused as his presence is not necessary at said hearing. [US v. Lewis]

Reversal / modification of judgment on appeal [Rule 124, Sec. 10]  General rule: No judgment shall be reversed/modified. - Exception: When the CA, after an examination of the record and of the parties‘ evidence, is of the opinion that error was committed and such error injuriously affected the appellant‘s substantial rights.  When it involves credibility of witnesses, appellate courts will not generally disturb the TC‘s findings.  Rationale: The TC is in a better position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling (1976)] Scope of CA’s judgment [Rule 124, Sec. 11] The CA may: 1) Reverse/affirm/modify the judgment; 2) Increase/reduce the penalty imposed by the TC; 3) Remand the case to the RTC for new trial or retrial; 4) Dismiss the case. - When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors. [Ko Bu Lin v. CA (1982)] CA’s power to receive evidence [Rule 124, Sec. 12]  The CA has power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: 1) Falling within its original jurisdiction; 2) Involving claims for damages arising from provisional remedies; 3) Where the court grants a new trial based only on the ground of newly-discovered evidence.  CA‘s trials and hearings must be continuous and completed within 3 months, unless extended by the Chief Justice. Quorum in the CA [Sec. 11, BP 129]  3 CA Justices constitute a quorum for the sessions of a division.  The unanimous vote of the 3 Justices of a division is necessary for the pronouncement of a judgment or final resolution  Decision is reached through a consultation before the writing of the opinion by a member of the division.  If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to designate 2 additional Justices to sit temporarily

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60

with them. They shall then form a special division of 5 members. - The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution. - Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices. Certification or appeal of cases to the SC [Rule 124, Sec. 13] 1) If the CA finds that death penalty should be imposed:  AUTOMATIC REVIEW – CA shall render judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything.  Note: Death penalty has been abolished. 2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals:  The appeal shall be automatically included in the case certified for review in the SC 3) If the CA imposes reclusion perpetua, life imprisonment or a lesser penalty:  It shall render and enter judgment imposing such penalty.  Appeal here is not automatic. The accused has to file a notice of appeal with the CA. Judgment transmitted and filed in TC  When the CA‘s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken. [Rule 124, Sec. 17]  This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file. MNT during the pendency of appeal in the CA [Rule 124, Sec. 14]  Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: - After the appeal from the lower court has been perfected, but - Before the CA judgment convicting him becomes final.  The motion shall conform to Rule 121, Sec. 4.  If the CA grants a MNT, it may either: [Rule 124, Sec. 15] 1) Conduct the hearing and receive evidence; 2) Refer the trial to the court of origin. MFR of CA judgment [Rule 124, Sec. 16]  MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party.



The mittimus shall be stayed during the MFR‘s pendency. - General rule: No party shall be allowed a 2nd MFR of a judgment or final order. [Sec. 11, BP 129] - Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature.

Applicable civil procedure rules [Rule 124, Sec. 18] Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule.

Procedure in the SC a. Uniform procedure [Rule 125, Sec. 1] General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. Exception: If the Constitution or law provides otherwise. b. What the SC may do on review  In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, WON they were assigned as errors. [People v. Olfindo (1924)]  It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed. [Macali v. Revilla (1926)]  It may also assess and award civil indemnity. [Quemel v. CA (1946)] c.

Ways by which a case may reach the SC i. Automatic review  It is not a matter of right on the part of the accused, but a matter of law.  Hence, the escape of the accused does not relieve the SC of the burden of automatically reviewing the case. [US v. Laguna (1910)]  When available: - When the RTC judgment upon the accused imposes death penalty. [Rule 122, Sec. 10] - When the RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review. [Rule 124, Sec. 13]

REMEDIAL LAW REVIEWER ii.

Ordinary appeal When available:  When the penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3]  When an accused was charged with 2 or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC. [Rule 122, Sec. 3]  When the penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC. [People v. Carino]  In these cases, the SC reviews not only errors of law but also the findings of fact by the TC.

iii. Petition for review on certiorari  When available: - When constitutionality/validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question. o When validity of law is questioned by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v. Sweeney (1904)] - When the jurisdiction of any inferior court is in issue. - When only an error or question of law is involved. - On decisions of the CA and the Sandiganbayan. o As a rule, review here is limited to errors of law.  General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available. Exception: Cases where certiorari is granted despite existence of the remedy of appeal: 1. Where public welfare and advancement of public policy so dictate. 2. Where the broader interests of justice so require.

3. 4.

Where the orders complained of were found to be completely null and void. Where appeal was not considered as the appropriate remedy.

d. Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal. [RA 296] e. Erroneous choice / mode of appeal  In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant shall be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected.  The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal. f. Review of CA decisions  The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases. [Rule 125, Sec. 2]  General rule: The SC‘s appellate jurisdiction in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. - The CA‘s findings of fact are final. - If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should dismiss appeal. [Guico v. Mayuga (1963)] - Exception: [Vargas v. CA; Napolis v. CA (1972)] o When the conclusion is a finding founded entirely on speculations/surmises/conjectures; o When the inference made is manifestly mistaken/absurd/impossible; o When there is GAD; o When the judgment is based on a misapprehension of facts; o When the findings of facts are conflicting; o When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee. g. Decisions if opinion is equally divided [Rule 125, Sec. 3]  When the SC en banc is equally divided in opinion or the necessary majority cannot be had on WON to acquit the appellant, the case shall again be deliberated upon. - If no decision is reached after redeliberation, the lower court‘s judgment of conviction shall be reversed and the accused is acquitted.  If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc.

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h. Constitutional provisions on SC composition [Art. 8, Sec. 4, Consti]  SC Composition: 1 Chief Justice + 14 Associate Justices.  SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members.  No doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may be modified/reversed.

4. Effect of appeal by any of several accused [Rule 122, Sec. 11] 

General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. - As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. - As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA (1996)] Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal. [People v. Escano]



The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from.

5. Grounds for dismissal of appeal When appeal by the people will not lie  The People/State cannot appeal when it will put the accused in double jeopardy. The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached. [Republic v. CA]  The prosecution cannot appeal from a judgment of acquittal - Rationale: A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)]  Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy. [US v. Kilayko (1916)]  Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable. [People v. Duran (1960)]  An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)]  The preclusion against appeal by the State from judgments or final orders having the effect of

acquittal, applies even though accused did not raise question of jeopardy. [People v. Ferrer (1956)]

XV.

SEARCH AND SEIZURE

1. Nature of search warrant 2. Distinguish from warrant of arrest 3. Application for search warrant, where filed 4. Probable Cause 5. Personal examination by judge of the applicant and witnesses 6. Particularity of place to be searched and things to be seized 7. Personal property to be seized 8. Exceptions to search warrant requirement a. Search incident to lawful arrest b. Consented search c. Search of moving vehicle d. Checkpoints; body checks in airport e. Plain view situation f. Stop and frisk situation g. Enforcement of custom laws 9. Remedies from unlawful search and seizure

1. Nature of search warrant Concept Definition It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. (Rule 126, Sec. 1) If it is without the judge‘s signature: it is fatally defective. Nature of a Search Warrant A search warrant (SW) is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime. [Malaloan v. CA (1994)]     

A search warrant is in the nature of a criminal process, and may be invoked only in furtherance of public prosecutions; Search warrants have no relation to civil process or trials; and They are not available to individuals in the course of civil proceedings; It is not for the maintenance of any mere private right; It is interlocutory in character – it leaves something more to be done, which is the determination of the guilt of the accused.

REMEDIAL LAW REVIEWER Constitutional Safeguard Search and Seizures 







against

Unreasonable

Rule 126 is an implementation of Art. III, Sec. 2 of the 1987 Constitution. - The right of the people to be secure in their persons / houses / papers / effects against unreasonable searches and seizures of whatever nature or for any purpose shall not be violated. - No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized. (Art. III, Sec. 2, 1987 Const.) - The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety/order requires otherwise, as prescribed by law. (Art. III, Sec. 3, 1987 Const.) Exclusionary rule: Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Art. III, Sec. 3, Par. 2, 1987 Const.) Doctrine of attenuation: Despite the illegality in obtaining evidence, such evidence may be admissible if the connection between the evidence and the illegal method is sufficiently remote or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)] Rationale - What is sought to be guarded is man‘s prerogative to choose who is allowed entry to his residence. His privacy must not be disturbed by the government, except in cases of overriding social need, and then only under the stringent procedural safeguards. [Villanueva v. Querubin (1972)] - A man‘s house is his castle. However, he may not use his castle as a citadel for aggression against his neighbors, nor can he within its walls create such disorders as to affect their peace. [US v. Vallejo (1908)]



This constitutional guarantee is NOT a blanket prohibition against ALL searches and seizures. It operates only against ―unreasonable‖ searches and seizures.



What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the

character of the articles procured [Rodriguez v. Villamiel (1937)] Constitutional Protection is Against Officers’ Acts, Not Private Persons

Public

People v. Marti (1991); also People v. Bongcarawan (2002): Search and seizure clauses are restraints upon the government and its agents, not upon private individuals. In the case at bar, the evidence was primarily discovered by a private person, acting in a private capacity and without the intervention and participation of state authorities. The private person made an inspection as part of a reasonable standard operating procedure / a precautionary measure before delivery of packages to the Bureau of Customs. The mere presence of the NBI agents did not convert the reasonable search into a warrantless search and seizure proscribed by the constitution. However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. Exceptions: Valid warrantless searches.

2. Distinguish from warrant of arrest Search Warrant Will be issued only upon probable cause in connection with one specific offense to be determined by the judge or such other responsible officers authorized by law. Examination under oath or affirmation of the complaint and the witnesses he may produce. It must particularly describe the place to be searched and the things to be seized. Generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night. Valid for ten (10) days.

Warrant of Arrest The witness must be examined personally by the judge.

Examination under oath.

must

be

Examination must be reduced to writing in the form of searching questions and answers. May be made at any time of the day or night.

Does not expire terminal life).

(No

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3. Application for search warrant, where filed Application Where filed (Rule 126, Sec. 2)  Any court within whose territorial jurisdiction the crime was committed.  For compelling reasons stated in the application: - If the place of the commission of the crime is known, any court within the judicial region where the crime was committed. - Any court within the judicial region where the warrant shall be enforced.  However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Exception: Malaloan v. CA (1994) subject to Rule 126, Sec. 1  If a case has not yet been filed, it may be filed in a court with a territorial jurisdiction other than that where the illegal articles sought to be seized are located.  This is aside from the consideration that a criminal action may be filed in different venues under the rules for continuing crimes, or where different trial courts have concurrent original jurisdiction over the same criminal offense.  The ruling may be applicable: - When the crime is found to have been committed in a particular place WITHIN the judicial region. - Where a particular court, by reason of its territorial area, has jurisdiction. - And where prosecutor, who filed the complaint or information in said court, has territorial jurisdiction different from the court within the same judicial region which actually issued the warrant. Search guidelines under Circular No. 19, s. 1987  All applications for search warrants relating to violations of: - The Anti-Subversion Act; - Crimes against public order as defined in the RPC; - Illegal possession of firearms and/or ammunition; and - Violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located.  In the absence of the Executive Judge, the ViceExecutive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where the application is filed.  Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise



be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, and its issuance is urgent. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Court's Administrative Circular No. 13, dated October 1, 1985.

A.M. No. 99-10-09-SC (Resolution Clarifying the Guidelines on the Application for and Enforceability of Search Warrants)  The following are authorized to act on all applications for search warrants involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms: The Executive Judge and Vice Executive Judges of the RTC of Manila and Quezon City filed by the PNP, NBI, the Presidential Anti-Organized Crime Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF) with the RTC of Manila and QC.  The applications shall be personally endorsed by the Heads of said agencies, for the search of places to be particularly described therein, and the seizure of property or things as prescribed in the Rules of Court, and to issue the warrants of arrest, if justified, which may be served in the places outside the territorial jurisdiction of said courts.  The authorized judges shall keep a special docket book listing the details of the applications and the results of the searches and seizures made pursuant to the warrants issued.  Although A.M. No. 99-10-09-SC provides a personal endorsement of the application by the ―Heads‖ of the agencies mentioned, it was held that nothing in this rule prohibits such heads from delegating the ministerial duty of endorsing the application for search warrants to their assistant heads, as long as it is not inconsistent with law (Admin. Code). [Marimla v. People (2009)] Substance of application Requisites for issuing a search warrant A SW shall not issue except: a. Upon probable cause in connection with one specific offense; b. To be determined personally by the judge; c. After examination under oath or affirmation of the complainant and the witness he may produce; d. Particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Rule 126, Sec. 4) 

Absence of the requisites will cause the nullification of the SW.










If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause (PC) to believe that they exist, he shall issue the SW, which must be substantially in the form prescribed by the Rules. (Rule 126, Sec. 6) In issuing or not issuing SWs, judges act according to the evidence presented to them, and orders of the judge on the matter are not final and do not constitute res judicata. [Cruz v. Dinglasan (1949)] The denial of a search warrant on the insufficiency of the affidavit and deposition is not a bar to further proceedings, nor is the issuance of the warrant and its subsequent discharge res judicata as to the right to the warrant. [Cruz, supra] Courts have declared invalid SWs that did not comply with the requisites found in the 1987 Const. (and restated in the rules). [Lim v. de Leon (1975)] A court‘s disregard for the requirements constitutes grave abuse of discretion which may be remedied by a petition for certiorari under Rule 65.

Issuance and form of search warrant  It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. (Rule 126, Sec. 1)  A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Rule 126, Sec. 4)  If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Rule 126, Sec. 6)  SW must be in writing and contain: - Name of person against whom it is directed; - Offense for which it was issued; - The place to be searched and - The description of the specific things to be seized; - A directive to law enforcement officers to search and seize; - And for them to bring in court the things seized; - Signature of the judge issuing it. Validity of search warrant Period of validity: 10 days from its date. Thereafter, it shall be void. (Rule 126, Sec. 10) Lifetime of SW ends when a return has already been made. [Mustang Lumber v. CA (1996)]

Service of search warrant Right to break door or window to effect search  The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. (Rule 126, Sec. 7)



Knock and announce principle: Generally, officers executing a search must do the following acts: - Announce their presence; - Identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched; - Show to them the search warrant; and - Explain the warrant in a language or dialect known and understood by them. When unannounced intrusion is permissible: - Person in the premises refuses to open it upon demand; - Person in the premises already knew of the identity and authority of the officers; - When the officers have an honest belief that there is an imminent danger to life and limb; - When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officers to believe that an escape or the destruction of evidence is imminent.

Search of house, room, or premise, to be made in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 8) Time of making search  The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (Rule 126, Sec. 9)  A SW violates Rule 126, Sec. 9 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. [Asian Surety v. Herrera (1973)]  Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the SW. [Asian Surety, supra]

65

REMEDIAL LAW REVIEWER Post-service

66

Receipt of property seized How receipt is given (Rule 126, Sec. 11) If lawful The officer seizing the property under occupant the SW must give a detailed receipt for was the same to the lawful occupant of the present premises in whose presence the search and seizure were made. If he was The officer seizing the property under not the SW must, in the presence of at present least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Delivery of property and inventory thereof to court (Rule 126, Sec. 12)  The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.  Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made.  If the return has been made, the judge shall ascertain whether Sec. 11 of Rule 126 has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that delivery has been complied with.  The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.  A violation of this section shall constitute contempt of court. 

Goods seized remain under the court‘s custody and control until the institution of the appropriate criminal action with the proper court. [Tenorio v. CA (2003)]

RE: REQUEST OF POLICE DIRECTOR GENERAL AVELINO I. RAZON FOR AUTHORITY TO DELEGATE THE ENDORSEMENT OF APPLICATION FOR SEARCH WARRANT A.M. No. 08-4-4-SC SEC. 12. Issuance of search warrants in special criminal cases by the RTCs of Manila and Quezon City. – The Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of the RTCs of Manila and Quezon City shall have authority to act on applications filed by the National Bureau of Investigation (NBI), the Philippine National Police (PNP) and the Anti-Crime Task Force (ACTAF), for search warrants involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the

Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court. The applications shall be endorsed by the heads of such agencies or their respective duly authorized officials and shall particularly describe therein the places to be searched and/or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and Vice-Executive Judges concerned shall issue the warrants, if justified, which may be served outside the territorial jurisdiction of the said courts. The Executive Judges and the authorized Judges shall keep a special docket book listing names of Judges to whom the applications are assigned, the details of the applications and the results of the searches and seizures made pursuant to the warrants issued. This Section shall be an exception to Section 2 of Rule 126 of the Rules of Court. (Emphasis supplied.)

4. Probable Cause Generally  Issued upon probable cause Probable cause: Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched. - This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. - The probable cause must refer only to one specific offense. [Roan v. Gonzales (1986)] - A probable cause to arrest does not necessarily involve a probable cause to search and vice-versa. Probable cause justifying warrantless arrest and warrantless search This implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction. It is not determined by a fixed formula but is resolved according to the facts of each case.

5. Personal examination by judge of the applicant and witnesses Aside from the requirements mandated by Rule 126, Sec. 4, the rule requires the judge to comply with a specific procedure in the conduct of the examination of the complainant and the witnesses he may produce. The required procedure involves the following:  The examination must be personally conducted by the judge;

REMEDIAL LAW REVIEWER    

The examination must be in the form of searching questions and answers; The complainant and the witnesses shall be examined on those facts personally known to them; The statements must be in writing and under oath; and The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record. (Rule 126, Sec. 5)

Determined by judge himself SEARCHING QUESTIONS AND ANSWERS:  Such questions which have the tendency to show the commission of a crime and the perpetrator thereof. [Luna v. Plaza (1968)]  In search cases, the application must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity and the items will be found in the place to be searched.  A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid.  Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Yao v. People (2007)] Judge must examine under oath or affirmation the complainant and the witness he may produce A warrant not based on personal knowledge is void. 

Examination under oath: OATH: Includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. - The oath required must refer to the truth of facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate of the existence of PC. [Alvarez v. CFI (1937)] - Mere affidavits of the complainant or his witnesses are not sufficient. The examining judge has to take depositions in writing of the complaint or his witnesses, and attach the same to the record. [Prudente v. Judge Dayrit (1989), citing Roan]

Instances of invalid examination  The complainant‘s application for SW and the witness‘ printed-form deposition were subscribed and sworn to before the judge, but the latter did not ask either of the 2 any questions, the answer to which could possibly be the basis for determining WON there was PC. The participation of the judge was limited to



listening to the stenographer‘s reading of her notes, and administering the oath to complainant and his witnesses. Thus, it cannot be said that the judge personally conducted the examination required. [Bache v. Ruiz (1971)] - In the reading of the transcribed notes of the deposition of the applicant and his witnesses taken by the clerk of court, the judge was not able to observe the deponent‘s demeanor nor to propound initial and follow-up questions. [Bache, supra] Where the judge issuing the SW acted solely on the basis of the affidavits of the complainant and his witnesses, which were sworn to before another judge, without personally asking the witnesses questions. [Doce v. CFI (1968)]

Instances of valid examination The validity of the SW and the affidavits is not impaired by the fact that they are pre-typewritten by law enforcement agents, as long as they are subscribed and sworn to before the judge. In Luna (regarding warrants of arrests, but applicable by analogy), the Court said that the law is complied with where the judge adopts as his own personal examination the questions asked by the police investigator, as appearing in the written sworn statements, which the judge read again to the witnesses, whether said answers were his, and whether said answers were true, to which the witnesses replied in the affirmative, there being no prohibition to the contrary.

6. Particularity of place to searched and things to be seized

be

Warrant issued must particularly describe the place to be searched and the persons to be seized  DESCRIPTION OF PLACE Description of place to be searched is sufficient if the officer with the SW can, with reasonable efforts, ascertain and identify the place intended. [People v. Veloso (1925)] - An apparent typographical error will not necessarily invalidate the SW, as long as the application contains the correct address. [Burgos v. Chief of Staff (1984)]  TEST OF PARTICULARITY - The executing officer‘s prior knowledge as to the place intended in the SW is relevant. - This would seem especially true where the executing officer is the affiant on whose affidavit the SW had issued, and when he knows that the judge who issued the SW intended the building described in the affidavit. - The executing officer may look to the affidavit in the official court file to resolve an ambiguity in the SW as to the place to be searched. [Burgos, supra] Particularity Search warrant must be for only one specific offense.

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68

General rule: The offense alleged must be specific as to enable the judge to find the existence of a probable cause.  Definite provisions of the allegedly violated laws must be referred to.  No SW shall issue for more than one specific offense. [RPC] Otherwise, the SW is void.  The fact that the SW does not specify the specific offense does not render it a general warrant. What is important is that the application for SW states the specific offense deemed to have been violated by the person against whom the search warrant is addressed.  Scatter-shot warrant: One which allows search for more than one specific offense and is null and void for being violative of the Constitution.  A SW issued for an ―illegal traffic of narcotics and contraband‖ is fatally defective. The latter is a generic term covering all goods exported from or imported in the country contrary to applicable statutes. Necessarily then, more than one offense could arise from the activity designated as illegal traffic of narcotics and contraband. [Castro v. Pabalan (1976)] Exception: In People v. Marcos (1990), the SW was declared valid despite lack of mention of specific offense because the application stated that the owner of the grocery store against whom the warrant was directed, had in his possession unadulterated stocks in violation of the provisions of Art. 188 and 199 [RPC], which are closely allied articles as the punishable acts defined in one of them can be considered as including or is necessarily included in the other. Things to be seized must be particularly described  The SW must not suffer from generality. Otherwise, the search and seizure of the items in the implementation of such SW is illegal and the items seized are inadmissible in evidence. (Art. III, Sec. 2 of the 1987 Const.)  Personal property only. SW does not issue for seizure of immovable properties.  Ownership of the property seized is immaterial. It is sufficient that the person against whom SW is directed has control/possession of the property. [Burgos, supra] Purpose: To limit the things to be seized to those (and only those) particularly described in the SW, leaving the officers no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. [Uy Kheytin v. Villareal (1920)] General rule: Things to be seized must be described particularly. General search warrants are not allowed.  SWs authorizing the seizure of books of accounts and records ―showing all the business transactions‖ of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law. [Stonehill v. Diokno (1967)]



Likewise, a description of things to be seized as ―subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials‖ hardly provided a definite guideline to the executing officers. [Dizon v. Hon. Castro (1985)] And where the language used is too allembracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable. [Columbia Pictures v. Flores (1993)]

Exceptions:  Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no SW could issue. [People v. Rubio (1932)]  The general description of the documents listed in the SW does not render the SW void if the SW is severable, and those items not particularly described may be cut off without destroying the whole SW. [Uy v. BIR (2001)]

7. Personal property to be seized The property subject of a search warrant is personal property, not real property. [Riano (2011)] What may be seized (Rule 126, Sec. 3)  Personal property subject of the offense.  Personal property stolen/embezzled and other proceeds/fruits of the offense.  Personal property used or intended to be used as the means of committing an offense. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control of possession of the property sought to be seized. [Burgos v. Chief of Staff (1984)] Rules on DNA Evidence A.M. No. 06-11-5-SC (October 2, 2007) The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties. (Sec. 4) In a search incidental to an arrest even WITHOUT a warrant, the person arrested may be searched for (Rule 126, Sec. 13)  Dangerous weapons.  Anything which may have been used or constitute proof in the commission of the offense.

8. Exceptions requirement

to

search

warrant

a. Search incidental to lawful arrest

REMEDIAL LAW REVIEWER Warrantless searches allowed as an incident of lawful arrest  Generally: Rule 126, Sec. 13, as illustrated by jurisprudence  A person lawfully arrested may be searched for (1) dangerous weapons or anything which may have been (2) used or (3) constitute proof in the commission of an offense without a search warrant. (Rule 126, Sec. 13) - The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest at if the police have probable cause to make the arrest at the outset of the search. [Riano (2011)]  The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are inadmissible as evidence. [People v. Aruta (1998)]  The search is confined to his person, but as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. The extent and reasonableness of the search must be decided on its own facts and circumstances. [Nolasco v. Paño (1985); Note: The MR was partially granted in 1987 and held that the arrest was unlawful, thus the search was likewise unlawful.] - An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping or which may be used as evidence in the trial of the case. [People v. Musa (1997)] - In People v. Leangsiri (1996), the accused were lawfully arrested in Rm. 504 of a hotel and a warrantless search was conducted in Rm. 413. The search was held to be illegal. - In Chimel v. California (1969), the US SC said that there is no justification for searching through all of the desks drawers or other closed and concealed areas in the room where arrest was made. A SW was needed. - When one is legally arrested for an offense, whatever is found in his possession/control may be seized and used in evidence against him. [Alvero v. Dizon (1946)] - Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal. [Lui v. Matillano (2004)]

b. Consented Search Consented warrantless search Rationale: The right to privacy may be waived.  The consent to a warrantless search must be voluntary, that is, it must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Consent to a search is not to be lightly inferred,

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but must be shown by clear and convincing evidence. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. [Valdez v. People (2007)] Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. [People v. Nuevas (2007)] When one voluntarily submits to a search or consents to have it made of his person/premises, he is precluded from later complaining thereof. [People v. Kagui Malasugui (1936)] A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. [People v. Nuevas (2007)] When is consented search reasonable: Only if kept within the bounds of the actual consent. - A person‘s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto. - Officers may not use a person‘s limited consent to get inside his home and conduct a general search. - The US SC said that a search for a stolen TV set cannot extend to search of an individual‘s other papers and documents. On the other hand, where there is a nexus between the crime for which the evidence is sought and the item that is seized, there is no abuse of the consent to a search.

c. Search of moving vehicle Search of moving vehicle Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. [People v. Tuazon (2007)]  However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense.  The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of SW. [Roldan v. Hon. Arca (1975)]

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Nonetheless, in all cases falling under this category, there must be a showing of a PC of a violation of the law. [Caroll v. US (1924)] Where a vehicle is stopped and subjected to an extensive search, the warrantless search is valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality/evidence pertaining to a crime, in the vehicle to be searched. [People v. CFI (1980)] Highly regulated by the government, the vehicle‘s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. [Riano (2011)]

d. Check points; body checks in airport Searches conducted in checkpoints [People v. Vinecario (2004)]  They are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists.  The vehicle is neither searched nor its occupants subjected to a body search (i.e. inspection of the vehicle is limited to a visual search).  Routine inspections are not regarded as violative of an individual‘s right against unreasonable search: - Where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; - Officer simply looks into a vehicle; - Officer flashes a light therein without opening car‘s doors; - Occupants not subjected to a physical search; - Inspection is limited to usual search or inspection; or - Routine check is conducted in a fixed area [People v. CA (2002)]

e. Plain view situation Plain view doctrine (2008 Bar) Rationale: Authorities do not consider a mere observation of what is in plain view, a search. Thus, objects falling in the plain view of a police officer who has a right to be in the position to have that view are not products of a search, may be seized and may be introduced in evidence. [Harris v. US (1968)] Requisites (PIA): [People v. Valdez (1999), People v. Salanguit (2001)] - A prior valid intrusion i.e., based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; - Evidence was inadvertently discovered by the police who have a right to be where they are;

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Evidence must be immediately apparently illegal (i.e., drug paraphernalia); Plain view justified mere seizure of evidence without further search.

Limitations: [People v. Musa (1993)] - It may not be used to launch unbridled searches and indiscriminate seizures. - Does not extend to a general exploratory search made solely to find evidence of defendant‘s guilt. 

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The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Even if an object is in plain view, before it can be seized without a SW, its incriminating nature must first be apparent. Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering.

f. Stop and Frisk situation STOP AND FRISK: A limited protective search of outer clothing for weapons. [Malacat v. CA (1997)] Dual purpose: (1) The general interest of effective crime prevention and detection; and (2) The more pressing interest of safety and self-preservation of the police officer to permit him to take steps to assure himself that the person with whom he deals with is not armed with a deadly weapon that could be used against him. [Esquillo v. People (2010)]  Where a police officer observes unusual conduct, which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be armed and presently dangerous,  Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [Terry v. Ohio (1968)]  Under this theory, PC is not required to conduct a ―stop and frisk‖ but, nevertheless, mere suspicion/hunch will not validate a ―stop and frisk.‖ - Test: Genuine reason - Reasonable belief based on genuine reason and in the light of the officer‘s experience and the surrounding circumstances, that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous.

REMEDIAL LAW REVIEWER Based on ―specific and articulable facts‖ and not merely upon the officer‘s bare suspicion or hunch. A genuine reason must exist, in light of the police officer‘s experience and surrounding condition, to warrant the belief that the person has weapons concealed about him.

SOP. Constitutional rights cannot be invoked when there is no government interference. [People v. Marti (1999)] - Extent of participation by NBI agents is merely CONFIRMATORY and NOT EXPLORATORY

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g. Enforcement of Custom Laws Customs search For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure. [General Travel Services v. David (1966)] The Tariff Code authorizes customs officers to:  Enter, pass through or search any land, enclosure, warehouse;  Inspect/search/examine any vessel/aircraft and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law. General rule: The Tariff and Customs Code does not require a warrant for such searches. Exception: In the search of a dwelling house, SW is required.

h. Other exceptions 

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Exigent and Emergency Circumstances Example: There was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by an intelligence report that said office was being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the people inside. The raiding team had no opportunity to apply for warrant as the court then was closed. There was urgency and exigency that warrant was lawfully dispensed with. [People v. de Gracia (1994)] Buy-bust Operation: No need for SW (or warrant of arrest) because the accused is caught in flagrante delicto. - A form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense. - Entrapment: Employment of such ways and means for the purpose of trapping or capturing a lawbreaker - Absence of prior surveillance, much less a lengthy one, or test buy does not affect the legality of the buy-bust operation. [People v. Concepcion (2008)] Private Searches and ―State Expansion of Private Search‖ The evidence was obtained by a private person acting in a private capacity without state participation and intervention. It was company

9. Remedies from unlawful search and seizure Who may avail of remedies  Only the party whose rights have been impaired thereby; the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. [Stonehill v. Diokno (1967); Santos v. Pryce Gases, Inc. (2007)]  Hence, when a corporation‘s documents were seized, the corporate officers cannot question the legality of the search as their personalities are separate and distinct from that of the corporation. [Stonehill v. Diokno (1967)] Remedies  Employ any means to prevent the search. - Without a SW, the officer cannot insist on entering a citizen‘s premises. If he does so, he becomes an ordinary intruder. - The person to be searched may resist the search and employ any means necessary to prevent it, without incurring any criminal liability. [People v. Chan Fook (1921)] 

File criminal action against officer. A public officer/employee who procures a SW without just cause is criminally liable under Art. 129, RPC (Search warrants maliciously obtained and abuse in the service of those legally obtained).

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File a Motion to Quash the illegal SW. - This remedy is employed if search is not yet conducted. General rule: The motion must be filed before the sala of the judge who issued it. Only the court that issued the SW may order revocation of SW or release of things seized. [Pagkalinawan v. Gomez (1967)] Exception: Where the SW is issued by one court and the criminal action based on the results of the search is afterwards filed in another court, the motion may be filed in either court. [People v. CA (1999)] What may be raised in the MTQ: - Existence or non-existence of probable cause at the time of issuance of the SW; - Compliance with procedural and substantial requisites. Matters of defense are to be raised in the criminal action. [DOH v. Sy Chi Siong (1989)]

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File a motion to return seized things. - This is the remedy used if the search was already

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REMEDIAL LAW REVIEWER conducted and goods were seized as a consequence thereof. - Where the motion will be filed follows the same rules as 2(c) above.

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Motion to quash a search warrant or to suppress evidence (2005, 2007 Bar) - A motion to suppress as evidence the objects illegally taken (exclusionary rule) – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding

Rule 126, Sec. 14 If criminal action has been filed If no criminal action has been instituted If no criminal action is filed and motion is first filed with the court that issued the SW, but it failed to resolve the motion and a criminal case is subsequently filed in another court

Where to file Court where the action has been instituted. Court that issued SW. Court where the subsequent criminal action has been instituted.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz (1971)]  No personal examination by the judge.  More than one specific offense.  No particular description.

buyer in good faith, but said goods were taken from the purchaser with the use of a SW although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)] Waiver of immunity against unreasonable searches and seizure [Pasion v. Locsin (1938)]  The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly.  Waiver cannot be made just by anyone, except the person whose right is being invaded or one who is expressly authorized to do so in his behalf. 

Requisites of a valid waiver: - It must appear that the right exists; - That the person involved had knowledge, (actual or constructive) of the existence of such right; - That the person had an actual intention to relinquish the right.

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Criminal Liability - Violation of the following: o Violation of domicile (RPC Art. 128) o SW maliciously obtained (Art. 129) o Searching domicile without witnesses (Art. 130) o Unjust interlocutory order (Art. 206) - Grounds: o Against public officer or employer:  Entering without authority; against the will; refuses to leave.  SW procured without just cause or if with just cause, exceeds his authority or uses unnecessary severity of force.  Conducting the search without the required witnesses. o Against judge  For knowingly rendering an unjust interlocutory order.  Inexcusable negligence or ignorance.

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Civil Liabilities - Violation of the following: o Violation of rights and liberties (Art. 32 [9], CC) o Malicious prosecution and acts referred to Art. 32. (Art. 2218, CC) - Malice or bad faith is not required - Not only official actions, but makes all persons who are responsible for the violation liable for damages [MHP Garments v. CA (1994)]

Who may file  Person injured.  Person searched.  Owner of the property. An accused may file a Motion to Suppress Evidence if he is not among the persons who can file a Motion to Quash. Effect of failure to quash warrant  Where no MTQ the SW was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression of the personal property seized IF the same is offered therein as evidence (REGALADO).  The MTQ a SW and Motion to Suppress Evidence are alternative, not cumulative remedies. Effects of illegal search  Illegally seized evidence may not be admitted in evidence in any proceeding. (Art. III, Sec. 2, 1987 Const.)  DISPOSITION OF ILLEGALLY SEIZED PROPERTY General rule: Goods seized by virtue of an illegal warrant must be returned. [Castro v. Pabalan (1976)] Exception: If possession of the things seized is prohibited by law, they should not be returned. o However, where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a

XVI. PROVISIONAL REMEDIES 1. Nature 

Provisional remedies in civil actions, insofar as they are applicable, may be availed of in


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connection with the civil action deemed instituted with the criminal action [Rule 127, Sec. 1] Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action (Regalado). If the civil action is suspended on account of filing of the criminal action: The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case [Ramcar Inc vs. de Leon]. Not available when: 1. Offended party has waived the civil claim 2. Offended party has reserved the civil claim 3. Offended party has already instituted a separate civil action 4. Criminal action carries with it no civil liability

2. Kinds of provisional remedies 

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Reference to provisional remedies in Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendent lite may be availed of. (Riano) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. [Rule 119, Sec. 11(b)]

Preliminary Attachment 1) When proper [Rule 127, Sec. 2] When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: 1. When the accused is about to abscond from the Philippines 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty 3. When the accused has concealed, removed or disposed of his property, or is about to do so 4. When the accused resides outside the Philippines 2) Issuance and implementation of the writ [Gonzalez v. State Properties (2001)] Issuance writ

of

When May be done before acquisition of jurisdiction over the accused; may be ex-parte

Enforcement of writ

Only after acquisition of jurisdiction over the person of the defendant

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APPENDIX 1: AVAILABILITY OF BAIL AVAILABLE as a MATTER AVAILABLE as a MATTER OF OF RIGHT DISCRETION After conviction by the RTC Before or after conviction imposing a penalty of by the MetTC, MTC, or imprisonment which does not MCTC (114.4) exceed 6 years (114.5)

Before conviction by the RTC wheter in the exercise of its original or appellate jurisdiction (114.4)

After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and not one of the circumstances in sec. 5 is present, or any other similar circumstances (114.5)

If, prior to the judgment becoming final or before the accused serves his sentence, the accused applies for probation as allowed by law, he may be admitted to bail or released on recognizance (114.24)

NOT AVAILABLE If the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, and the evidence of guilt is strong (114.7) After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and any of the ff. circumstances is present: 1) Recidivism, quasi-recidivism, habitual delinquency, commission of crime aggravated by circumstance of reiteration; 2) Previously escaped from legal confinement, evasion of sentence or violation of conditions of bail without valid justification; 3) Commission of offense while under probation, parole or conditional pardon; 4) Probability of flight; 5) Undue risk that he may commit another crime during the pendency of appeal. (114.5) 6) Any other circumstances as may be present and proved

After judgment has become final or the accused has commenced to serve his sentence (114.24)

REMEDIAL LAW REVIEWER APPENDIX 2: MODES OF REVIEW ORDINARY APPEAL

PETITION FOR REVIEW

Available after any judgment or final order

Available only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant the reversal/modification of the decision or final order sought to be reviewed.

Matter of right  By filing a notice of appeal with the court that rendered the judgment and serving a copy on the adverse party.  NOTICE OF APPEAL – Written notice of intention to take appeal. A mere verbal notice of an intention to appeal expressed by the accused, does not perfect an appeal. [People v. Natividad (1936)]  When no notice of appeal is given in writing or no record that any was given, the cause will be stricken from the court calendar since there was no appeal. [US v. Tenorio (1917)]  But when the accused manifests or gives notice of his intention to appeal in open court and files a bond for his provisional release within 15 days from the promulgation of the decision against him, he may be considered as having perfected his appeal. [People v. Agasang (1956)]

Not a matter of right

PETITION FOR REVIEW ON CERTIORARI  General Rule: Available only when issues of law are involved; findings of fact being deemed conceded by the appellant.  Exception: SC reviews questions both of fact and of law in cases decided by the RTC: [RA 296] o Where the penalty imposed is life imprisonment; o Which involve other offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed. Not a matter of right  Appeal by PFRC from the decision or final order of the RTC/CA may be taken by filing the petition within 15 days from notice of judgment or of the denial of MFR filed in due time.  Copy must be served on the court whose judgment or final order is sought to be reviewed.  If no record of appeal has been filed in the CA, the SC clerk of court, upon admission of the petition, shall demand from the CA the elevation of the whole record of the case. [Rule 45, Sec. 2]  Provision above governs procedure of appeal from RTC or Sandiganbayan to the SC.

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2012

REMEDIAL

Civil Procedure BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages


LAW REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Civ Pro Subject Heads | Gianna De Jesus • Samantha Sy • Subject Writers | Marijo Alcala • Jian Boller • Althea Oaminal • Giselle Mauhay • Zharmai Garcia • Tina Reyes • Joseph Go II • Marie Cristine Reyes • Nickie Bolos • Mae Ann Acha • Ma-anne Rosales • Jill Hernandez • Gene Lopez • Joanne Batimana LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes


Civil Procedure REMEDIAL LAW Criminal Procedure Civil Procedure Evidence Special Proceedings

General Principles Jurisdiction I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII.

Actions Cause of Action Parties to Civil Actions Venue Pleadings Summons Motions Dismissal of Actions Pre-Trial Intervention Subpoena Modes of Discovery Trial Demurrer to Evidence Judgments and Final Orders Post-Judgment Remedies Execution, Satisfaction and Effect of Judgments XVIII. Provisional Remedies XIX. Special Civil Actions

GENERAL PRINCIPLES A. Concept of Remedial Law B. Substantive Law as Distinguished from Remedial Law C. Rule-making Power of the Supreme Court D. Nature of Philippine Courts

A. Concept of Remedial Law Concept Remedial statute or statutes: (1) relating to remedies or modes of procedure; (2) do not take away or create vested rights; (3) BUT operate in furtherance of rights already existing. [Riano citing Systems Factor Corporation v NLRC (2000)] The Rules of Court, promulgated by authority of law, have the force and effect of law, if not in conflict with positive law [Inchausti & Co v de Leon (1913)]. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Shioji v Harvey (1922)]. Applicability The Rules of Court is applicable in ALL COURTS, except as otherwise provided by the SC [Rule 1, Sec. 2]. It governs the procedure to be observed in civil or criminal actions and special proceedings [Rule 1, Sec. 3]. It does not apply to the following cases: [ELCINO] (1) Election cases,

(2) (3) (4) (5) (6)

Land registration cases, Cadastral cases, Naturalization cases, Insolvency proceedings Other cases not herein provided for

Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4] Prospectivity/Retroactivity The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)]. Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)].

B. Substantive Law as Distinguished from Remedial Law Remedial law or Procedural law  provides a method of enforcing the rights established by substantive law;  prescribes the method of enforcing rights or obtaining redress for their invasion. [Bustos v Lucero (1948)]  Judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. [Fabian v Desierto (1998)] Substantive law  is that part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public affairs [Bustos v Lucero (1948)]

C. Rule-making Power of the Supreme Court  The Rules of Court was adopted and promulgated by the Supreme Court pursuant to the provisions of Sec 5(5) of Art. VIII of the Constitution, vesting in it the power to: Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.  The power to promulgate rules of pleading, practice, and procedure is no longer shared by the Supreme Court with Congress, more so with the executive… [Riano citing Echegaray v Secretary of Justice (1999)]

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1. Limitations on the rule-making power of the Supreme Court  Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power: [SUS] - that the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; - that the rules shall be uniform for courts of the same grade; and - that the rules shall not diminish, increase or modify substantive rights.

2. Power of the Supreme Court to amend and suspend procedural rules Power to amend remedial laws  The constitutional faculty of the Court to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v Heirs of Santiago (2006)].  The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of case [Neypes v CA (2005)] Power to suspend remedial laws  It is within the inherent power of the Supreme Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)].  When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice, their suspension is justified [Republic v CA (1978)].  There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. The matter is discretionary upon the Court [Republic v Imperial Jr. (1999)].  The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)].  Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Polanco v Cruz (2009)].

then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114]

D. Nature of Philippine Courts 1. Meaning of a court Definition  A court is an organ of the government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice.  Generally, the term describes an organ of the government consisting of one person or of several persons, called upon and authorized to administer justice. It is also the place where justice is administered. [Riano citing Black’s and Am. Jur. and C. J. S.]

2. Court as distinguished from a judge Court Tribunal officially assembled under authority of law An organ of the government with a personality separate and distinct from judge An office

Person who sits in court

A public officer [Riano]

The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)].

3. Classification of Philippine courts NOTE: Please see succeeding discussions on a to d. a. Courts of law and equity

subsections

b.

Courts of Original and Appellate jurisdiction

c.

Courts of General and Special jurisdiction

d.

Constitutional and statutory courts

e.

NOTE: Although not laws in the technical sense of the term, Rules of Court, promulgated by authority of law, have the force and effect of law. [Riano citing Shioji v Harvey (1922)] Applicability: Prospective The Rules of Court shall govern cases brought after they take effect, and also all further proceedings

Judge Simply an officer of such tribunal

f.

for

Superior and Inferior courts  Superior courts – Courts which have the power of review or supervision over another and lower court.  Inferior courts – Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado] Courts of record and not of record

REMEDIAL LAW REVIEWER  Courts of record – Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. All Philippine courts, including inferior courts, are now courts of record. [Riano]  Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein.

4. Courts of jurisdiction

original

and

appellate

 Courts of original jurisdiction – Those courts in which, under the law, actions or proceedings may be originally commenced.  Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]

5. Courts jurisdiction

of

general

and

special

 Courts of general jurisdiction – Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules.  Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado]

6. Constitutional and statutory courts  Constitutional courts – Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionally-mandated court but created by statute.  Statutory courts – Those created, organized and with jurisdiction exclusively determined by law. [Regalado]

7. Courts of law and equity Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal [U.S. v. Tamparong (1998)]

8. Principle of judicial hierarchy  The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under the judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the

appropriate courts. [Riano citing Santiago v. Vasquez]  The principle is an established policy necessary to avoid inordinate demands upon the Court‘s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court‘s docket [Lim v. Vianzon (2006)].  When the doctrine/principle may be disregarded: A direct recourse of the Supreme Court‘s original jurisdiction to issue writs (referring to the writs of certiorari, prohibition, or mandamus) should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. [Mangahas v. Paredes (2007)]. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano].

9. Doctrine of non-interference doctrine of judicial stability

or

 The principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other‘s orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp.] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas].  The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Spinster Corp. v. Cagayan Electric Power].

JURISDICTION A. B. C. D.

Jurisdiction over the parties Jurisdiction over the subject matter Jurisdiction over the issues Jurisdiction over the res or property in litigation E. Jurisdiction of Courts F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation G. Totality Rule Jurisdiction Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)]. Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Consti]  To settle actual controversies involving rights which are legally demandable and enforceable;

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80

 To determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality. All courts exercise judicial power. Only the Supreme Court is the court created by the Constitution [Art 8, Sec. 1, Consti]. The Sandiganbayan is a Constitutionally mandated court, but it is created by statute. [PD 1486]

Jurisdiction in general A. Jurisdiction over the parties NOTE: The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions.

1. How jurisdiction over the plaintiff is acquired Jurisdiction over the plaintiff is acquired by filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court [Davao Light & Power Co., Inc. v CA].

2. How jurisdiction over the defendant is acquired  Acquired by the (1) voluntary appearance or submission by the defendant or respondent to the court or (2) by coercive process issued by the court to him, generally by the service of summons [de Joya v Marquez (2006), citing Regalado]  In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. CA].

B. Jurisdiction matter

over

the

subject

1. Meaning of jurisdiction over the subject matter Jurisdiction over the subject matter is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs (Riano citing CJS). It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz (1941)] How conferred and determined  It is conferred only by the Constitution or the law.  Jurisdiction CANNOT be:

- fixed by agreement of the parties; - cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties; - neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)]. - cannot be subject to compromise (Civil Code, Art 2035)  Jurisdiction over the subject matter is determined by the allegations of the complaint. It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. [Sindico v. Diaz (2004)].  Once attached to a court, it cannot be ousted by subsequent statute. - Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)]  The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. CA (1992)](2008 Bar Exam). - Exception: Non-payment of docket fee does not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. [Go v. Tong (2003)]

2. Jurisdiction versus the exercise of jurisdiction  Jurisdiction: the authority to hear and determine a cause — the right to act in a case. [Arranza v. BF Homes (2000)]. - ‗Exercise of Jurisdiction.‘: the exercise of this power or authority  Jurisdiction is distinct from the exercise thereof. Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Herrera v Baretto et al (1913)]

3. Error of jurisdiction as distinguished from error of judgment Error of jurisdiction It is one where the act complained of was issued by the court without or in excess of jurisdiction [Cabrera v. Lapid (2006)].

Error of judgment It is one which the court may commit in the exercise of its jurisdiction [Cabrera v. Lapid]. It includes errors of procedure or mistakes in the court‘s mistakes in the court‘s findings [Banco Filipino Savings v. CA (2000)]

REMEDIAL LAW REVIEWER Correctible only by the extraordinary writ of certiorari [Cabrera v Lapid] Renders a judgment void or voidable [Rule 16 Sec. 1, Rule 65]

Correctible by appeal [Cabrera v Lapid] Ground for reversal only if it is shown that prejudice has been caused [Banco EspañolFilipino v Palanca (1918)]

4. How jurisdiction is conferred and determined Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court.

5. Doctrine of primary jurisdiction  Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. Mora (2005)].  Objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court [Riano citing Omictin v. CA (2007)]

6. Doctrine of adherence of jurisdiction  Also known as doctrine of continuity of jurisdiction  The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case [Bantua v. Mercader (2001)].  As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, EXCEPT: - where there is an express provision in the statute - the statute is clearly intended to apply to actions pending before its enactment [Riano citing People v. Cawaling].  Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court. [Municipality of Kananga v Madrona (2003)]

7. Objections to jurisdiction over the subject matter  The Court may ex mero motu, or on its own initiative take cognizance of lack of jurisdiction [Fabian v. Desierto (1998)].

 Earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Riano citing Sec. 1(b) and 6 of Rule 16].  Jurisdiction over subject matter may be raised at any stage of proceedings, even for the first time on appeal [Calimlim v. Ramirez (1982)]

8. Effect of estoppel on objections to jurisdiction Jurisdiction by estoppel General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is conferred by law. Where there is none, no agreement of the parties can provide one. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. [SEAFDEC-AQD v. NLRC (1992)] Exception: Participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court‘s jurisdiction. [Soliven v. Fastforms (2004)]

C. Jurisdiction over the issues  The power of the court to try and decide issues raised in the pleadings of the parties [Reyes v. Diaz (1941)]  How conferred & determined: - Pleadings filed by the parties, - Agreement in a pre-trial order or stipulation [Rule 18, Sec. 2], or - Implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings in Rule 10, Sec. 5. [Regalado]

D. Jurisdiction over property in litigation

the

res

or

 Refers to the court‘s jurisdiction over the thing or the property which is the subject of the litigation.  Acquired either by - actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis (e.g.attachment or garnishment) or - by provision of law which recognizes in the court the power to deal with the property or subject-matter within its territorial jurisdiction (e.g. land registration) [Regalado]

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Specific jurisdiction

82

E. Jurisdiction of Courts 1. Supreme Court The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Consti] Powers of the Supreme Court [Art. 8, Sec. 5, Consti] a. EXERCISE original jurisdiction over:  Cases affecting ambassadors and other public ministers and consuls; - RTC also has concurrent jurisdiction  Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

Distinction between Questions of Law and Fact [Mendoza vs Salinas (2007)]  Question of law—exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.  Question of fact—exists when the doubt or query invites calibration of the whole evidence considering mainly the credibility of the witnesses, and the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation c. Assign temporarily judges of lower courts to other stations as public interest may require, which shall not last 6 six months without the consent of the judge concerned.

b. Review/revise/reverse/modify/affirm on appeal or certiorari, final judgments/orders of lower courts In:  All cases in which the constitutionality/validity of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation is in question; - NOTE: power of review contemplates the ff courts: CA, Sandiganbayan, CTA, RTC, and other courts authorized by law.  All cases involving the legality of any tax /impost /assessment /toll, or any penalty imposed in relation thereto;  All cases in which the jurisdiction of any lower court is in issue;  All criminal cases in which the penalty imposed is reclusion perpetua or higher;  All cases in which only errors/questions of law are involved.

d. Order a change of venue or place of trial to avoid a miscarriage of justice.

Exceptions: [Josefa v. Zhandong (2003)] - The conclusion is grounded on speculations/ surmises /conjectures; - The inference is manifestly mistaken/absurd/impossible; - There is grave abuse of discretion; - The judgment is based on a misapprehension of facts; - The findings of fact are conflicting; - There is no citation of specific evidence on which the factual findings are based; - The finding of absence of facts is contradicted by the presence of evidence on record; - The findings of the CA are contrary to those of the trial court; - The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; - The findings of the CA are beyond the issues of the case; - Such findings are contrary to the admissions of both parties.

f. Appoint all Judiciary officials/employees in accordance with the Civil Service Law.

e. Promulgate rules on:  Protection and enforcement of constitutional rights;  Pleading/practice/procedure in all courts;  Admission to the practice of law;  The Integrated Bar;  Legal assistance to the under-privileged. Guidelines on the rules: - Provide a simplified and inexpensive procedure for the speedy disposition of cases; - Uniform for all courts of the same grade; - Not diminish/increase/modify substantive rights. - Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC.

Constitutional commissions  COMELEC and COA – Unless otherwise provided by this Constitution or by law, any decision/order /ruling of each Commission may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of a copy thereof. [Art. 9-A, Sec. 7, Consti]  CSC - Judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [BP 129, as amended by RA 7902]  Sandiganbayan - Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the SC in accordance with Rule 45 of the Rules. - Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

REMEDIAL LAW REVIEWER 2. Court of Appeals [Sec. 9, BP 129] a. ORIGINAL JURISDICTION To issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs/processes, whether or not in aid of its appellate jurisdiction. Note: former rule only allowed the CA to issue auxiliary writs and processes in aid of jurisdiction. - The power is concurrent with the SC.

b. EXCLUSIVE ORIGINAL JURISDICTION Annulment of RTC judgments.

c. EXCLUSIVE APPELLATE JURISDICTION  Final judgments/decisions/resolutions/orders/awards of: - RTCs; - Quasi-judicial agencies/instrumentalities/ boards/commissions including: o SEC; o Social Security Commission; o ECC; o CSC.  Exception: Those falling within the SC‘s appellate jurisdiction of the Supreme Court in accordance with: - The Constitution; - Labor Code; - BP 129; - Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act of 1948. Review of decisions by the NLRC: [St. Martin’s Funeral Home vs NLRC (1998)]  Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to Petitioners for Certiorari under Rule 65.  All such petitions should be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts.  All special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1, 1999 shall not longer be referred to the CA, but shall forthwith be dismissed. Powers of the Court of Appeals  Try cases and conduct hearings;  Receive evidence  Perform any and all acts necessary to resolve factual issues raised, including the power to grant and conduct new trials or further proceedings. Trials or hearings must be continuous and must be completed within 3 months, unless extended by the Chief Justice.

3. Court of Tax Appeals [Sec. 7, RA 1125, as amended by RA 9282] a. Exclusive appellate jurisdiction to review by appeal  Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the BIR;  Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the BIR, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial;  Decisions, orders or resolutions of the RTCS in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction;  Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs;  Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals;  Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code;  Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Sec 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties.

b. Jurisdiction over cases involving criminal offenses: General rule: Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the BIR or the Bureau of Customs

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84

BUT! Offenses or felonies where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filling of such civil action separately from the criminal action will be recognized.

c. Exclusive appellate jurisdiction in criminal offenses:  Over appeals from the judgments, resolutions or orders of the RTCs in tax cases originally decided by them, in their respected territorial jurisdiction.  Over petitions for review of the judgments, resolutions or orders of the RTCs in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

d. Jurisdiction over tax collection cases as herein provided: General rule: Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes, fees, charges and penalties: BUT! collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 shall be tried by the proper MTC, MeTC and RTC

e. Exclusive appellate jurisdiction in tax collection cases: Over appeals from the judgments, resolutions or orders of the RTCs in tax collection cases originally decided by them, in their respective territorial jurisdiction. Over petitions for review of the judgments, resolutions or orders of the RTCs in the Exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs, in their respective jurisdiction." NOTE: RA9282 elevated CTA‘s rank to the level of the Court of Appeals with special jurisdiction.

4. Sandiganbayan [Sec.4 of RA 8249]  Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules.

 Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

a. Original Exclusive Jurisdiction  Violations of RA 3019 (Anti-graft and Corrupt Practices Law);  RA 1379 (Forfeiture of Illegally Acquired Wealth);  Crimes by public officers or employees embraced in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes committed by Public Officers) namely: - Direct Bribery under Art. 210 as amended by BP 871, May 29, 1985; - Indirect Bribery under Art. 211 as amended by BP 871, May 29, 1985; - Qualified Bribery under Art. 211-A as amended by RA 7659, Dec. 13, 1993; - Corruption of public officials under Art. 212 where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: o Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 Republic Act No. 6758) specifically including: o Provincial governors, vice-governors, members of the sangguniang panlalawigan, provincial treasurers, assessors, engineers and other provincial department heads; o City mayors, vice-mayors, members of the sangguniang panglungsod, city treasurers, assessors, engineers and other department heads; o Officials of the diplomatic service occupying the position of consul and higher; o Philippine Army and Air force colonels, naval captains and all officers of higher rank; o Officers of the PNP while occupying the position of Provincial Director and those holding the rank of Senior Superintendent or higher; o City and provincial prosecutors and their assistants; officials and the prosecutors in the Office of the Ombudsman and special prosecutor ; o President, directors or trustees or managers of government owned or controlled corporations, state universities or educational institutions or foundations; - Members of Congress and Officials thereof classified as Grade 27 and up under the Compensation and Classification Act of 1989; - Members of the Judiciary without prejudice to the provision of the Constitution; - Chairmen and members of Constitutional Commissions, without prejudice to the provision of the Constitution;




 

 

- All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned above; Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 & 14-A issued in 1986 Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction; - Provided, jurisdiction is not exclusive of the Supreme Court Petitions for Quo Warranto arising or that may arise in cases filed or that may be filed under EO 1, 2, 14 & 14- A OTHERS provided the accused belongs to Salary Grade 27 or higher: - Violation of RA 6713 - Code of Conduct and Ethical Standards - Violation of RA 7080 – The Plunder Law - Violation of RA 7659 - The Heinous Crime Law - RA 9160 - Violation of The Anti-Money Laundering Law when committed by a public officer - PD 46 referred to as the gift-giving decree which makes it punishable for any official or employee to receive directly or indirectly and for the private person to give or offer to give any gift, present or other valuable thing on any occasion including Christmas, when such gift, present or valuable thing is given by reason of his official position, regardless of whether or not the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainment in honor of the official or employee or his immediate relatives. - PD 749 which grants immunity from prosecution to any person who voluntarily gives information about any violation of Art.210, 211 or 212 of the RPC, RA 3019, Sec.345 of the NIRC, Sec. 3604 of the Customs and Tariff Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned and other laws, rules and regulations penalizing graft, corruption and other forms of official abuse and who willingly testifies against the public official or employee subject to certain conditions.

NOTE: Private individuals can be sued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public officer.

b. Appellate Jurisdiction Over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction  over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.

5. Regional Trial Courts a. Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP 129, Asked in the 2002 Bar Examinations]  Incapable of pecuniary estimation (2000 Bar Exam); - If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)] - If the basic issue is something other than the right to recover a sum of money, if the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)] - If the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. [Ascue v. CA (1991)] - Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. [Baito v. Sarmiento (1960)] - Action for specific performance is incapable of pecuniary estimation. [Manufacturer’s Distributor’s v. Yu Siu Liong (1966)] - The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. - The alternative prayer for specific performance is also of the same value, for the alternative prayer would not have been made in the complaint if one was more valuable than the other.[Cruz v. Tan (1950)] - Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. [Lapitan v. Scandia (1968)] - Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation. [Russel v. Vestil (1999)] - An action for expropriation is incapable of pecuniary estimation. [Bardillon v. Masili (2003)]  Title to, or possession of, real property (or any interest therein) where the property‘s assessed

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value exceeds P20K or P50K (for civil actions in Metro Manila); Exception: Forcible entry into and unlawful detainer of lands/buildings  Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila); - Maritime and admiralty cases involve trade and transactions in the sea. Maritime jurisdiction includes maritime tort. [Negre v. Cabahug (1966)]  Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila);  Marriage contract and marital relations;

b. General Original Jurisdiction  All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions;  Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations;  All other cases where the demand (exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila. - The exclusion of the term ―damages of whatever kind‖ in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.[Admin Circ. 0994] - Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant‘s alleged tortious acts. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. [Iniego v. Purganan (2006)]

c. Original Jurisdiction [Sec. 21, BP 129]  Certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; - CONCURRENT jurisdiction with SC and CA  Actions affecting ambassadors and other public ministers and consuls. - CONCURRENT jurisdiction with SC

d. Exclusive Appellate Jurisdiction [Sec. 22, BP 129] All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions. Metropolitan, Municipal and Municipal Circuit Trial Courts

6. Family Courts a. Exclusive Original Jurisdiction  Petitions for guardianship, custody of children, habeas corpus in relation to the latter;  Petitions for adoption of children and revocation thereof;  Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;  Petitions for support and/ or acknowledgement;  Summary judicial proceedings brought under the Family Code;  Petitions for declaration of status of children as abandoned, dependent or neglected children, for voluntary or involuntary commitment of children, and for suspension, termination or restoration of parental authority under PD 603, EO 56 s. 1986 and other related laws;  Cases for domestic violence against women and children, as defined therein but which do not constitute criminal offenses subject to criminal prosecution and penalties.

7. Metropolitan Trial Courts/Municipal Trial Courts a. Exclusive Original Jurisdiction [Sec. 33, BP 129]  Civil actions and probate proceedings (testate and intestate), including the grant of provisional remedies, where the value of the personal property, estate or amount of the demand does not exceed P300K or P400K (in Metro Manila) (value excludes of interest, damages of whatever kind, attorney‘s fees, litigation expenses, and costs); - Interest, damages of whatever kind, attorney's fees, litigation expenses and costs shall be included in the determination of the filing fees. - If there are several claims or causes of actions between the same/different parties in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, WON the causes of action arose out of the same/different transactions.  Forcible entry and unlawful detainer - If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without

REMEDIAL LAW REVIEWER deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. - That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. [Heirs of B. Hernandez v. Vergara (2006)]  All civil actions that involve title to, or possession of, real property (or any interest therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). - Value excludes interest, damages of whatever kind, attorney‘s fees, litigation expenses and costs - If land is not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots.  All civil cases subject to summary procedure.

b. Delegated Jurisdiction in Cadastral and Land Registration Cases [Sec. 34, BP 129]  Lots where there is no controversy/ opposition; or  Contested lots the value of which does not exceed P100K. - The value is to be ascertained: o By the claimant‘s affidavit; o By agreement of the respective claimants, if there are more than one; o From the corresponding tax declaration of the real property. - MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.

8. Shariah Courts a. Original Jurisdiction (Article 143, CMPL)  All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws;  All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property;  Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;  All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and  All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all

other auxiliary writs and processes in aid of its appellate jurisdiction.

b. Concurrent Jurisdiction with Civil Courts  Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum;  All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and  All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims Shari‘a Circuit Courts are courts where Muslims can file cases involving the following:  Offenses defined and punished under PD 1083  Disputes relating to : - Marriage - Divorce - betrothal or breach of contract to marry - customary dower (mahr) - disposition and distribution of property upon divorce - maintenance and support and consolatory gifts (mut‘a) - restitution of marital right - Disputes relative to communal properties NOTE: The Shari‘a District Court or the Shari‘a Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties.

F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation [A.M. No. 08-8-7-SC, the Rule of Procedure for Small Claims Cases effective October 1, 2008]

1. Definition Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants [Rationale of Proposed Rule].

2. Purpose The purpose of small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts [Riano].

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REMEDIAL LAW REVIEWER 3. Scope

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This rule governs the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs. [Sec. 2, Scope]

4. Applicability The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are:  purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and  the civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure. These claims or demands may be:  For money owed under any of the following; - Contract of Lease; - Contract of Loan; - Contract of Services; - Contract of Sale; or - Contract of Mortgage;  For damages arising from any of the following; - Fault or negligence; - Quasi-contract; or - Contract;  The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991. [Sec. 4, Applicability]

5. Prohibited Pleadings The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule:  Motion to dismiss the compliant except on the ground of lack of jurisdiction;  Motion for a bill of particulars;  Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;  Petition for relief from judgment;  Motion for extension of time to file pleadings, affidavits, or any other paper;  Memoranda;  Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;  Motion to declare the defendant in default;  Dilatory motions for postponement;  Reply;  Third-party complaints; and  Interventions. [Sec. 14, Prohibited pleadings and motions]

G. Totality Rule Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transaction [Riano citing Pantranco North Express v Standard Insurance (2005)]

CIVIL PROCEDURE

I. ACTIONS  Actions, in general: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos vs. Vda. De Caparas, (1959)] Action vs Cause of action (Asked in the 1999 Bar Exam) Cause of action  A cause of action is the basis of the action filed [Rule 2, Sec.1]  Fact or combination of facts which affords a party a right to judicial interference in his behalf. [Into vs. Valle (2005)]

Action Ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong

1. Meaning of ordinary civil actions An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

2. Meaning of special civil actions A special civil action is one that is subject to the specific rules prescribed for a special civil action; it is also governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

3. Meaning of criminal actions A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. [Rule 1, Sec. 3(b)]

4. Civil actions versus special proceedings A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Rule 1, Sec. 3(a) par 1] A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1, Sec. 3 (c)]

REMEDIAL LAW REVIEWER Distinctions between Civil Actions and Special Proceedings (Asked in the 1998 Bar Exam) Action Special Proceeding As to parties Involves 2 or more Involves at parties least 1 party or 2 or more parties in proper cases As to cause Involves a right May involve a of action and a violation of right, but there such right by the need not be a defendant which violation of this causes some right damage/prejudice upon the plaintiff As to Requires the Requires no formalities application of such legal remedies in formalities, as accordance with it the prescribed may be granted rules upon application As to governing rules As to appeal from an interlocutory order

Ordinary rules of procedure

Special rules of procedure

Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits

Can be immediately and directly appealed to the appellate court

5. Personal actions and real actions  Real Actions: Actions affecting title to or possession of real property, or interest therein. [Rule 4, Sec. 1 par 1]  Personal Actions: All other actions are personal actions. [Rule 4, Sec.2] Importance of Distinction: for purposes of determining the venue of the action (Riano)  Real actions shall be commenced and tried n the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec.1]  Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff. [Rule 4, Sec.2] NOTE: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that the action must deal with real property. It is important that the

matter in litigation must also involve any of the following issues: title to, ownership, possession, paritition, foreclosure or mortgage or any interest in real property. (Riano) Real action

Personal action Personal property is sought to be recovered or damages for breach of Contract or the enforcement of a contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides, at the plaintiff‘s option

Ownership or possession of real property is involved

Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated

Mixed action Both real and personal properties are involved

Founded both

on

The rules on venue of real actions govern

6. Local and transitory actions Local action  One that could be instituted in one specific place [2011 Reviewer]  Venue depends upon the location of the property involved in the litigation (Riano)

Transitory action  One that could be prosecuted in any one of several places [2011 Reviewer]  Its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff (Riano)

7. Actions in rem, in personam and quasi in rem [Riano citing Domagas v. Jensen, (2005) and Biaco v. Philippine Countryside Rural Bank, (2007)] Action in rem Directed against the thing itself Jurisdiction over the person of the defendant is NOT required

Action in personam Directed against particular persons Jurisdiction over the person of the defendant is required

Action quasi in rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired

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REMEDIAL LAW REVIEWER Action in rem

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A proceeding to determine the state/condition of a thing

Judgment is binding on the whole world

Ex: Accion reivindicatoria; annulment of marriage; naturalization proceedings

Action in personam An action to impose responsibility or liability upon a person directly

Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance; action to recover money or property (real or personal)

Action quasi in rem  A proceeding to subject the interest of a named defendant over a particular property to an obligation/lie n burdening it  Deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interest of all possible claimants [Domagas v. Jensen (2005)] Judgment is binding upon particular persons Ex: Action for partition; action to foreclose real estate mortgage

The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)] The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]

II. CAUSE OF ACTION 1. Meaning of cause of action A cause of action is the act or omission by which a party violates a right of another. [Rule 2, Sec.2] Elements of a Cause of Action [cited in Riano]  Plaintiff‘s legal right;  Defendant‘s correlative obligation to respect plaintiff‘s right;  Defendant‘s act/omission in violation of plaintiff‘s right [Ma-ao Sugar Central v. Barrios (1947)] (Asked in the 1997 Bar Exam). Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1] A cause of action stems from the sources of obligations under Art. 1156, CC - Law, Contract, Quasi-contract, Acts and omissions punishable by law and Quasi-delict. [Sagrada Orden etc v. National Coconut Corporation (1952)]

2. Right of action versus cause of action [Regalado] Right of action The remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Right to sue as a consequence of the delict Whether such acts give him right of action determined by substantive law

Cause of action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff The delict or wrong Determined by averments in pleading regarding acts committed by defendant

the the the the

NOTE: There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA (1985)]

3. Failure to state a cause of action  There is a failure to state a cause of action if the pleading asserting the claim states no cause of action. This is a ground for a motion to dismiss. [Rule 16, Sec.1(g)]  It is submitted that the failure to state a cause of action dos not mean that the plaintiff has ―no cause of action.‖ It only means that the plaintiff‘s allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. (Riano)  There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. (Riano)

REMEDIAL LAW REVIEWER  A failure to state a cause of action is not the same as an absence or a lack of cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one‘s stated cause of action. (Riano)

4. Test of the sufficiency of a cause of action Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. de Leo (2005)]

5. Splitting a single cause of action and its effects Definition: The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4]

only 1 cause of action arises. [Joseph v. Bautista (1989)] For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)]

6. Joinder and misjoinder of causes of action Joinder of Cause of Action: It is the assertion of as many causes of action as a party may have against another in one pleading alone. It is also the process of uniting 2 or more demands or rights of action in one action. [Riano citing Rule 2, Sec. 5 and CJS] Purpose: promote the policy on avoiding multiplicity of suits.

The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. (Regalado)

The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovir vs. Sarte, 36 Phil. 550]

Effects of splitting a cause of action: [Taken from 2011 Reviewer]  The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. [Rule 2, Sec.4]  Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or  A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata.  A MTD under Rule 16 Sec. 1(e) or (f) may be filed in order that the complaint may be dismissed.

Requisites [Rule 2, Sec. 5]:  The party joining the causes of action must comply with the rules on joinder of parties;  The joinder shall not include special civil actions or actions governed by special rules;  Where causes of action are between the same parties but pertain to different venues/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTC‘s jurisdiction and the venue lies therein;  TOTALITY RULE - Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

Basis: A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] Purpose [City of Bacolod v. SM Brewery (1969)]  To prevent repeated litigation between the same parties in regard to the same subject or controversy;  To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause);  To avoid the costs and expenses incident to numerous suits. A single act/omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one delict/wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. If only 1 injury resulted from several wrongful acts,

Misjoinder of causes of action [Rule 2, Sec. 6]  Misjoinder of causes of action is not a ground for dismissal of an action.  A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately.  There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action (Regalado).

III. PARTIES TO CIVIL ACTIONS Requirements for a person to be a party to a civil action:  HE MUST BE EITHER [Rule 1, Sec.3]: - A natural person; - A juridical person; o The State and its political subdivisions; o Other corporations, institutions and entities for public interest or purpose, created by law; and

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o Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member [Art. 44, CC] - An entity authorized by law. o The estate of a deceased person [Limjoco vs. Intestate Estate of Fragante (1948)]; o A political party incorporated under Act 1459 [now BP 68 (Corporation Code)]; o A corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners. [Riano citing Sec. 21, BP68, The Corporation Code of the Philippines] o A contract of partnership having a capital of P3,000.00 or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons. [Riano citing Art. 1772 in rel. to Art. 1768, Civil Code] o A registered labor union [Sec. 243, PD 442 (Labor Code)], with respect to its property. o A legitimate labor organization may sue and be sued in its registered name. [Riano citing Art. 2429(e), Labor Code] o The Roman Catholic Church has legal capacity to sue. As to its properties, the archbishop or diocese to which they belong may be a party. [Barlin v. Ramirez (1906); Riano citing Barlin v. Ramirez and Versoza v. Fernandez(49 Phil. 627)]. o A dissolved corporation may prosecute and defend suits by or gainst it provided that the suits (i) occur within three years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs. [Riano citing Sec. 122, Corporation Code]  HE MUST HAVE THE LEGAL CAPACITY TO SUE;  HE MUST BE THE REAL PARTY IN INTEREST. [Berman v. Cheng (2005)] - Only natural or juridical persons or entities authorized by law may be parties in a civil case. - A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. - There is no law authorizing sole proprietorship to file a suit. - A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. [Rimbunan v. Oriental (2005)] - An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction. - Thus, the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts.

Note: A foreign corporation may be party to an action in Philippine courts:  If licensed to engage in business in the Philippines, it may sue or be sued in our courts;  If not licensed, it cannot sue, but it may be sued in our courts;  If not engaged in business in the Philippines, it may sue in courts on a single isolated transaction, but it cannot be sued in our courts on such transaction. Lack of legal capacity to sue The plaintiff‘s general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications It can be a ground for a MTD [Rule 16 (1) (d)]

Lack of legal personality to sue The plaintiff is not the real party in interest

It can be used as ground for a MTD based on the failure of complaint to state a cause of action. [Rule 16 (1) (g)]

Parties to a civil action  PLAINTIFF – One having interest in the matter of the action or in obtaining the relief demanded; the claiming party or the original claiming party and is the one who files the complaint [Riano]; does not exclusively apply to the original plaintiff [Rinao]; may refer to the claiming party, the counter-claimant, the crossclaimant, or the third (fourth, etc.)-party plaintiff [Rule 3, Sec.1]  DEFENDANT – One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term may also include [Rule 3, Sec 1): - UNWILLING CO-PLAINTIFF – A party who should be joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Rule 3, Sec. 10] - The original plaintiff becoming a defendant to the original defendant‘s counterclaim; also refers to the corss-defendant, or the third (fourth, etc.)-party defendant. [Rule 3, Sec 1]

1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants  Real party in interest [Rule 3, Sec.2] - The party who stands to be benefited/injured by the judgment in the suit; - The party entitled to the avails of the suit. Rules: o Every action must be prosecuted or defended in the name of the real party in interest. [Rule 3, Sec.2]

REMEDIAL LAW REVIEWER o The party‘s interest must be direct, substantial and material [Sumalo v. Litton (2006)]. o Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4] o A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Rule 3, Sec. 5] o Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)] Note: This doctrine is inconsistent with Rule 3, Sec. 1 which provides that only natural or juridical persons may be parties in a civil action. o If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3, Sec. 18]  Indispensable parties - An indispensable party is a real party-ininterest without whom no final determination can be had of an action. [Rule 3, Sec.7] - A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. (Riano) - The joinder of a party becomes compulsory when the one involved is an indispensable party. [Riano citing Rule 3, Sec.7] - A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. (Riano)  Representative as parties [Rule 3, Sec. 3] - Those acting in fiduciary capacity, such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. - The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. - An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. Exception: If the contract involves things belonging to the principal. [Art. 1883, CC]  Necessary Party [Rule 3, Sec. 8] - One who is not indispensable but ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action - Indispensable parties v. Necessary parties [taken from 2011 Reviewer and Riano]

Indispensable parties [Rule 3, Sec. 7] Must be joined under any and all conditions, his presence being a sine qua non for the exercise of judicial power No valid judgment if indispensable party is not joined.

They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.

Necessary parties [Rule 3, Sec. 8] Should be joined whenever possible; the action can proceed even in their absence because their interest is separable from that of the indispensable party The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them.

- Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader is under obligation to: (i) set forth the name of the necessary party, if known, and (ii) state the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1] - The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3]  Indigent Party [Rule 3, Sec. 21] - INDIGENT – One who has no money or property sufficient and available for food, shelter and basic necessities. - While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered. o If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. - The authority to litigate as an indigent shall include an exemption from: o Payment of docket fees and other lawful fees; o Payment of TSN. - The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides.  Alternative Defendants [Rule 3, Sec. 13] - Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative,

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although a right to relief against one may be inconsistent with a right to relief against the other.

2. Compulsory and permissive joinder of parties  Compulsory joinder of indispensable parties [Rule 3, Sec 7] - Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants  Permissive joinder [Rule 3, Sec. 6] - Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits. Requisites (Regalado): - Right to relief arises out of the same transaction or series of transactions; Note: SERIES OF TRANSACTIONS – Transactions connected with the same subject matter of the suit. - There is a question of law or fact common to all the plaintiffs or defendants; - Such joinder is not otherwise proscribed by the rules on jurisdiction and venue.

3. Misjoinder parties

and non-joinder

of

 A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action. (Riano)  Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Rule 3, Sec. 11]  Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Rule 3, Sec.11]  Any claim against a misjoined party may be severed and proceeded with separately. [Rule 3, Sec. 11]  Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)].  Objections to defects in parties should be made at the earliest opportunity.  The moment such defect becomes apparent, a motion to strike the names of the parties must be made.  Objections to misjoinder cannot be raised for the first time on appeal [Regalado citing Garcia v Chua].  The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder or parties. The rule presupposes that the original inclusion

had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. [Riano citing Lim Tan Hua v. Ramolete(1975)]

4. Class suit  Requisites [Rule 3, Sec. 12] - Subject matter of the controversy is one of common/general interest to many persons; - The persons are so numerous that it is impracticable to join them all as parties (i.e. impracticable to bring them all before the court); - Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; - The representative sues/defends for the benefit of all.  Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12]  If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)].  A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado]  There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)]  A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)] Class Suit There is a single cause of action pertaining to numerous persons.

Permissive Joinder of Parties There are multiple causes of action separately belonging to several persons.

CLASS SUIT AND DERIVATIVE SUIT, COMPARED (Asked in the 2005 Bar Examination) CLASS SUIT DERIVATIVE SUIT

REMEDIAL LAW REVIEWER When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. [Rule 3, Sec. 12]

An action brought by minority shareholders in the name of the corporation to redress wrongs committed against it, for which the directors refuse to sue. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority. In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim vs. Lim Yu (2001))

5. Suits against entities juridical personality

without

Requisites [Rule 3, Sec.15]  There are 2 or more persons not organized as a juridical entity;  They enter into a transaction;  A wrong is committed against a 3rd person in the course of such transaction. Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15] The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Rule 14, Sec. 8]

6. Effect of death of party litigant [this section is taken from the 2011 Reviewer] Substitution of parties  Death of a party, where the claim is not extinguished by the death of the party (e.g. cases involving property and property rights [Bonilla v Barcena (1976)]); [Rule 3, Sec. 16] (Asked in the 1998 and 1999 Bar Exams) - Counsel‘s duty: o Inform court within 30 days after such death of the fact thereof; o Give the name and address of the legal representatives. Note: Failure to comply with this duty is a ground for disciplinary action. - The heirs may be substituted for the deceased without requiring the appointment of an executor or administrator.

- The court may appoint a guardian ad litem for the minor heirs. - The court shall order the legal representative(s) to appear and be substituted within 30 days from notice. - If no legal representative is named or if the one so name shall fail to appear within the specified period, the court may order the opposing party to procure the appointment of an executor or administrator for the estate. - The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party [Ferreria v Vda de Gonzales (1986].  Death or separation of a party who is a public officer [Rule 3, Sec. 17] Requisites: - Public officer is a party to an action in his official capacity; - During the pendency of the action, he either dies/resigns or otherwise ceases to hold office; - It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, o that there is a substantial need to continue/maintain the action and o The successor adopts/continues (or threatens to do so) his predecessor‘s action - The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard. Action on contractual money claims [Rule 3, Sec. 20]  Requisites: - The action must primarily be for recovery of money/debt or interest thereon; - The claim arose from express/implied contract; - Defendant dies before the entry of final judgment in the court in which the action was pending.  The defendant‘s death will not result in the dismissal of the action.  The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment (Asked in the 2000 Bar Exam)  However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent‘s estate without need of proving the claim. Transfer of interest during the pendency of the action [Rule 3, Sec. 19]  General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him.

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 Exception: When the substitution by or joinder of the transferee is ordered by court. - The case will be dismissed if the plaintiff‘s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

IV. VENUE Venue is the place, or the geographical are where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General, (1911)]

1. Venue versus jurisdiction [Riano] Distinctions between Venue and Jurisdiction (Asked in the 2006 and 2008 Bar Exams) Venue Jurisdiction Place where the action is Power of the court to instituted hear and decide a case May be waived Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived Procedural Substantive May be changed by the Is fixed by law and written agreement of the cannot be the subject of parties the agreement of the parties Establishes a relation Establishes a relation between plaintiff and between the court and defendant, or petitioner the subject matter and respondent Not a ground for a motu Lack of jurisdiction over propio dismissal (except the subject matter is a in cases of summary ground for a motu procedure; Rule 4, Rule proprio dismissal. on Summary Procedure)

2. Venue of real actions  Shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. [Rule 4, Sec. 1, par 1]  Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec. 1 par 2]  If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff‘s option).  If the case involves 2 properties located in 2 different places: - If the properties are the object of the same transaction, file it in any of the 2 places; - If they are the objects of 2 distinct transactions, separate actions should be filed in each place unless properly joined.

3. Venue of personal actions At the plaintiff‘s election: [Rule 4, Sec. 2]  Where the plaintiff or any of the principal plaintiffs resides;  Where the defendant or any of the principal defendants resides;  In case of a non-resident-defendant, where he may be found.

4. Venue of actions against nonresidents [Rule 5, Sec. 3] [also taken from 2011 Reviewer]  Non-resident found in the Philippines – - For personal actions – Where the plaintiff resides; - For real actions – Where the property is located.  Non-resident not found in the Philippines – An action may be filed only when the case involves: - Personal status of plaintiff - Where plaintiff resides; - Any property of said defendant located in the Phil. - Where the property (or any portion thereof) is situated/found.

5. When the rules on venue do not apply [Rule 4, Sec. 4]  If a specific rule/law provides otherwise (e.g. action for damages arising from libel);  Stipulations as to Venue is permitted if the parties have validly agreed - in writing - before the filing of the action - on the exclusive venue In the absence of qualifying restrictive words (e.g. ―only/solely/exclusively in such court‖), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)] The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. [Riano citing Spouse Lantin v. Lantion, (2006)]

6. Effects of stipulations on venue  To be binding, the parties must have agreed on the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado]  In the absence of qualifying restrictive words (e.g. ―only/solely/exclusively in such court‖), venue stipulation is merely permissive; that is,

REMEDIAL LAW REVIEWER the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)]  The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado, citing Hoechst Philippines v Torres (1978)]. Other rules on venue  IMPROPER VENUE: The Court may not motu propio dismiss an action on the ground of improper venue. [Dacoycoy v. IAC (1991)] - Exception: In summary procedures.  CHANGE OF VENUE: The SC has the power to change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, Consti]  WAIVER OF VENUE: - Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong (1993)] - Means of waiving venue: o Where parties validly agreed in writing before the filing of the action on the exclusive venue thereof [Rule 4, Sec 4 (b)]; and o Failure to raise improper venue as affirmative defense or in motion to dismiss

Always filed judgment

before

May be filed even after judgment

1. Kinds of Pleadings Pleadings allowed [RULE 6, SEC. 2] 1) Complaint; 2) Answer; 3) Counterclaim; 4) Cross-claim; 5) 3rd-party Complaint, 6) Complaint-in-intervention; 7) Reply;

a. Complaint [Rule 6, Sec. 3] Definition The pleading alleging the plaintiff‘s cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiff‘s cause/s of action, not evidentiary facts or legal conclusions. It shall contain:  in a methodical and logical form  a plain, concise and direct statement of ultimate facts on which the plaintiff relies for his claim,  omitting statement of mere evidentiary facts. [Rule 8, Sec 1] Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. It should inform the defendant of all material facts on which the plaintiff relies to support his demand.

V. PLEADINGS 1. Kinds of Pleadings 2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure 3. Parts of a pleading 4. Allegations in a pleading 5. Effect of failure to plead 6. Default 7. Filing and Service of pleadings 8. Amendment Definition Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1] Pleading Purpose: To submit a claim/defense for appropriate judgment May be initiatory

court.

Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in

It should state the theory of a cause of action which forms the bases of plaintiff‘s claim of liability. [Tantuico v. Republic (1991)] ULTIMATE FACTS – Essential facts constituting the plaintiff‘s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola (1966)] Not ultimate facts:  Evidentiary or immaterial facts;  Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated;  Conclusions of law alleged in the complaint are not binding on the court.  The details of probative matter or particulars of evidence, statements of law, inferences and arguments. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: WON upon the averment of facts, a valid judgment may be properly rendered [Pamintan v. Costales (1914)].

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b. Answer [Rule 6, Sec. 4] Definition The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim. Two kinds of defenses that may be set forth in the answer [Rule 6, Sec 5]  Negative Defenses – Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. - Negative Pregnant - Denial pregnant with an admission. It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines (1993)]  Affirmative Defenses – Allegations of new matters which, while hypothetically admitting the material allegations in the claimant‘s pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance.

c. Counterclaims [Rule 6, Sec. 6] Definition Any claim which a defending party may have against an opposing party.  A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the answer, it is not part of the answer.  Upon its filing, the same proceedings are had as in the original complaint.  For this reason, it must be answered 10 days from service [Rule 11, Sec 4] (Asked in the 2002 and 2008 Bar Exams). How to raise counterclaims  Included in the answer: A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. [Rule 11, Sec. 8]  Exception: Pleadings may be amended under Rule 11, Sec. 10: - By leave of court; - Before judgment; - On the grounds of: o Oversight; o Inadvertence; o Excusable neglect; o When justice requires. After the answer [Rule 11, Sec. 9]  Counterclaims/cross-claims arising after the answer,  with the court‘s permission,  may be presented as a counterclaim/cross-claim by supplemental pleading before judgment. Rules on counterclaims

 In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7]  In the case of Agustin v. Bacalan, if a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived.  But in Calo v. Ajax, the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. Kinds of counterclaims Compulsory counterclaim One which arises out of or is necessarily connected with the transaction or occurrence -that is the subject matter of the opposing party's claim. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Barred if not set up in the action. Need not be answered; no default.

Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Not barred even if not set up in the action. Must be answered, otherwise, the defendant can be declared in default.

 A permissive counterclaim requires the payment of docket fees. [Sun Insurance v. Asuncion (1989)]  A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala (1970)]

i. Compulsory counterclaim Requisites of a compulsory counterclaim [Rule 6, Sec 7] (Asked in the 1998 bar exam)  It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim;  It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction;  It must be within the court‘s jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)] General rule: A compulsory counterclaim not set up in the answer is deemed barred. Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]

REMEDIAL LAW REVIEWER Note:  The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies.  In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy.  If he decides to file a MTD, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer.  If any of the grounds to dismiss under Rule 17, Sec. 3 arise, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD.  Instead, he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)]

ii. Permissive counterclaim [NOTE: Please also refer to table comparing compulsory and permissive counterclaims] Test to determine whether a counterclaim is compulsory or permissive LOGICAL RELATIONSHIP TEST: Where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA (1992)]

iii. Effect on the Counterclaim when the complaint is dismissed Under Section 3, Rule 17, dismissal of action due to plaintiff‘s fault shall be without prejudice to the defendant‘s right to prosecute his counterclaim in the same/separate action.

d. Cross-claims [Rule 6, Sec. 8] Requisites for cross-claim  A claim by one party against a co-party;  It must arise out of the subject matter of the complaint or of the counterclaim;  The cross-claimant is prejudiced by the claim against him by the opposing party. General rule: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] Exceptions:  When it is outside the court‘s jurisdiction;  If the court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the

adjudication of said cross-claim. In this case, the cross-claim is considered permissive. The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. [Torres v. CA (1973)] Cross Claim, Counterclaim and Third Party Complaint (Asked in the 1997 and 1999 Bar Exams) Cross-claim Counterclaim 3rd Party complaint Against a co- Against an Against a party opposing party person not a party to the action Must arise May arise out of or Must be in out of the be necessarily respect of the transaction connected with opponent‘s that is the the transaction or (plaintiff‘s) subject the subject matter claim matter of the of the opposing original party‘s claim action or of a (compulsory counterclaim counterclaim), or therein it may not (permissive counterclaim) Counter-counterclaims and counter-cross-claims [Rule 6, Sec. 9]  Counter-Counterclaim - A claim asserted against an original counter-claimant.  Counter-Cross-claim - A claim filed against an original cross-claimant.

e. Third (fourth, etc.) party complaints [Rule 6, Sec. 11] [NOTE: See also table in immediately preceding subsection] Definition: It is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. There could also be a 4th/etc.-party complaint with the same purpose and function. 3rd-party complaint

Complaint in intervention

Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to the action

Same

3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the

Counterclaim Must be within the jurisdiction of the court trying the main case Need not

Initiative is with a nonparty who seeks to join the action

99

REMEDIAL LAW REVIEWER recovery sought by the opposing party

100

Cannot exceed amount stated in original complaint

the the

diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint

Tests to determine whether the 3rd-party complaint is in respect of plaintiff's claim [Capayas v. CFI (1946)]  WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff‘s claim;  WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff‘s claim against the original defendant;  WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff‘s claim. NOTE:  Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15.  Summons on 3rd (4th/etc.) – party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party.  Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rdparty complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety (1968)]  A 3rd-party complaint is not proper in an action for declaratory relief.

f. Complaint-in-intervention Pleadings in intervention [Rule 19, Sec. 3]  COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties.  ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. Definition INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19] When allowed Intervention shall be allowed when a person has:  a legal interest in the matter in litigation;  or in the success of any of the parties;  or an interest against the parties; and

 when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or of an officer thereof. Not an independent action Intervention is not an independent action, but is ancillary and supplemental to an existing litigation. [Republic v. Sandiganbayan]  It is neither compulsory nor mandatory but only optional and permissive. [Mabayo v. CA (2002)]  The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA (1999)]  It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)] Requisites for valid intervention  There must be a motion for intervention filed before rendition of judgment by the trial court.  Movant must show in his motion that he has a: - legal interest in (1) the matter of litigation, (2) the success of either of the parties in the action or (3) against both parties. - that the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof - that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor‘s rights may not be fully protected in a separate proceeding. Meaning of legal interest The legal interest must be one that is actual and material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. Remedy for denial of motion for intervention  The movant may file a motion for reconsideration since the denial of a motion for intervention is an interlocutory order.  Alleging grave abuse of discretion, movant can also file a certiorari case.

g. Reply [Rule 6, Sec. 10] Definition: The plaintiff‘s response to the defendant's answer,  the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and  thereby join or make issue as to such new matters.

REMEDIAL LAW REVIEWER Effect of failure to reply (Asked in the 2000 bar exam) General rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. Exception: Reply is required:  Where the answer is based on an actionable document. [Rule 8, Sec. 8]  Where the answer alleges the defense of usury. [Rule 8, Sec. 11]

2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure Under the Revised Rules on Summary Procedure the only pleadings allowed to be filed are:  complaints;  compulsory counterclaims and cross-claims pleaded in the answer; and  the answers thereto. [Sec. 3] Prohibited pleadings, motions or petitions:  Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings;  Motion for a bill of particulars;  Motion for new trial, or for reconsideration of a judgment, or for opening of trial;  Petition for relief from judgment;  Motion for extension of time to file pleadings, affidavits or any other paper;  Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;  Motion to declare the defendant in default;  Dilatory motions for postponement;  Reply;  Third party complaints; and  Interventions. [Sec. 19] Forms used under the Rule of Procedure under Small Claims Cases:  Instead of filing complaint, a Statement of Claim using Form 1-SCC shall be filed [Sec. 5]  Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10]  Defendant may file counterclaim if he possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiff‘s claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim. The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence,

provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. NOTE: Courts decision shall be contained in Form 13SCC Prohibited Pleadings and Motions:  Motion to dismiss the complaint except on the ground of lack of jurisdiction;  Motion for a bill of particulars;  Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;  Petition for relief from judgment;  Motion for extension of time to file pleadings, affidavits, or any other paper;  Memoranda;  Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;  Motion to declare the defendant in default;  Dilatory motions for postponement;  Reply;  Third-party complaints; and  Interventions.

3. Parts of a pleading [Rule 7, Secs. 1 to 3] a. Caption  Caption - Court‘s name, action‘s title (i.e. parties‘ names) and docket number.  Body - Pleading‘s designation, allegations of party's claims/defenses, relief prayed for and pleading‘s date. - Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances - Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc. - Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable. - Every pleading shall be dated.

b. Signature and address Pleading must be signed by the party/counsel. State address (not PO box) in either case.

c. Verification and certification against forum shopping [Rule 7, Sec 4] Verification Pleadings need not be verified, unless otherwise provided by the law/rules. How a Pleading is Verified [Rule 7, Sec 4] By an affidavit:  That the affiant read the pleading;  That the allegations therein are true and correct of his personal knowledge or based on authentic documents.

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Certification of Non-Forum Shopping (CNFS) [Rule 7, Sec. 5] Definition: The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v. Solidapsi (2002)] (Asked in the 2006 Bar Exam) Test to Determine WON there is Forum Shopping (ASKED IN THE 2002 BAR EXAM) - WON in the 2 or more cases pending, there is identity of:  Parties;  Rights or causes of action;  Relief sought. The CNFS is to be executed by the petitioner, not by the counsel. CNFS is required only for complaints or initiatory pleadings (e.g. permissive counterclaim, cross-claim etc.). CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla (1998)] Failure to comply is not curable by mere amendment of the pleading but shall be cause for the dismissal of the case, without prejudice and upon motion and after hearing, unless otherwise provided. Effect of Submission of False CNFS or NonSubmission of CNFS  Indirect contempt;  Administrative and criminal actions. Effect of Willful and Deliberate Forum Shopping (Asked in the 2006 and 2007 Bar Exams)  Ground for summary dismissal of the case with prejudice;  Direct contempt and administrative sanctions. - Pleadings as well as remedial laws should be liberally construed - in order that the litigant may have ample opportunity to prove their respective claims, and possible denial of substantial justice, due to technicalities, may be avoided. [Gerales v. CA (1993)] Requirements of a corporation executing the verification/certification of non-forum shopping Only individuals vested with authority by a valid board resolution may sign the certificate of nonforum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory‘s authority. [PAL v. FASAP (2006)]

d. Effect of the signature of counsel in a pleading

 Counsel‘s signature is a certification that: - He has read the pleading; - To the best of his knowledge, information and belief there is good ground to support it; - It is not interposed for delay.  An unsigned pleading produces no legal effect.  However, the court may allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay.

4. Allegations in a pleading a. Manner of making allegations In general [RULE 8, SEC. 1]  In a methodical and logical form.  Plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense.  Omit evidentiary facts.  If defense relied on is based on law, cite the provisions and their applicability. Condition precedent - a general averment of the performance or occurrence of all conditions precedent shall be sufficient [RULE 8, SEC. 3] Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [RULE 8, SEC. 5] Facts that may be Averred Generally  Conditions precedent; but there must still be an allegation that the specific condition precedent has been complied with, otherwise it will be dismissed for lack of cause of action; [Rule 8, Sec 3]  Capacity to sue or be sued;  Capacity to sue or be sued in a representative capacity; [Rule 8, Sec 4]  Legal existence of an organization; - A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4]  Malice/intent/knowledge or other condition of the mind; [Rule 8, sec 5]  Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec 6]  Official documents/acts. [Rule 8, Sec 9] Facts that must be Averred Particularly Circumstances showing fraud/mistake averments of fraud/mistake [Rule 8, Sec 5]

in

all

REMEDIAL LAW REVIEWER b. Pleading an actionable document Actionable document A document which is really the basis of the cause of action (or defense), and not merely evidentiary thereof. [Rule 8, Sec. 7] Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts. [Rule 8, Sec. 8] Exception to the requirement of an oath: when the adverse party does not appear to be a party to the instrument. [Donato v. CA (1993)] How an action or defense may be based on a document:  By copying a substantial portion of the document into the pleading;  By annexing /incorporating the document into the pleading;  By both copying and annexing document into the pleading.

c. Specific denials Three Ways of Making a Specific Denial  SPECIFIC ABSOLUTE DENIAL – by specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial.  PARTIAL SPECIFIC DENIAL – part admission and part denial;  DISAVOWAL OF KNOWLEDGE – by an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. This does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. NOTE: General rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] Exceptions:  Allegations as to the amount of unliquidated damages;  Allegations immaterial to the cause of action;  Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12]  Conclusion of law. Kinds of denial (Asked in the 2004 Bar Exam)  SPECIFIC DENIAL – Specifies each material allegation of fact the truth of which he does not admit, and sets forth the substance of the matters upon which he relies to support his denial. [Rule 8, Sec. 10]

 DENIAL WITH QUALIFICATION - Specifies so much of it as is true and material, and deny the remainder.  SPECIFIC DENIAL FOR LACK OF KNOWLEDGE/INFORMATION sufficient to form as belief as to the truth of a material averment made in the complaint.  SPECIFIC DENIAL UNDER OATH - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8] Disciplinary Action on Counsel Regarding Pleadings [Rule 7, Sec. 3]  Deliberately filing an unsigned pleading;  Deliberately signing a pleading in violation of the Rules;  Alleging scandalous/Indecent matter in the pleading;  Failing to promptly report a change of his address. Effect of failure to make specific denials  General rule: Defenses and objections not pleaded either in a MTD or in the answer, are deemed waived. [Rule 9, Sec. 1]  Exceptions: - Lack of jurisdiction over the subject matter; - Litis pendentia; - Res judicata; - Prescription When a specific denial requires an oath - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8]

5. Effect of failure to plead a. Failure to plead defenses and objections  General rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived. (Omnibus Motion Rule) [Rule 9]  Exceptions: - Lack of jurisdiction over the subject matter; - Litis pendentia between same parties for the same cause - Res judicata - Action barred by statute of limitations.

b. Failure to plead a counterclaim and cross-claim

compulsory

Compulsory counterclaim  General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2]  Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10] Cross-claim A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]

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6. Default [Rule 9, Sec. 3]

104

Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence (Asked in the 2000 and 2001 Bar Exams) Order of default Issued by the court on plaintiff‘s motion, for failure of the defendant to file his responsive pleading seasonably Interlocutory -Not appealable

Judgment by default Rendered by the court following a default order or after it received ex parte plaintiff‘s evidence Final – Appealable

a. When a declaration of default is proper  Court validly acquired jurisdiction over the defendant‘s person, either by service of summons or voluntary appearance;  Defendant fails to answer within the time allowed therefor;  Motion to declare the defendant in default;  Notice to the defendant by serving upon him a copy of such motion;  Proof of such failure to answer.

b. Effect of an order of default (Asked in the 1999 Bar Exam) [Rule 9, Sec 3(a)]  Party in default loses standing in court as a party litigant. His failure to answer operates as a waiver of right to take part in the trial, of being heard, and of presenting evidence in his favor. - If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint. - Hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default.  The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.  The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. - A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of nondefaulting defendants. [Cavili v. Florendo (1987)] - A party in default is entitled to notice of: o Motion to declare him in default; o Order declaring him in default; o Subsequent proceedings; o Service of final orders and judgments.

c. Relief from an order of default [Rule 9, Sec 3(b)]  Before judgment, a party declared in default may file a motion under oath to set aside the order of default upon proper showing that: - His failure to answer was due to fraud, accident, mistake or excusable negligence; and that - He has a meritorious defense.  In such case, the order of default may be set aside on terms and conditions as justice requires. Remedies of a party declared in default  Pleadings, as well as remedial laws, should be liberally construed in order that litigants may have ample opportunity to prove their respective claims, and possible denial of substantial justice. [Gerales v. CA (1993)]  Dulos v. CA (1990) MOTION TO SET At any time after the discovery ASIDE ORDER OF of default and before DEFAULT [RULE 9, judgment, defendant may file a SEC. 3(B)] motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud, accident mistake of law, and excusable negligence and that he has a meritorious defense MOTION FOR NEW  If the judgment has already TRIAL [RULE 37, been rendered when the SEC. 1(A)] defendant discovered the default, but before the same became final and executory.  It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15-day reglementary period for an appeal.  It is required that defendant file first a motion to lift order of default to regain his standing. [Tan v. CA (1997)] PETITION FOR If the defendant discovered the RELIEF FROM default after the judgment has ORDER, become final and executory JUDGMENT OR OTHER PROCEEDINGS [RULE 38, SEC. 1 AND 2] APPEAL FROM THE The defendant may also appeal RTC [RULE 41, from the judgment rendered SEC. 1] against him as contrary to the evidence or the law, even if he did not present a petition to set aside the order of default  An order of default is an interlocutory order which is not appealable. A judgment by default is a final disposition of the case and is












 

appealable. [MERALCO v. La Campana Food Products (1995)] A petition for certiorari under Rule 65, although not a substitute for an available or lost appeal, may be invoked while the orders of the lower court are issued without or in excess of jurisdiction. Judgment by default being appealable, appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. [Oriental Media v. CA (1995)] A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or an order of default. A meritorious defense is only one of the two conditions. The meritorious defense must concur with the satisfactory reason for the nonappearance of the defaulted party. If there is no such reason, the appropriate remedy is an ordinary appeal under Rule 41, Sec. 2. [Ramnani v. CA (1993)] The jurisdiction was properly acquired by the TC over the defendant‘s person; he was therefore properly declared in default for not having filed any answer. Despite his failure to file a motion to set aside the declaration of default, he has the right to appeal the default judgment. But in the appeal, only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence. [Boticano v. Chu (1987)]

was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for.

f. Actions where default are not allowed Cases where no defaults are allowed [Rule 9, Sec 3(e)]  Annulment of marriage; Declaration of nullity of marriage; Legal Separation; 1) Here, the court shall order the prosecuting attorney to investigate WON parties are colluding and, if there is no collusion, to intervene from the State to ensure that evidence is not fabricated.  Special civil actions of certiorari, prohibition and mandamus, where comment (instead of an answer) is required to be filed. Failure to appear at pre-trial Who fails to appear Plaintiff

Defendant

Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof

Default by defendant (Rule 9, Sec. 3)

d. Effect of a partial default [Rule 9, Sec 3(c)] If the pleading asserting a claim states a common cause of action against several defending parties, and some of the defending parties answer while the others fail, the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented. Exception: If the defense is personal to the one who answered; in which case, it will not benefit those who did not answer.

e. Extent of relief Extent of relief to be awarded The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages. Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default. Datu Samad Mangelen v. CA (1992): In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. On the other hand, in a judgment where an answer

Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

As in default (failure to appear by plaintiff) (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

Lesaca v. CA (1992): A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. Bayog v. Natino (1996): The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under

105

REMEDIAL LAW REVIEWER Sec. 19(a) thereof.

106

Malanyaon v. Sunga (1992): Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order.

Acquisition of jurisdiction

7. Filing and Service of pleadings Definition  FILING – The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2]  SERVICE – The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2] Papers Required to be Filed and Served [RULE 13, SEC. 4]  Pleading subsequent to the complaint;  Appearance;  Written Motion;  Notice;  Order;  Judgment;  Demand;  Offer of Judgment;  Resolution;  Similar papers.

a. Payment of docket fees As a rule, the court acquires jurisdiction over the case only upon payment of prescribed fees General rule: Without payment, case is considered not filed. Payment of docket fees is mandatory and jurisdictional. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris] Effect of Failure to Pay Docket Fees at Filing  Manchester v. CA (1987) [Old Rule]: AUTOMATIC DISMISSAL. Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction  Modification by Sun Insurance v. Asuncion (1989): NOT AUTOMATIC DISMISSAL BUT Court may allow payment of fees within reasonable period of time. Note that payment should

always be within the prescriptive period of the action filed. [Sun Insurance v. Asuncion]  Further Modification by Heirs of Hinog v. Melicor (2005): FEES AS LIEN. Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment. Note: Appellate docket and other lawful fees must be paid within the same period for taking an appeal. Non-payment is a valid ground for dismissal of an appeal. [M.A. Santander v. Villanueva (2004)] However, delay in the payment of docket fees confers upon the court discretionary and not mandatory power to dismiss an appeal. [Villamor v. CA (2004)]

b. Filing versus service of pleadings Filing is the act of presenting the pleading or other papers to the clerk of court. [RULE, 13, SEC. 2] Service is the act of providing a party with a copy of the pleading or paper concerned. [RULE, 13, SEC. 2]

c. Periods of filing of pleadings  Answer to the complaint - The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. [Rule 11.1] within thirty (30) days after receipt of summons of the foreign entity where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed [Rule 11.2]  Answer to amended complaint - Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Note that this Rule shall apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention. [Rule 11.3]

REMEDIAL LAW REVIEWER  Answer to counterclaim or cross-claim - A counterclaim or cross-claim must be answered within ten (10) days from service. [Rule 11.4]  Answer to third (fourth, etc.)- party complaint - Same rule as the answer to the complaint. [Rule 11.5]  Reply - within ten (10) days from service of the pleading responded to. [Rule 11.6]  Answer to supplemental complaint - within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. Note that the answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. NOTE: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Rule 11.11]

 Service by (registered) mail [Rule 13, Sec. 7] - By depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office or at his residence (if known), with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered. - If no registry service is available in the locality of either sender or addressee, service may be done by ordinary mail.  Substituted service [Rule 13, Sec. 8] By delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail

Personal service

Completeness of service (Rule 13 Sec. 10) Upon actual delivery

d. Manner of filing Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 Bar particularly in comparison with filing in criminal actions)  Personally. - By personally presenting the original to the clerk of court. - The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. - If a party avails of a private carrier, the date of the court‘s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992]]  By registered mail. - Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). - The pleading is deemed filed on the date it was deposited with the post office.

e. Modes of service [Rule 13, Sec. 5]  Personal service [Rule 13, Sec. 6] - Delivering personally a copy to the party or his counsel. - Leaving a copy in counsel's office with his clerk or with a person having charge thereof. - If no person is found in his office, or if his office is unknown, or if he has no office – Leaving the copy between 8am and 6pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein.

Service by ordinary mail Service by registered mail

10 days after mailing, unless otherwise provided by the court Whichever is earlier:  Actual receipt by the addressee  5 days after the addressee received 1st postmaster's notice

Proof of service (Rule 13 Sec. 13) Written admission of the party served, OR Official return of the server OR Affidavit of the party serving, with a full statement of the date/place/manner of service. Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13. Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13 AND Registry receipt issued by the post office

Service of judgments, final orders or resolutions [Rule 13, Sec. 9]  By personal service;  By registered mail;  By publication at the expense of the prevailing party if party was summoned by publication and has failed to appear in the action. Priorities in modes of service and filing [Rule 13, Sec. 11] General rule: Personal filing and service. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed.

107

REMEDIAL LAW REVIEWER Exception: Papers emanating from the court.

108

When service is deemed complete  Personal service is deemed complete upon actual delivery [Rule 13, Sec. 10]  Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier. [Rule 13, Sec. 10]  Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides [Rule 13, Sec. 10]  Substituted service is complete at the time of delivery of the copy to the clerk of court together with the proof of failure of both personal service and service by mail. [Rule 13, Sec. 8]

Proof of filing and service Proof of filing  Filing is proved by its existence in the record of the case [Rule 13, Sec. 12].  If it is not in the record [Rule 13, Sec. 12].

Personally

By registered mail

When pleading is deemed filed Upon receipt of the pleading by the clerk of court On the date the pleading was deposited with the post office

Proof of filing

Written/stamped acknowledgment the clerk of court

by

Registry receipt, and affidavit of the person who did the mailing with:  Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court  Postage fully paid  Instructions to the postmaster to return the mail to the sender after 10 days if undelivered

Proof of Service [Rule 13, Sec. 13]  Proof of personal service shall consist of: - a written admission of the party served, or the official return of the server, OR - the affidavit of the party serving, - Content: full statement of the date, place and manner of service.  Proof of service by ordinary mail: - an affidavit of the person mailing - Content: facts showing compliance with Rule 13, Sec. 7  Proof of service by registered mail

- an affidavit of the person mailing containing the facts showing compliance with Rule 13, Sec. 7, AND - the registry receipt issued by the mailing office. - the registry return card which shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. Notice of lis pendens [Rule 13, Sec. 14] LIS PENDENS - Notice of a pendency of the action between the parties involving title to or right of possession over real property. Requisites: [AFP Mutual Benefit Association v. CA (2001)]  Action affects the title or the right of possession of the real property;  Affirmative relief is claimed;  Notice shall contain the name of the parties and the object of the action/defense and a description of the property affected thereby;  Action in rem. - The notice serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. - The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. - The notice of cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as Sec. 14 provides that such cancellation may be authorized only upon order of court, after proper showing that: [Roxas v. CA (1993)] - The notice is for the purpose of molesting the adverse party; or - It is not necessary to protect the rights of the party who caused it to be recorded

Amended and supplemental pleadings

8. Amendment How to amend pleadings [Rule 10, Sec. 1]  Adding an allegation of a party;  Adding the name of a party;  Striking out an allegation of a party;  Striking out the name of a party;  Correcting a mistake in the name of a party; and  Correcting a mistaken or inadequate allegation or description in any other respect. Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

REMEDIAL LAW REVIEWER Barfel Development v. CA (1993): As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. Form [Rule 10, Sec. 7] A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.

a. Amendment as a matter of right SUBSTANTIAL AMENDMENTS – once, made at any time before a responsive pleading is served. If it is a reply, once, made at any time within l0 days after it is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar Exam) If as a matter of discretion – Amendment requires leave of court if:  It is substantial; and  A responsive pleading has already been served. [Rule 10, Sec. 3]

b. Amendments by leave of court SUBSTANTIAL AMENDMENTS - If as a matter of discretion, requires leave of court if:  It is substantial; and  A responsive pleading has already been served. [Rule 10, Sec. 3] Requisites for amendments by leave of court  Motion filed in court;  Notice to the adverse party;  Opportunity to be heard afforded to the adverse party. (NOTE: In the 2008 Bar Exam, a question was asked on amendment of complaint to implead additional parties)

subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action.  Once exercised, it cannot be disturbed on appeal, except in case of abuse thereof. [Metropolitan Bank v. Presiding Judge (1990)]

c. Formal amendment [Rule 10, Sec. 4]  A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court motu proprio or by motion at any stage of the action.  Provided that no prejudice is caused to the adverse party.

d. Amendments to conform to or authorize presentation of evidence [Rule 10, Sec. 5] (Asked in the 2004 Bar Exam)  If issues not raised by the pleadings are tried with the express/implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.  Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, may be made upon motion of any party, any time (even after judgment). - But failure to amend does not affect the result of the trial of these issues.  If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.

Amendments pleadings

vis-à-vis

supplemental

e. Different from supplemental pleadings

When amendment by leave of court may not be allowed  If the cause of action, defense or theory of the case is changed.  If amendment is intended to confer jurisdiction to the court. - If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)]  If amendment is for curing a premature or nonexisting cause of action.  If amendment is for purposes of delay.

Supplemental pleadings (ASKED IN THE 2000 BAR EXAM) Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6]

Note:  Admitting an amended complaint in intervention is a matter addressed to the court‘s discretion,

A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter.

It is made upon motion of a party with reasonable notice and upon terms as are just. The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Otherwise, the court should not admit the supplemental complaint. [Asset Privatization Trust v. CA (1998)]

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110

Unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. [Shoemart v. CA (1990)] Amendments Reason for the amendment is available at time of the 1st pleading Either as a matter of right or a matter of discretion Supersedes the pleading

When an amended pleading is filed, a new copy of the entire pleading must be filed

Supplemental pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed Always a matter of discretion Supplements the pleading (i.e. Exists side by side with the original pleading) A supplemental pleading does not require the filing of a new copy of the entire pleading

f. Effect of amended pleading Effect [Rule 10, Sec. 8]  Amended pleading supersedes the pleading that it amends.  Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived.  Admissions made in the superseded pleading may still be received in evidence against the pleader.

VI. SUMMONS 1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 2. Voluntary appearance 3. Personal service 4. Substituted service 5. Constructive service (by publication) 6. Extra-territorial service, when allowed 7. Service upon prisoners and minors 8. Proof of service Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant (asked in the 1999 Bar Exam)

1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem

corresponding summons to the defendants. [Rule 14, Sec. 1] Contents of summons [Rule 14, Sec. 2] Summons must be directed to the defendant, signed by the clerk of the court under seal, and contain: (1) Name of the court and names of the parties; (2) Direction that the defendant answer within the time fixed; (3) Notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem (if any) shall be attached to the original and each copy of the summons. NOTE that jurisdiction over person of defendant may also be acquired through voluntary appearance.

2. Voluntary appearance General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons; Exception: Special appearance to file a MTD. BUT inclusion in the MTD of grounds other than LOJ over the defendant‘s person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Who serves the summons [rule 14, sec. 3] (1) The sheriff or his deputy; (2) Other proper court officers; (3) For justifiable reasons, any suitable person authorized by the court issuing the summons. (4) Officer having management of a jail or institution deputized as special sheriff when defendant is a prisoner [rule 14, sec. 9] Return of summons [rule 14, sec. 4] When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service.

Purpose (1) To acquire jurisdiction over the person of the defendant in a civil case; (2) To give notice to the defendant that an action has been commenced against him.

Alias summons [rule 14, sec. 5] Upon plaintiff‘s demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. (2) Summons was lost.

Issuance of summons Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the

The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service.

REMEDIAL LAW REVIEWER Modes of service of summons Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by: (1) motion in writing, (2) supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. [Rule 14, Sec. 17]

Absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid.

3. Personal service

While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Mapa v. CA (1992)]

Service in person on defendant (1) By handing a copy of summons to him; (2) By tendering it to him, if he refuses to receive and sign for it. [Rule 14, Sec. 6]

4. Substituted service [Rule 14, Sec. 7] (asked in the 2004 Bar Exam) Rationale: Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. [Northwest v. CA (1995)] For a valid substituted service of summons, the following must be established in the proof of service: [Sps. Ventura v. CA (1987)] (1) Impossibility of the personal service of summons within a reasonable time; (2) Efforts made to find the defendant personally and the fact that such efforts failed; [Laus v. CA (1993)] (3) Service by leaving copy of summons either: (a) With some person of suitable age and discretion then residing in the defendant‘s residence; (b) With some competent person in charge of the defendant‘s office or regular place of business. For a substituted service to be valid, summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. [Sps. Ventura v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. [Laus v. CA (1993)]

Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service.

5. Constructive service publication) [Rule 14, Sec. 14]

(by

Requisites (1) The action is in rem or quasi in rem; (2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry; (3) There must be leave of court. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. [Consolidated Plywood vs. Breve (1988)] Service of summons upon different entities See Annex A.

a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown [Rule 14, Sec. 14] With leave of court, by publication in a newspaper of general circulation

b. Service upon residents temporarily outside the Philippines [Rule 14, Sec. 16] With leave of court, may serve extraterritorially Service of summons upon different entities Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence, even if defendant was abroad at that time. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. [Montalban v. Maximo 1963]

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6. Extra-territorial service, allowed [Rule 14, Sec. 15]

when

Exception: Doctrine of substantial compliance– If defendant actually received summons and complaint despite all these technicalities.

Requisites: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the Philippines; (2) Action either: (a) Affects the plaintiff‘s personal status; (b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; (c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; (d) Has defendant‘s property in the Philippines, attached.

Proof of service If personal or substituted service: In writing by the server and shall: [Rule 14, Sec. 18] (1) Set forth the manner/place/date of service; (2) Specify any papers which have been served with the process and the name of the person who received the same; (3) Be sworn to when made by a person other than a sheriff or his deputy.

Modes of service (1) With leave of court, serve outside the Philippines by personal service; or (2) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendant‘s last known address; (3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer.

7. Service upon prisoners and minors Service upon prisoner [Rule 14, Sec. 9] Serve upon the officer having management of the jail/prison Service upon minors and incompetents [Rule 14, Sec. 10] Serve upon the minor/incompetent and on his legal guardian.  If there is no guardian, plaintiff may apply for the appointment of a guardian ad litem.  If minor, may serve on his parents.

8. Proof of service Return of service [Rule 14, Sec. 4] When service has been completed, the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity.  Without return of service: Burden is on plaintiff.  In the Mapa case though, while there was a return, return was patently irregular, thus no presumption of regularity could be had.

If by publication: [Rule 14, Sec. 19] (1) Affidavit of the printer, his foreman, principal clerk, or the editor, business/advertising manager, with a copy of the publication attached, AND (2) Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. Effect of non-service of summons (asked in the 2006 Bar Exam) Unless the defendant voluntarily submits to the jurisdiction of the court,non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. If the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. [Ong Peng v. Custodio 1961] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. [Atkins v. Domingo 1923] Waiver of service of summons [Rule 14, Sec. 20]  General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons;  Exception: Special appearance to file a MTD.  Inclusion in the MTD of grounds other than LOJ over the defendant‘s person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Service of summons upon different entities See Annex A.


VII. MOTIONS 1. Motions in general 2. Motions for Bill of Particulars 3. Motion to Dismiss

d. Notice of hearing and hearing of motions Requisites of motions (not made in open court or in the course of hearing/trial) (1) In writing; [Rule 15, Sec. 2]

1. Motions in general a. Definition of a motion An application for relief other than by a pleading [Rule 15, Sec. 1] Motion day [Rule 15, Sec. 7] Except for urgent motions, motions are scheduled for hearing: (1) On Friday afternoons; (2) Afternoon of the next working day, if Friday is a non-working day. Motion for leave to file a pleading/motion [Rule 15, Sec. 9] Must be accompanied by the pleading/motion sought to be admitted Motions not acted upon Parties and counsel should not assume that courts are bound to grant the time they pray for. After all, a motion that is not acted upon in due time is deemed denied. [Orosa v. CA (1996)]

b. Motions versus pleadings Motion Contains allegations of facts Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief) Generally in writing (with some exceptions)

 Exception: Oral motions: (1) Made in open court; (2) In the course of a hearing/trial.

Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing

General rule: A motion cannot pray for judgment. Exception: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.

c. Contents and form of motions Contents [Rule 15, Sec. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) If it is required/necessary to prove facts alleged in a motion, it shall be accompanied by supporting affidavits and other papers. (4) Motions raising factual issues must be supported by affidavits. Form of motions [Rule 15, Sec. 2]  General rule: In writing.

(2) Hearing on the motion set by the applicant Notice of hearing shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15, Sec. 5] Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)] (3) Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4] Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. Exceptions: (1) Ex parte motions; (2) Urgent motions; (3) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (4) Motions for summary judgment which must be served at least 10 days before its hearing.

Proof of service [Rule 15, Sec. 6] General rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof. What may be proof: (1) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card, with an explanation. (2) If by personal service: Affidavit or acknowledgment of receipt by the other party. Exceptions: (1) If the motion is one which the court can hear ex parte. (2) If the court is satisfied that the rights of the adverse parties are not affected by the motion. (3) If the party is in default because such a party is not entitled to notice.

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REMEDIAL LAW REVIEWER e. Omnibus motion rule [Rule 15, Sec. 8]

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Definition: A motion attacking a pleading/order/ judgment/proceeding must include all objections then available. All objections not included in the motion are deemed waived. Exception: When the court‘s jurisdiction is in issue: (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription.

f. Litigated and ex parte motions Kinds of Motion (1) MOTION EX PARTE - Made without notification to the other party because the question generally presented is not debatable. (2) LITIGATED MOTION - Made with notice to the adverse party so that an opposition thereto may be made. (3) MOTION OF COURSE - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified. (4) SPECIAL MOTION - Discretion of the court is involved. An investigation of the facts alleged is required.

g. Pro-forma motions PRO FORMA MOTION – A motion failing to indicate time and date of the hearing

2. Motions for Bill of Particulars Bill of particulars (ASKED IN THE 2003 BAR EXAM) Definition: It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1]

a. Purpose and when applied for It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. An action cannot be dismissed on the ground that the complaint is vague/indefinite. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. [Galeon v. Galeon (1973)] Purpose To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading, with the view of enabling him to prepare properly his responsive pleading or to prepare for trial.

The purpose of a BOP is to define/ clarify/particularize/limit/circumscribe the issues in the case to expedite the trial and assist the court. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint are averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] A BOP becomes part of the pleading for which it was intended. [Rule 12, Sec. 6] When applied for [Rule 12, Sec. 1] (1) Before responding to a pleading (2) If the pleading is a reply, within 10 days from service thereof What a motion for bill of particulars should point out [Rule 12, Sec. 1] (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired.

b. Actions of the court [Rule 12, Sec. 2] (1) Deny; (2) Grant the motion outright; (3) Allow the parties the opportunity to be heard.

c. Compliance with the order and effect of non-compliance Compliance with order [Rule 12, Sec. 3] If motion for BOP is granted wholly/partially: (1) Within 10 days from notice of order, BOP or a more definite statement should be submitted (unless court fixes a different period). (2) BOP or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party. Effect of non-compliance [Rule 12, Sec. 4] In case of non-compliance or insufficient compliance with the order for BOP, the court: (1) May order the striking out of the pleading (or portion thereof) to which the order is directed; OR (2) Make such order as it may deem just. If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3] If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

d. Effect on the period to file a responsive pleading [Rule 12, Sec. 5] A Motion for BOP interrupts the period to file a responsive pleading.

REMEDIAL LAW REVIEWER The period to which the movant is entitled at the time of filing of the motion, which shall not be less than 5 days in any event. NOTE the following distinctions: Bill of Particulars (BOP) Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague, so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case Available to the defendant before he files his responsive pleading

Intervention Purpose is to enable a person not yet a party to an action, yet having a certain right or interest in such action, the opportunity to appear and be joined so he could assert or protect such right or interest

Available to any person not yet a party to the action at any time after the commencement of an action, even during the proceeding, but not after the trial has been concluded

Terminating the action before trial

3. Motion to Dismiss Definition A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint It hypothetically admits the facts stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. Exception: (1) Cases where the court may dismiss a case motu propio; [Rule 9, Sec. 1] (2) Failure to prosecute; [Rule 17, Sec. 3] (3) Sec. 4, Revised Rule on Summary Procedure. Types of dismissal of action (1) MTD before answer under Rule 16; (2) MTD under Rule 17:

(a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff. (3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; (4) Dismissal of an appeal. Note: A MTD shall be proved/disproved according to the rules of evidence. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence, except when the motion is based upon failure of the complaint to state a cause of action. When the MTD is based on facts not appearing of record, the court may hear the matter on affidavits/depositions.

a. Grounds [Rule 16, Sec. 1] (Asked in the 2008 Bar Exam) i. ii. iii. iv. v. vi. vii. viii. ix. x. xi.

LOJ over the defendant‘s person LOJ over the subject matter of the claim Improper venue Plaintiff‘s lack of legal capacity to sue Litie pendentia Res judicata Prescription Failure to state a cause of action Extinguished claim Unenforceable claim under the Statute of Frauds Non-compliance with a condition precedent for filing claim

i. LOJ over the defendant’s person The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made. If a defendant had not been properly summoned, the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. [Laus v. CA (1993)] Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)] ii. LOJ over the subject matter of the claim If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion. A MTD on the ground of LOJover the subject matter may be raised either: (1) Before answer; (2) After answer is filed; (3) After hearing had commenced;

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(4) At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer. iii. Improper venue Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)] A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4, Sec. 2(b). In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue, an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. [HSBC v. Sherman (1989)] If the court erroneously denies the MTD, the remedy is prohibition. iv. Plaintiff’s lack of legal capacity to sue The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); (2) When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate). Lack of legal capacity to sue refers to plaintiff‘s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action. v. Litis pendentia Requisites: [Anderson Group v. CA (1997) Asked in the 2007 Bar Exam] (1) Identity of parties; (2) identity of rights asserted and relief prayed for; (3) Relief founded on the same facts and the same basis; (4) Identity in the 2 proceedings should be such that any judgment which may be rendered in the other action will amount to res judicata on the action under consideration. It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later. It does not require that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: (1) The More Appropriate Action Test; (2) The Interest of Justice Test, taking into account:

(a) Nature of the controversy; (b) Comparative accessibility of the court to the parties; (c) Other similar factors. In both tests, the parties‘ good faith shall be taken into consideration. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)] vi. Res judicata Requisites (Asked in the 2000 Bar Exam): (1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties; (2) Judgment must be a final judgment; (3) Judgment must be on the merits; There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Rule 17, Sec. 3. (4) There must be identity of parties, of subject matter and of the causes of action. For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; (2) The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)] Two concepts of res judicata [ABALOS V. CA 1993, ASKED IN THE 1997 BAR EXAM)] (1) BAR BY PRIOR JUDGMENT – Judgment on the merits in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. (Asked in the 2002 Bar Exam) (2) CONCLUSIVENESS OF JUDGMENT – Where the 2nd action between the parties is upon a different claim/demand, the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.


vii. Statute of limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time

Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time

viii. Complaint states no cause of action Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. The failure to state a cause of action must be evident on the face of the complaint itself. Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] viii. Extinguished claim That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished. ix. Unenforceable claim under the statute of frauds Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (a) An agreement that by its terms is not to be performed within a year from the making thereof;

(b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person. x. Non-compliance with a condition precedent Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent.

b. Resolution of Motion During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] (1) Their arguments on questions of law; (2) Their evidence on questions of fact. Exception: Those not available at that time. If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same. After the hearing, the court may either: [Rule 16, Sec. 3] (1) Dismiss the action/claim; (2) Deny the MTD; (3) Order the amendment of pleadings. The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. The court‘s resolution on the MTD must clearly and distinctly state the reasons therefor.

c. Remedies of plaintiff when the complaint is dismissed Remedies of plaintiff when motion to dismiss is granted If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options: (1) Depending upon the ground for the dismissal of the action, the plaintiff may refile the

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complaint, e.g when ground for dismissal is anchored on improper venue. (2) He may appeal from the order of dismissal where the ground relied upon is one which bars refilling of complaint e.g. (a) Res judicata (b) Prescription (c) Extinguishment of the obligation (d) Violation of Statutes of Fraud (3) The plaintiff may also avail of a petition for certiorari, alleging grave abuse of discretion. [Riano]

in a separate action) of a counterclaim pleaded in the answer.

d. Remedies of the defendant when the motion is denied

Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs:  (f) – That the cause of action is barred by a prior judgment or by the statute of limitations;  (h) – That the claim or demand set forth in the plaintiff‘s pleading has been paid, waived, abandoned, or otherwise extinguished; and  (i) - That the claim on which the action is founded is enforceable under the provisions of the statute of frauds

1. The movant shall file his answer within the balance of the period described in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event. Appeal is not a remedy since denial of a motion to dismiss is an interlocutory order. As a general rule, defendant files his answer and then may appeal an adverse judgment. 2. Another remedy is to file a certiorari, case under Rule 65 alleging grave abuse of discretion. [Riano]

e. Effect of dismissal of complaint on certain grounds i. Of dismissal: [Rule 16, Sec.5] General rule: The action/claim may be re-filed. Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds. [Rule 16, Sec. 1 (f),(h),(i)] ii. On periods for pleading: [Rule 16, Sec.4] If MTD is denied – Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days) computed from the his receipt of notice of the denial. If pleading is ordered to be amended – movant must file his answer within the period under Rule 11, counted from service of the amended pleading (unless the court gives a longer period). iii. On other grounds and omnibus motion rule: MTD based on the following grounds may be filed even after filing an answer: [Rule 9, Sec. 1] (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription. Dismissal of the complaint under Rule 16, Sec. 6 is without prejudice to the prosecution (in the same or

f. When grounds pleaded as affirmative defenses [Rule 16, Sec. 6] If no MTD was filed, the grounds in Rule 16, Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed.

g. Bar by dismissal

shall bar the refiling of the same action or claim. [Rule 16, Sec. 5]

h. Distinguished from demurrer to evidence under Rule 33 MTD under Rule 16 Based on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for, but prior to, the filing of the defending party‘s answer to the pleading asserting the claim against him If denied, defendant answers; else, he may be declared in default. If granted, plaintiff may appeal or if a subsequent case is not barred, he may re-file the case

MTD under Rule 33 (Demurrer to evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence If denied, defendant may present evidence. If granted, plaintiff appeals and the order of the dismissal is reversed; the defendant loses his right to present evidence.

VIII. DISMISSAL OF ACTIONS 1. Dismissal upon notice by plaintiff; Twodismissal rule 2. Dismissal upon motion by plaintiff; effect on existing counterclaim 3. Dismissal due to the fault of plaintiff 4. Dismissal of counterclaim, cross-claim or third-party complaint


1. Dismissal upon notice by plaintiff; Two-dismissal rule Dismissal upon plaintiff’s notice [Rule 17, Sec. 1] Dismissal here is effected not by motion but by mere notice before the service of either: (1) The answer; (2) A motion for summary judgment. Upon plaintiff‘s filing of notice, the court shall issue an order dismissing the case. (i.e. the court has no discretion on WON to dismiss the case). General rule: The dismissal is without prejudice. Exceptions: (1) If the notice of dismissal provides that it is with prejudice. The dismissal is still with prejudice even it the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved. [Serrano v. Cabrera (1953)] (2) TWO-DISMISSAL RULE – If the plaintiff has previously dismissed an action based on or including the same claim, the notice operates as an adjudication upon the merits.

2. Dismissal upon motion by plaintiff; effect on existing counterclaim Dismissal upon plaintiff’s motion [Rule 17, Sec. 2] Here, dismissal of the complaint is subject to the court‘s discretion and upon such terms and conditions as may be deemed proper by court Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. If defendant pleaded a counterclaim prior to the service upon him of the plaintiff‘s motion for dismissal, the dismissal shall be without prejudice to the defendant‘s right to either: (1) Prosecute his counterclaim in a separate action; (2) Have the counterclaim resolved in the same action, by manifesting such preference within 15 days from being notified of plaintiff‘s motion for dismissal. Dismissal here is without prejudice, unless otherwise provided in the order. Court approval of the court is necessary in the dismissal/compromise of a class suit.

3. Dismissal due to the fault of plaintiff Dismissal due to plaintiff’s fault [Rule 17, Sec. 3]

The case may be dismissed motu proprio or upon the defendant‘s motion if, without justifiable cause, plaintiff fails either: (1) To appear on the date of the presentation of his evidence-in-chief on the complaint;  The plaintiff‘s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute.  It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)] (2) To prosecute his action for an unreasonable length of time (nolle prosequi); The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)] (3) To comply with the ROC or any court order. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action. Rule 17, Sec. 2 Dismissal is at the plaintiff‘s instance Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiff‘s motion for dismissal of his own complaint. Dismissal is without prejudice to the defendant‘s right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action).

Rule 17, Sec. 3 Dismissal is not procured by plaintiff, although justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits

Dismissal is without prejudice to the defendant‘s right to prosecute his counterclaim in the same or in a separate action

4. Dismissal of counterclaim, crossclaim or third-party complaint [Rule 17, Sec. 4] This Rule applies to the dismissal of counterclaims, cross-claims or 3rd-party complaints. Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata. Res judicata, however, is not

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applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]

IX. PRE-TRIAL 1. 2. 3. 4.

Concept of pre-trial Nature and purpose Notice of pre-trial Appearance of parties; effect of failure to appear 5. Pre-trial brief; effect of failure to appear 6. Distinction between pre-trial in civil case and pre-trial in criminal case 7. Alternative Dispute Resolution (ADR)

1. Concept of pre-trial Definition A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice (Asked in the 1999 Bar Examination, Examiner asked to compare this with proceedings in the Katarungang Pambarangay).

2. Nature and purpose Purpose To consider: [Rule 18, Sec. 2]  Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;  Simplification of the issues;  Necessity/desirability of amendments to the pleadings;  Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;  Limitation of the number of witnesses;  Advisability of a preliminary reference of issues to a commissioner;  Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;  Advisability/necessity of suspending the proceedings; and  Other matters that may aid in the prompt disposition of the action. Note:  Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.

 Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]  When conducted: After the last pleading has been served and filed, it shall be the plaintiff‘s duty to move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1]  A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiff's reply, except where the period to file the last pleading has lapsed.  Discretion to declare a party non-suited in PTC must not be abused. Unless a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal for non-appearance, the court should consider lesser sanctions which would still amount to achieving the end desired. [Calalang v. CA (1993)]

3. Notice of pre-trial [Rule 18, Sec. 3] Notice of pre-trial shall be served on counsel, or on the party who has no counsel. Counsel served with such notice has a duty to notify the party he represents. At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If the mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu Davao City, and other place where PMC Units may be further organized and designated. [Admin, Circular No. 20-2002; Admin. Circular No. 50-2005, April 26, 2005]

4. Appearance of parties; effect of failure to appear Appearance of parties [Rule 18, Sec. 4] It is the duty of the parties and their counsel to appear at the pre-trial. A party‘s non-appearance may be excused only if either:  Valid cause is shown for it;  A representative appears in his behalf, fully authorized in writing: - To enter into an amicable settlement; - To submit to alternative modes of dispute resolution; - To enter into stipulations/admissions of facts and of documents. Citibank v. Chua (1993): SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard.

REMEDIAL LAW REVIEWER There are instances when parties may properly be defaulted, but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders. Failure to appear at pre-trial Who fails to appear Plaintiff

Defendant

Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof

Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

As in default (failure to appear by plaintiff) (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

 A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)]  The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records.  As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer.  The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure.  Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)]  Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control.  Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]

5. Pre-trial brief; effect of failure to appear Pre-trial brief [Rule 18, Sec. 6]  Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.  Pre-trial brief‘s contents (Asked in the 2001 Bar Exam): - Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; - Summary of admitted facts and proposed stipulation of facts; - Issues to be tried/resolved; - Documents/exhibits to be presented, stating the purpose thereof; - Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; - Number and names of the witnesses, and the substance of their respective testimonies. NOTE: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Record of pre-trial [Rule 18, Sec. 6]  The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order.  Pre-trial order‘s contents: - Matters taken up in the conference; - Action taken thereon; - Amendments allowed on the pleadings; - Agreements/admissions made by the parties as to any matters considered; - Should the action proceed to trial, the explicit definition and limit of the issues to be tried.  Consequence: The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.  Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement.  If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)] Note: AM 03-1-09-SC (No termination of pre-trial for failure to settle) Calendar of Cases  Under the direct supervision of the judge, the clerk of court shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned/postponed, and those with motions to set for hearing. [Rule 20, Sec. 1]

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 Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. [Rule 20, Sec. 1]  The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. [Rule 20, Sec. 2]

6. Distinction between pre-trial in civil case and pre-trial in criminal case (Bar 1997, Riano) Civil Case Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1]

Made after the pleading has been served and filed [Rule 18, Sec. 1]

Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)] The arrangements and admissions in the pretrial are not required to be signed by both parties and their counsels. Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7] [AM No. 03-1-09] requires the proceedings during the preliminary conference to be recorded in the ―Minutes of Preliminary Conference‖ to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign) The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4]

Criminal Case Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1] Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1] Does not include the considering of the possibility of amicable settlement of one‘s criminal liability as one of its purposes [Rule 118, Sec. 1] (Stricter procedure) All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]

Civil Case A pre-trial brief is specifically required to be submitted [Rule 18, Sec. 6]

7. Alternative (ADR)

Criminal Case A pre-trial brief is not specifically required.

Dispute

Resolution

X. INTERVENTION 1. Requisites for intervention 2. Time to intervene 3. Remedy for the denial of motion to intervene Definition of intervention (Asked in the 2003 Bar Exam) A legal remedy whereby a person is permitted to become a party in a case, by either:  Joining the plaintiff;  Joining the defendant;  Asserting his right against both plaintiff and defendant, considering that either: - He has a legal interest in the subject matter of the action; - He is going to be adversely affected by the disposition of the property in the custody of the court Metropolitan Bank v. Presiding Judge (1990): Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. Cariño vs. Ofilada (1993): It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined.

Sanctions are imposed upon the counsel for the accused or the prosecutor [Rule 118, Sec. 3]

Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action. Who may intervene [Rule 19, Sec. 1]

REMEDIAL LAW REVIEWER  One who has a legal interest in the matter in litigation;  One who has a legal interest in the success of either of the parties;  One who has an interest against both parties;  One who is so situated as to be adversely affected by a distribution/disposition of property in the court‘s custody. Meaning of legal interest  One that is actual and material, direct and of an immediate character, not merely contingent or expectant so that that intervenor will either gain or lose by the direct legal operation of the judgment.  When the title to the property if declared void by final judgment, intervention will not revive or reinstate the movant‘s title derived from the title declared void. [Firestone Ceramics vs. CA (1999)]  The assignee of a property who assumed payment of whatever amount may be finally adjudged against the assignor, may intervene in a proceeding involving the execution of the property pursuant to a judgment. [Robles vs. Timario (1962)]  In an action for foreclosure of mortgage, the alleged owners of the land sought ot be foreclosed may intervene. [Roxas vs. Dinglasan (1969)]

1. Requisites for intervention How intervention is done By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the pleading-in-intervention on the original parties. [Rule 19, Sec. 2] General rule: Allowance discretionary with the court.

of

intervention

is

Exception: When the intervenor is an indispensable party. Factors considered in allowing intervention  WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties.  WON the intervenor's rights may be fully protected in a separate proceeding. Carino vs Ofilada (1993): The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

Magsaysay-Labrador v. CA (1989): Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint, without the establishment of which plaintiff could not recover. Pleadings in intervention [Rule 19, Sec. 3]  COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties.  ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. Answer to complaint-in-intervention [Rule 19, Sec. 4] It must be filed within 15 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court. Intervention An ancillary action Proper in any of the four situations mentioned in Rule 19

There is already a defendant among the original parties to the pending suit

Interpleader An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part is not disputed by the other parties to the action Defendants are being sued precisely to implead them

2. Time to intervene  Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2]  After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the movant‘s right. The movant‘s remedy is to file a separate action.

3. Remedy for the denial of motion to intervene Remedies  For denial of intervention: - Appeal. - Mandamus, if there is GAD.  For improper granting of Certiorari.

intervention:

XI. SUBPOENA 1. 2. 3. 4.

Subpoena duces tecum Subpoena ad testificandum Service of subpoena Compelling attendance of Contempt 5. Quashing of subpoena

witnesses;

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Subpoena is a process issued by court which is either: Types (and definition) of subpoena [Rule 21, Sec. 1]  Subpoena duces tecum  Subpoena ad testificandum By whom issued [Rule 21, Sec. 2]  The court before whom the witness is required to attend;  The court of the place where the deposition is to be taken;  The officer/body authorized by law to do so in connection with investigations conducted by said officer/body;  Any SC/CA Justice in any case or investigation pending within the Philippines. Form and contents of subpoena [Rule 21, Sec. 3]  Name of court;  Title of action/investigation;  Directed to a person whose attendance is required  If subpoena duces tecum, a reasonable description of the books/documents/things demanded which must appear to the court prima facie relevant. Subpoena for depositions [Rule 21, Sec. 5]  Proof of service of a notice to take a deposition is sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice.  Issued by the clerk of court of the place in which the deposition is to be taken.  However, subpoena duces tecum for depositions cannot be issued without court order.

1. Subpoena duces tecum Process directed to a person, requiring him to bring with him any books/documents/things under his control. (Asked in the 1997 Bar Exam) Subpoena duces tecum distinguished from Order for production or inspection See Annex B.

2. Subpoena ad testificandum Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition.

3. Service of subpoena [Rule 21, Sec. 6]  Same manner as personal or substituted service of summons.  The original shall be exhibited and a copy delivered to person on whom it is served, with tender of fees for one day‘s attendance and kilometrage.

 Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof.  For subpoena duces tecum, also tender the reasonable cost of producing the books/documents/things demanded.  Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

4. Compelling attendance witnesses; Contempt

of

Personal appearance in court [Rule 21, Sec. 7] A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. Application for subpoena to prisoner [Rule 21, Sec. 2]  The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose.  However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. Remedy in case of witness’ failure to attend Upon proof of service of subpoena and of witness‘ failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8] The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC. Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10]  A witness who resides more than 100km from his residence to the place where he is to testify.  A detention prisoner, if there is no permission from the court in which his case is pending.

5. Quashing of subpoena [Rule 21, Sec. 4] Upon motion promptly made, at/before the time specified in the subpoena. Grounds for quashing:  Subpoena duces tecum: - It is unreasonable and oppressive; - The relevancy of the books/documents/ things does not appear;

REMEDIAL LAW REVIEWER - The person in whose behalf the subpoena is issued fails to advance the reasonable cost of production; - Witness fees and kilometrage were not tendered when subpoena was served.  Subpoena ad testificandum: - That the witness is not bound thereby; - That witness fees and kilometrage were not tendered when the subpoena was served.

XII. MODES OF DISCOVERY 1. Depositions pending action; Depositions before action or pending appeal 2. Written interrogatories to adverse parties 3. Request for Admission 4. Production or inspection of documents or things 5. Physical and mental examination of persons 6. Consequences of refusal to comply with modes of discovery

1. Depositions pending action; Depositions before action or pending appeal [RULES 23 and 24] Depositions Under Rule 23 a. Meaning and purpose of deposition  Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.  The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law.  Limitations would arise if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass or oppress the person under examination; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.  Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. [Jonathan Landoil v Mangudadatu (2006)]

b. Scope of examination Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party  including the existence, description, nature, custody, condition and location of any books,

documents, or other tangible things and the identity of any persons having knowledge of relevant facts. [Rule 23, sec. 2]

c. Uses of deposition pending action Dasmariñas Garments,Inc. v. Reyes (1993): General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party‘s or witness‘ deposition is inadmissible in evidence for being hearsay. Exception: [Rule 23, Section 4]  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;  The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;  The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: - that the witness is dead; or - that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or - that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or - that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or - upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and  If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

d. Before whom taken General Rule: Depositions may be taken before any judge, notary public, or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation). Exceptions: In our jurisdiction, depositions in foreign countries may be taken:  on notice before a secretary of embassy or legation, consul general, consul, vice consul, or

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consular agent of the Republic of the Philippines;  before such person or officer as may be appointed by commission or under letters rogatory; or  before any person authorized to administer oaths as stipulated in writing by the parties.

COMMISSION Addressed to whom

Rules that govern the deposition When issued

Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally, no need to resort to diplomatic channels unlike in letters rogatory)

LETTERS ROGATORY A judicial authority in the foreign country Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (Regalado)

No deposition shall be taken before a person who [Rule 23, sec. 13]  a relative within the sixth degree consanguinity or affinity, or  employee or counsel of any of the parties, who is a relative within the same degree, employee of such counsel; or  who is financially interested in the action.

is: of or or

e. Procedure A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Section 15]  After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Section 16]  The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Section 1]  The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Section 3]  The officer before whom the deposition is being taken has no authority to rule on objections

interposed during the course of the deposition although any objections shall be noted by him upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection. [Rule 23, Section 17]

f. When may taking of deposition terminated or its scope limited

be

The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of taking the deposition WHEN: At any time during the taking of the deposition, on the motion or petition of any party or of the deponent GROUND: that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party [Rule 23, sec. 18] If the order made terminates the examination, it shall be resumed only upon the order of the court in which the action is pending.

g. When may objections to errors and irregularities be made [Rule 23, sec. 29] Objection As to notice to parties Deposition officer disqualified

is

Lack of relevance, materiality and competence of the deposition to the action Error in the manner of taking the deposition Error in the form of written interrogatories

Error in manner preparing deposition

the of the

When Made Waived, unless written objection is promptly served upon party giving notice Waived, unless made before the taking of the deposition or as soon as the disqualification becomes known or could be discovered with reasonable certainty NOT waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which might have been obviated or removed if presented at that time Waived, unless reasonable objection is made at the taking of the deposition Waived, unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories Waived, unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with reasonable diligence might have been, ascertained

REMEDIAL LAW REVIEWER h. Other rules Effect of substitution of parties [Rule 23, Sec. 5]  Substitution of parties does not affect the right to use depositions previously taken;  and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest,  all depositions lawfully taken and duly filed in the former action MAY BE USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR. Effect of taking deposition [Rule 23, Sec. 7]  A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Effect of using deposition [Rule 23, Sec. 8]  General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition.  Exception: if the purpose is to contradict or impeach the deponent. Leave of court [Rule 23, Sec. 1]  Leave of court is NOT required after an answer has been served.  It is required before the service of an answer but after jurisdiction has been acquired over the defendant or over the property subject of the action.  ONLY INSTANCE WHEN ONE ALWAYS NEEDS LEAVE OF COURT BEFORE TAKING DEPOSITIONS: Where the deponent is in jail.

Written Interrogatories under Rule 23  A deposition need not be conducted through an oral examination. It may be conducted through written interrogatories which shall be served upon every other party.  The party served may also serve crossinterrogatories upon the party proposing to take the deposition within 10 days from service of the written interrogatories. The latter may, within 5 days serve re-direct interrogatories and within 3 days the other party may serve re-cross interrogatories [Rule 23, Sec. 25]  Copies of all these interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record. [Rule 23, Sec. 26] People v. Hubert Webb (1999): DEPOSITION, WHEN AVAILABLE IN CRIMINAL CASES: A deposition, in keeping with its nature as a mode of discovery, should be taken BEFORE AND NOT DURING TRIAL. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent’s main defense in the criminal proceedings against him in the court below - states that when a person intends

to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. The deposition taking cannot be based nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. Dasmariñas Garments v. Reyes (1993): Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being hearsay save in specific instances under the Rules.

Depositions Before Action Under Rule 24 Purpose To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. Procedure FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. The petition shall be entitled in the name of the petitioner and shall show:  that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought;  the subject matter of the expected action and his interest therein;  the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;  the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and  the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.  NOTICE AND SERVICE to each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.  At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. 

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ORDER AND EXAMINATION: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. Note: Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse.

Depositions Pending Appeal Under Rule 24 J. Regalado believes that the following procedure is applicable to civil and criminal cases. Procedure: DURING THE PENDENCY OF AN APPEAL, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court.  The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state:  the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and  the reason for perpetuating their testimony.  ORDER ALLOWING THE DEPOSITION: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken.

NOTE: Interrogatories under RULE 25 are served directly upon the adverse party unlike written interrogatories under RULE 23 which are delivered to the officer before whom the deposition is to be taken.

c. Answer  The interrogatories shall be ANSWERED FULLY IN WRITING and shall be SIGNED AND SWORN TO BY THE PERSON MAKING THEM.  The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. [Rule 25, Sec. 2]

d. Effect of objections to interrogatories When objections to any interrogatories is presented to the court within 10 days after service thereof, with notice as in case of a motion, the answer shall be deferred until the objections are resolved [Rule 25, Sec. 3]

e. Number of interrogatories No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. [Rule 23, Sec. 4]

f. Scope of interrogatories

2. Written interrogatories to adverse parties [RULE 25]

Any matter  not privileged, and  relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

a. Purpose

g. Use of interrogatories

This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25, Sec. 1]

Same as Rule 23, Sec. 4 mutatis mutandis.

b. Procedure  By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or  Without such leave after an answer has been served, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

h. Failure to file written interrogatories A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal, UNLESS allowed by the court for good cause shown and to prevent failure of justice.

i. Consequences of refusal to answer  The party serving the interrogatories may apply to the court for an order to compel an answer.  If court also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, TO PAY THE PROPONENT THE AMOUNT OF THE REASONABLE EXPENSES INCURRED IN OBTAINING


       

THE ORDER, INCLUDING ATTORNEY'S FEES (Rule 29, Sec. 1). Refusal to comply with an order of the court to compel an answer may be considered CONTEMPT of that court (Rule 29, Sec. 2) The subject of discovery shall be DEEMED ADMITTED OR ESTABLISHED (Rule 29 Sec. 3a). The disobedient party shall be prohibited from introducing CONTRADICTORY EVIDENCE (Rule 29, Sec. 3b) STRIKING OUT OF PLEADINGS OR PARTS THEREOF (RULE 29, SECTION 3c) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED (RULE 29, SECTION 3c) DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF(RULE 29, SECTION 3c) RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY; AND (RULE 29, SECTION 3c) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders [RULE 29, Sec. 3c]

3. Request for Admission [RULE 26] a. Purpose  To allow one party to request the adverse in writing to admit certain material and relevant matters which most likely will not be disputed during the trial.  To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: - admit the genuineness of any material and relevant document described in and exhibited with the request; or - admit the truth of any material and relevant matter of fact set forth in the request [Rule 26, Sec. 1]

b. When may request be made At any time after issues have been joined. Duque v. CA (2002): The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. This is an exception to the general rule that notices shall be served upon counsel and not upon the party.

c. Implied admission by adverse party EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED unless,  within a period designated in the request, which shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion,  the party to whom the request is directed files and serves upon the party requesting the admission a SWORN STATEMENT either - denying specifically the matters of which an admission is requested, or

- setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

d. Deferment of compliance To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement be deferred by filing with court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court. [Rule 26, Sec. 2 par. 2]

e. Effect of admission Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. [Rule 26, Sec. 3]

f. Withdrawal The court may allow the party making an admission, whether express or implied under the Rule to withdraw or amend it upon such terms as may be just. The admitting party must file a motion to be relieved of the effects of his admissions.

g. Effect of failure to file and serve request for admission General rule: The party who fails to file a request shall not be permitted to present evidence on such facts. Exception: Unless otherwise allowed by the court for: - good cause shown and - to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which ARE, OR OUGHT TO BE, WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER [Rule 26, Sec. 5]

4. Production or inspection documents or things [RULE 27]

of

a. Procedure A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. [Rule 27, Sec. 1]  The court in which the action is pending shall issue an order:  which shall specify the time, place and manner

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of making the inspection and taking copies and photographs, and  which may prescribe such terms and conditions as are just. [Rule 27, Sec. 1]

b. What the court may order  To PRODUCE and PERMIT THE INSPECTION and copying or photographing, by or on behalf of the moving party, of any documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the party to whom the order is addressed.  To PERMIT ENTRY upon designated land or other property in the position or control of the party to whom the order is addressed for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. [Rule 27, Sec. 1] NOTE: This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. (Regalado) (Asked in the 2002 Bar Exam)

5. Physical and mental examination of persons [Rule 28] a. Motion requesting Examination Requisites  The physical or mental condition of a party (NOT A WITNESS!) is in controversy  Motion must be filed showing good cause  Notice given to the party to be examined and to all other parties  Notice must specify the time, place, manner, conditions and scope of examination  Notice must also specify person/s who will make the examination

b. Court to issue the order for examination in its discretion. c. Report of findings  If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions.  After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination,

previously or thereafter made, of the same mental or physical condition.  If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just  If it is the physician who fails or refuses to make such a report the court may exclude his testimony if offered at the trial. [Rule 28, Sec. 3]

d. Waiver or privilege By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

e. Physician-Patient Privilege  Inapplicable because the results of the examination are intended to be made public.  Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition.

6. Consequences of refusal to comply with modes of discovery See Annex C.

XIII. TRIAL 1. Adjournments and postponements 2. Requisites of motion to postpone trial a. For absence of evidence b. For illness of party or counsel 3. Agreed statement of facts 4. Order of trial; reversal of order 5. Consolidation or Severance of hearing or trial 6. Delegation of reception of evidence 7. Trial by commissioners a. Reference by consent or ordered on motion b. Powers of the commissioner c. Commissioner’s report; notice to parties and hearing on the report Trial, defined A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People]. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It

REMEDIAL LAW REVIEWER includes the pre-trial and the determination of granting or denying a motion. [Trocio v Labayo] Notice of trial [Rule 30, Sec. 1] Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date.

1. Adjournments and postponements [Rule 30, Sec. 2] General rule: The court may adjourn a trial from day to day to any stated time, as the expeditious and convenient transaction of business may require. Exception: Court may not adjourn for longer than 1 month for each adjournment, nor more than 3 months in all. Exception to exception: When authorized in writing by the SC Court Administrator. Note: Postponement is not a matter of right. It is addressed to the sound discretion of the court. [Riano, citing Garces v Valenzuela]

2. Requisites of motion to postpone trial a. for absence of evidence b. for illness of party or counsel Ground for postponement of trial For absence of evidence [Rule 30, Sec. 3]

For illness of party/counsel [Rule 30, Sec. 4]

Requisite for motion to postpone Affidavit showing:  The materiality/relevancy of such evidence;  That due diligence has been used to procure the evidence But if the adverse party admits the facts to be given in evidence, trial shall not be postponed even if he objects or reserves the right to object to their admissibility. Affidavit or sworn certification:  That the presence of such party/counsel at the trial is indispensable;  That the character of his illness is such as to render his nonattendance excusable.

Subpoena See separate part for Subpoena BUT please take note that Subpoenas are issued within the context of a Trial and taking depositions under Modes of Discovery.

3. Agreed statement of facts [Rule 30, Sec. 6]

 Parties may agree in writing upon the facts involved in the litigation, and submit the case for judgment without introduction of evidence.  If the parties agree to only some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe.

4. Order of trial; reversal of order Conduct of trial [Rule 30, Sec. 5] General rule: Trial shall be limited to the issues stated in the pre-trial order. Exception:  Provisions on separate trials in Rule 31, Sec. 2  When for special reasons the court directs otherwise. General order of trial Plaintiff shall adduce evidence in support of his claim;  Defendant shall adduce evidence in support of his defense, counterclaim, cross-claim and 3rd-party complaint;  3rd-party defendant (if any) shall adduce evidence of his defense, counterclaim, cross-claim and 4thparty complaint;  4th-party (and so forth) shall adduce evidence of the material facts pleaded by them;  Parties whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order prescribed by the court.  Parties may respectively adduce rebutting evidence only. Exception: When the court permits them to adduce evidence upon their original case, for good reasons and in furtherance of justice.  Upon admission of evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or 3rd-party defendants having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence.

5. Consolidation or Severance of hearing or trial Consolidation of trial [Rule 31, Sec. 1] When actions involving common question of law/fact are pending before the court, it may:  Order a joint hearing/trial of any/all the matters in issue in the actions;  Order all the actions consolidated;

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 Make such orders concerning the proceedings as to avoid unnecessary costs or delay.

a. Reference by consent or ordered on motion

Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)]

Order of reference [Rule 32, Sec. 2 to 12] ORDER OF REFERENCE: When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference.

Severance of trial [Rule 31, Sec. 2] The court may issue separate trials for convenience or to avoid prejudice:  Of any claim, cross-claim, counterclaim or 3rdparty complaint;  Of any separate issue;  Of any number of claims, cross-claims, counterclaims, 3rd-party complaints or issues.

REPORT: Upon completion of the trial/hearing, the commissioner shall file a written report with the court.

Statement of judge [Rule 30, Sec. 7] During the hearing/trial of the case, any statement made by the judge shall be made of record in the TSN if made with reference to the case/parties/witnesses/ counsels. Suspension of actions [Rule 30, Sec. 8] Governed by the CC provisions

6. Delegation of reception evidence [Rule 30, Sec. 9]

of

General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in:  Default hearings;  Ex parte hearings;  Cases where parties agree in writing. However, the clerk of court has no power to rule on objections to any question/admission of exhibits. Objections shall be resolved by the court upon submission of the clerk‘s report and TSN within 10 days from termination of the hearing.

7. Trial by commissioners COMMISSIONER – Includes a referee, an auditor or an examiner. [Rule 32, Sec. 1] Kinds of trial by commissioner [Rule 32, Secs. 1 & 2]  Reference by consent of both parties.  Reference ordered on motion when: - Trial of an issue of fact requires the examination of a long account on either side - Taking of an account is necessary for the court‘s information before judgment, or for carrying judgment/order into effect. - A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.

MEETING: The commissioner shall set a time/place for the first meeting and shall notify parties/counsels.

NOTICE: The clerk shall notify parties of the filing of the report. The parties 10 days to object to the report‘s findings. HEARING: After the 10 days, the report shall be set for hearing. The court may issue an order adopting/modifying/rejecting the report or part of it. When parties stipulate that the Commissioner's findings of fact are final, only questions of law shall thereafter be considered.

b. Powers of the commissioner [Rule 32, Sec. 3] When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may:  Specify/limit the commissioner‘s power  Direct him to report only upon particular issues, to do/perform particular acts, or direct him to receive and report evidence only  May fix the date for beginning and closing the hearings and for the filing of his report. Powers of the Commissioner:  Regulate the proceedings in every hearing before him [subject to other specifications & limitations in the order]  Power to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order [subject to other specifications & limitations in the order]  He may issue subpoenas and subpoenas duces tecum, swear witnesses.  He may rule upon the admissibility of evidence, unless otherwise provided in the order of reference. The trial or hearing before him shall proceed in all respects as it would if held before the court.

c. Commissioner’s report; notice to parties and hearing on the report Report of commissioner [Rule 32, Sec. 9]

REMEDIAL LAW REVIEWER Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference.

Grant of demurrer The case dismissed

shall

Denial of demurrer be

When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. Notice to parties of the filing of report [Rule 32, Sec. 10] Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein, set forth, shall not be considered by the court unless they were made before the commissioner. Hearing on the report [Rule 32, Sec. 11] Upon the expiration of the 10-day period in Rule 32, Sec. 10, the report shall be set for HEARING. After which the court shall issue an ORDER:  Adopting (in whole or in part),  Modifying (in whole or in part)  Rejecting the report (in whole or in part),  Recommitting the report with instructions, or  Requiring the parties to present further evidence before the commissioner or the court.

XIV. DEMURRER TO EVIDENCE 1. 2. 3. 4. 5.

Ground Effect of denial Effect of grant Waiver of right to present evidence Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case

1. Ground Definition: A species of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him.

However, if the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec 1; Republic v. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario] Equivalent to judgment (i.e. based on the merits of the evidence presented so far)

When to File Ground

Effect

An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan]

MTD Before the service and filing of the answer Those enumerated in Rule 16

Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i.e. evidence is insufficient)

If a MTD is granted, the complaint is likewise dismissed. But, depending on the ground, the complaint may be re-filed If the MTD is denied, the defendant shall file his responsive pleading

4. Waiver of right to present evidence

2. Effect of denial 3. Effect of grant Grant of demurrer

Plaintiff's remedy would be to appeal.

The defendant shall have the right to present evidence The court should set the date for the reception of the defendant‘s evidence-in-chief [Northwest Airlines v. CA] xxx

Denial of demurrer

If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera]

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5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL CASES (Asked in the 2003 and 2007 Bar Exams) Demurrer in civil cases Demurrer in criminal cases Defendant need not ask May be filed with or for leave of court without leave of court.

If the demurrer is granted, the order of dismissal is appealable If a demurrer is denied, the defendant may proceed to present his evidence

Note: Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied [Rule 119, Sec.23] The order of dismissal is not appealable because it will constitute double jeopardy The accused may adduce his evidence only if the demurrer is field with leave of court

XV. JUDGMENTS AND FINAL ORDERS 1. 2. 3. 4. 5.

Judgment without trial Contents of a judgment Judgment on the pleadings Summary judgments Judgment on the pleadings versus summary judgments 6. Rendition of judgments and final orders 7. Entry of judgment and final order JUDGMENT The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding [Macahiling vs. Heirs of Magalit] REQUISITES OF A VALID JUDGMENT [RULE 36, SEC. 1; ART. 8, SEC. 14, 1987 CONSTITUTION] AJOEWS  Court/tribunal must be with authority to hear and determine the matter before it;  Court must have jurisdiction over the parties and the subject matter;  Parties must have been given an opportunity to adduce evidence in their behalf;  Evidence must have been considered by the tribunal in deciding the case; [Acosta v. COMELEC]

 Judgment must be in writing, personally and directly prepared by the judge;  Note: A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan]  Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Rule 35, Sec. 1] A decision need not be a complete recital of the evidence presented. So long as the factual and legal bases are distinctly and clearly set forth, the judgment is valid. [Chan v. CA] Kinds of judgment  JUDGMENT UPON COMPROMISE - It is one conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of FAME.  JUDGMENT UPON CONFESSION - It is one rendered by the court when a party expressly agrees to the other party‘s claim or acknowledges the validity of the claim against him. Judgment upon compromise The provisions and terms are settled by the parties to the action. The judgment is entered in the record by consent of the court.

Judgment by confession An affirmative and voluntary act of the defendant himself. The court exercises a certain amount of supervision over the entry of judgment.

Kinds of judgment by confession: - JUDGMENT BY COGNOVIT ACTIONEM – After service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff‘s cause of action was just and rightful. - JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial, the defendant both: (a) confessed the plaintiff‘s cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. Remedy against judgment by consent, confession or compromise is to first file a motion to set it aside; if denied, file the appropriate petition under Rule 65.  JUDGMENT UPON THE MERITS - It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is ―on the merits‖ when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts  CLARIFICATORY JUDGMENT - It is rendered to clarify an ambiguous judgment or one difficult to comply with.

REMEDIAL LAW REVIEWER  JUDGMENT NON PRO TUNC - Literally, ―now for then‖. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v Tan Pho]  JUDGMENT SIN PERJUICIO - It may refer to a dismissal of a case without prejudice to it being re-filed.  CONDITIONAL JUDGMENT - It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Such a judgment is generally void because eof the absence of a disposition [cu-unjieng v mabalacat sugar co.]  SEVERAL JUDGMENT - It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. [Rule 36, sec. 4] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other.  SEPARATE JUDGMENT - It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Rule 36, sec. 5] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made. The judgment shall terminate the action with respect to the claims disposed of, and shall proceed as to the remaining claims. The court may stay its enforcement until rendition of subsequent judgments, and may prescribe conditions to secure the judgment‘s benefits. Judgment may be given for/against one or more of several plaintiffs/defendants. The court may require the parties on each side to file adversary pleadings as between themselves. [Rule 36, Sec. 3] If judgment is rendered against 2 or more persons sued as an entity without juridical personality, the judgment shall set out their individual names (if known). [Rule 36, Sec. 6]  PROMULGATION - The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.  MEMORANDUM DECISION - A decision of the appellate court which adopts the findings and conclusions of the TC.

- A judgment is considered rendered upon the filing of the signed decision. - This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.

1. Judgment without trial When trial is not necessary – PSADSA (Asked in the 1996 Bar Exams) [Riano]  The pleadings of the parties tender no issue at all – judgment on the pleadings may be directed by the court [Rule 34]  There is actually no genuine issue from the pleadings, affidavits, depositions and other papers – court may render a summary judgment [Rule 35]  Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18; Art. 2028 Civil Code]  Complaint has been dismissed with prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]  Case falls under the Rules on Summary Procedure  Agreed statement of facts [Rule 30, Sec. 6]

2. Contents of a judgment Parts of a judgment  Body, Ratio decidendi, or Opinion of the court – It contains the findings of facts and conclusions of law;  Fallo, or Disposition of the case – It is the dispositive part of the judgment that actually settles and eclares the rights and obligation sof the parties, finally, definitevely, and authoritatively [Light Rail Transit Authority v CA]; The part of the judgment that is subject to execution [Riano]  Signature of the judge. Distinction Between Judgment and Opinion of the Court (ASKED IN THE 2006 BAR EXAM)  A judgment (or FALLO) must be distinguished from an opinion.  The latter is the informal expression of the views of the court and cannot prevail against its final order or decision.  While the two may be combined in one instrument, the opinion forms no part of the judgment.  So there is a distinction between the findings and conclusions of a court and its judgment.  While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself.  They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan vs. Salcedo (1969)] Conflict between the dispositive portion and body of the decision

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REMEDIAL LAW REVIEWER Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls.

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Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v Pacific Equipmetnt Corporation] Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company]

Definition, nature A judgment granted by the court for the prompt disposition of civil actions, if it clearly appears (after the issues had been joined and on the basis of the pleadings and papers filed) that there exists no genuine issue/controversy as to any material fact, except as to the amount of damages. [Ley Construction v. Union Bank; Agbada v Inter-Urban Developers; Raboca v Velez] Also called accelerated judgment.

3. Judgment on the pleadings [Rule 34] (Asked in the 1999 and 2005 Bar Exams) Grounds: If the answer either  Fails to tender an issue; Note: An answer fails to tender an issue due to either: - General denial of the material allegations of the complaint; - Insufficient denial of the material allegations of the compliant.  Admits the material allegations of the adverse party‘s pleading. Cannot be rendered motu proprio A judgment on the pleadings can be done only upon MOTION to that effect filed by the appropriate party. It cannot be rendered by the court motu proprio. Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. [Rule 18, Sec. 2(g)] When judgment on the pleadings will not apply  Declaration of nullity of marriage;  Annulment of marriage;  Legal separation. Effect: judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved Effects  By moving for judgment on the pleadings, the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved).  One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching (1952)]

4. Summary judgments [Rule 35] (Asked in the 1986, 1989, 1996 and 1999 Bar Exams)

Genuine issue  An issue of fact which calls for the presentation of evidence; as distinguished from an issue which is sham, fictitious, contrived and patently insubstantial so as not to constitute a genuine issue for trial.  When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts.  The TC cannot motu propio issue a summary judgment. A party must move for summary judgment. [Riano] Procedure [Rule 35, Sec. 3] Movant files a motion for summary judgment with supporting affidavits, depositions or admission  Service to the adverse party at least 10 days the hearing  Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing  Hearing – Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law  Judgment

a. for the claimant [Rule 35, Sec. 1] b. for the defendant [Rule 35, Sec. 2] Who may file the motion Claimant Defendant

When May file the motion only after the answer has been served May file the motion any time

Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Bases of summary judgment: When, upon the following, no genuine issue as to any material fact exists:  Affidavits made on personal knowledge;  Depositions of the adverse or a 3rd party; (Rule 23)  Admissions of the adverse party; (Rule 26)

REMEDIAL LAW REVIEWER  Answers to interrogatories. (Rule 25)

c. When the case not fully adjudicated Partial summary judgment (Asked in the 2004 Bar Exam) Applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established. Duty of court [Rule 35, Sec. 4]  Ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted based on: - An examination of the pleadings and evidence before it - Interrogation of the counsel  Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy  Direct further proceedings as are just  Conduct trial on the controverted facts accordingly Effect A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA (1983)]

d. Affidavits and attachments Form of affidavits and supporting papers [Rule 35, Sec. 5]  Made on personal knowledge  Shall set forth such facts as would be admissible in evidence  Shall show affirmatively that the affiant is competent to testify to the matters stated therein. Attachments [Rule 35, Sec. 5] Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto OR served therewith. Affidavits in bad faith [Rule 35, Sec. 5] Definition – Affidavits presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay Effects:  Court shall order the offending party or counsel to pay the other party – amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney‘s fees  Court may adjudge the offending party or counsel guilty of contempt, after hearing

5. Judgment on the pleadings versus summary judgments Summary judgment

Judgment on the pleadings

Judgment by default

Based on the pleadings, depositions, admissions and affidavits There is no genuine issue between the parties

Available to both plaintiff and defendant

10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

Based solely upon the pleadings The answer fails to tender an issue or there is an admission of the material allegations Generally available only to the plaintiff, unless the defendant presents a counterclaim 3-day notice required On the merits

Available in any action, except annulment of marriage or legal separation cases

Based on the complaint and evidence, if court requires its presentation No issues as no answer is filed by the defending party

Available to the plaintiff alone

3-day notice rule applies On the merits

Available in any action, except annulment of marriage or legal separation cases

6. Rendition of judgments and final orders Form of judgment [Rule 36, Sec. 1]  In writing  Personally and directly prepared by the judge  Stating clearly & distinctly the facts and the law on which it is based  Signed by the judged  Filed with the clerk of court. Definition of rendition of judgment It is the filing of the judgment with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court. [Ago v. CA] Period within which decision is to be rendered [1987 Constitution, Art. VIII, Sec. 15]  All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision.  Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts.

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A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court. An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse [Arap v Mustafa] Interpretation of the judgment Where the judgment is difficult to execute because of ambiguity in its terms, the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. [Poland Industrial Limited v National Development Company]

7. Entry of judgment and final order Definition of entry of judgment The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [Riano] Rendition of judgment Filing of the judgment with the clerk of court

Entry of judgment Act of clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment

Entry of Judgments and Final Orders [Rule 36, Sec. 2] If there is no appeal/MNT/MFR filed within the prescribed periods, the clerk of court shall enter the judgment or final order in the book of entries of judgments. Date of finality of the judgment = Date of its entry in the book Note: the periods for filing the following pleadings are reckoned from the date of entry of judgment  Execution of a judgment by motion (5 years from entry) [Rule 39, Sec. 6]  Petition for relief (as one of its periods, not more than 6 months from entry of the judgment or final order) [Rule 38, Sec. 3] The record:  Shall contain the judgment‘s dispositive part  Shall be signed by the clerk of court with a certificate that the judgment has become final and executory. Amendments to judgment (Asked in the 2008 Bar Exams) The power to amend judgments is inherent to the court before judgment becomes final and executory. General rule: The court cannot amend the judgment once it has become final and executory. Exception:

 To make corrections of clerical errors, not substantial amendments, as by an amendment non pro tunc;  To clarify an ambiguity which is borne out by and justifiable in the context of the decision;  In judgments for support, which can always be amended from time to time. Amended/clarified judgment An entirely new decision and supersedes the original judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues

Supplemental decision Does not take the place of or extinguish the original judgment Serves to add to the original judgment

XVI. POST-JUDGMENT REMEDIES 1. Motion for New Trial or reconsideration 2. Appeals in General 3. Relief from judgments, orders and other proceedings 4. Annulment of Judgments or final orders and resolutions 5. Collateral attack of judgments Remedies BEFORE finality of judgment  Motion for Reconsideration  Motion for New Trial  Appeal

1. Motion for Reconsideration

New

Trial

or

Motion for reconsideration A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure. Contents of motion for new trial or reconsideration Rule 37, Sec.2. Contents of motion for new trial or reconsideration.—The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.

REMEDIAL LAW REVIEWER A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.

a. Grounds Rule 37, Sec.1. Grounds of and period for filing motion for new trial or reconsideration.—Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary law. Grounds for a motion for reconsideration  The evidence is insufficient to justify the decision;  The damages awarded are excessive;  The decision or final order is contrary to law. Form and content of a motion for reconsideration Motion for reconsideration must be in writing, a written notice of which must be served on the adverse party. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. Grounds for motion for new trial

The aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party:  FAME (Extrinsic Fraud, Accident, Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. - The motion shall be supported by affidavits of merit. Non-compliance with this requirement would reduce the motion to a mere pro forma motion. - The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Otherwise, if the complaint is after all groundless or the defense is ineffective, a new trial would serve no purpose.  Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. - The motion shall be supported by: affidavits of the witnesses by whom such evidence is expected to be given; and/or duly authenticated documents which are proposed to be introduced in evidence. - Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Tumang vs. CA: Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant. Extrinsic fraud: any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who, because of such fraud, was prevented from presenting his side of the case. Intrinsic fraud: acts of a party during the trial which does not affect the presentation of the case. Accident: an event that occurs without one‘s foresight or expectation. Mistake: generally, mistakes of facts or law where, in good faith, the defendant was misled in a case.

b. When to file The motion must be filed within the period for appeal. The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. The 15-day period is deemed to commence upon receipt by the counsel of record,

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which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment.

The prohibition on a second motion does not apply to a motion for reconsideration of an interlocutory order.

No motion for extension of time shall be allowed.

Denial of motion for new trial The judgment or final order shall stand as is.

Where a record on appeal is required, the appellant shall file:  a notice of appeal, and  record on appeal within 30 days from notice of the judgment or final order. A record on appeal is required only in:  Special proceedings;  Other cases of multiple or separate appeals. Resolution of the motion Rule 37, Sec.4. Resolution of motion.—A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. Effect of filing The filing of a timely motion interrupts the period to appeal. The 30-day period to resolve the motion is held to be mandatory [Gonzales vs Bantolo (2006)] Rule 37, Sec.3. Action upon motion for new trial or reconsideration.—The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly.

c. Denial of the motion; effect Denial of motion for reconsideration The judgment or final order shall stand as is. Rule 37, Sec.7. Partial new trial or reconsideration.—If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. Single motion rule Rule 37, Sec.5. Second motion for new trial.—A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial based on a ground not existing or available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order.

Rule 37, Sec.8. Effect of order for partial new trial.—When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. When there is an order for partial new trial, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. When a second motion for new trial is permissible: When a ground for new trial was not existing or available when the first motion was made.

d. Grant of the motion; effect Grant of motion for reconsideration The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment. Grant of motion for new trial The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent).

e. Remedy when motion is denied, Fresh 15day period rule Rule 37, Sec.9. Remedy against order denying a motion for new trial or reconsideration.—An order denying a motion for new trial or reconsideration is now appealable. (As modified by AM 07-7-12) Remedy if motion is denied  To appeal from the judgment or final order itself.  The order denying the motion for new trial or reconsideration may itself be assailed by a petition for certiorari under Rule 65. Habaluyas vs. Japson (1986): A motion for new trial or reconsideration is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order. Fresh period rule Neypes vs. CA (2005): If the motion is denied, the movant has a ―fresh period‖ of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal.

REMEDIAL LAW REVIEWER This ―fresh period rule‖ shall also apply to:  Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts;  Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals;  Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and  Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

2. Appeals in General a. Judgments and final orders subject to appeal Rule 41 [as amended by A.M. 07-7-12 (2007)] SECTION 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (e) An order of execution; (f) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. SIGNIFICANCE OF THE AMENDMENT An order denying motion for new reconsideration is NOW APPEALABLE! FINAL ORDER Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution Appealable Must

clearly

and

trial

or

INTERLOCUTORY ORDER Does not dispose of a case completely but leaves something more to be decided upon. Not appealable except through a petition for certiorari under Rule 65 No need to comply with

distinctly state the law and the facts on which it is based

such a requirement

b. Matters not appealable Not appealable under Rule 41  Order denying motion for new trial or reconsideration;  Order denying petition for review or any similar motion seeking relief from judgment;  Interlocutory order;  Order disallowing/dismissing appeal;  Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent;  Order of execution;  While the case is pending, judgment or final order: - For/against one or more of several parties; - In separate claims, counterclaims, crossclaims, third-party complaints. Exception: If court allows appeal.  Order dismissing an action without prejudice. In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65.

c. Remedy against judgments and orders which are not appealable d. Modes of appeal i. Ordinary appeal

Procedure in the Court of Appeals Ordinary appealed cases Rule 44, Sec. 1. Title of cases.—In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing shall be further referred to as the appellant and the adverse party as the appellee. Counsels and guardians Rule 44, Sec. 2. Counsel and guardians.—The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. Order of transmittal of record Rule 44, Sec. 3. Order of transmittal of record.—If the original record or the record on appeal is not transmitted to the Court of Appeals within 30 days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal.

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Case docketing Rule 44, Sec. 4. Docketing of case.—Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Within 10 days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court 7 clearly legible copies of the approved record on appeal, together with the proof of service of 2 copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record in appeal shall be a ground for dismissal of the appeal. Record completion Rule 44, Sec. 5. Completion of record.—Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform the court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. Rule 44, Sec. 6. Dispensing with complete record.— Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult cases, the court, on its own motion or on motion of an of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. The failure of appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order is a ground for dismissal of the appeal. Appellant’s brief Rule 44, Sec.7. Appellant’s brief.—It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, 7 copies of his legibly written, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellee.

(a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; (c) Under the heading ―Statement of the Case,‖ a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; (d) Under the heading ―Statement of Facts,‖ a clear and concise statement in a narrative form of facts admitted by both parties and of those in controversy, together with the substance of proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; (f) Under the heading ―Argument,‖ the appellant‘s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. (g) Under the heading ―Relief,‖ a specification of the order of judgment which the appellant seeks; and (h) In cases not brought up by record on appeal, the appellant‘s brief shall contain, as an appendix, a copy of the judgment or final order appealed from. Rule 44, Sec. 15. Questions that may be raised on appeal.—Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. Rule 124, Sec. 7. Contents of brief.—The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant.

Important numbers to remember  File brief within 45 days from receipt of notice,  File seven copies of the brief,  Serve two copies to appellee and file proof of service.

Appellee’s brief Rule 44, Sec. 8. Appellee’s brief.—Within 45 days from receipt of the appellant‘s brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant.

Contents of appellant’s brief Rule 44, Sec. 13. Contents of appellant’s brief.— The appellant‘s brief shall contain, in the order herein indicated, the following:

Contents of appellee’s brief Rule 44, Sec. 14. Contents of appellee’s brief.—The appellee‘s brief shall, in the order herein indicated, the following:

REMEDIAL LAW REVIEWER (a) A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; (b) Under the heading ―Statement of Facts,‖ the appellee shall state that the accepts the statement of facts in the appellant‘s brief, or under the heading ―Counter-Statement of Facts,‖ he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant‘s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant‘s statement of facts; and (c) Under the heading ―Argument,‖ the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. Reply brief Rule 44, Sec. 9. Appellant’s reply brief.—Within 20 days from receipt of the appellant‘s brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant. Memoranda in special cases Rule 44, Sec. 10. Time for memoranda in special cases.—In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the clerk that all the evidence, oral or documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefore may be a ground for dismissal of the appeal. Several or plurality of appellant’s, appellees and/or counsel Rule 44, Sec. 11. Several appellants or appellees or several counsel for each party.—Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. Extension of time for filing briefs Rule 44, Sec. 12. Extension of time for filing briefs.—Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. The brief De Liano vs. CA (2001): The purpose of the brief is

to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. Failure to comply with required contents of appellant‘s brief is cause for dismissal of the petition. Dismissal of appeal Rule 50, Sec. 1. Grounds for dismissal of appeal.— An appeal may be dismissed Court of Appeals, on its own motion or on that of appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal of the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provide in section 5 of Rule 40 and Section 4 of Rule 41; (d) Unauthorized alterations, omission or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant‘s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. PNB vs. Philippine Milling (1969): CA has discretion to dismiss or not to dismiss appeal. Although said discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case, the presumption is that it has been so exercised. Padasdas vs. CA (1974): Failure to file appellant‘s brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure. Dismissal of improper appeal Rule 50, Sec. 2. Dismissal of improper appeal to the Court of Appeals.—An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals

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raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. Atlas Consolidated vs. CA (1991): Circular No.2-90 now prohibits the transfer of appeals erroneously taken to the SC or CA to whichever of these tribunals has appropriate appellate jurisdiction. But where SC believes that there are factual issues which must be resolved, it may, in the exercise of its sound discretion and considering the attendant circumstances, either itself take cognizance of and decide such issues or refer them to CA for determination. Cu-unjieng vs. CA (2006): Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41, Sec. 4 is a ground for the dismissal of an appeal under Rule 50, Sec. 1(c). The Supreme Court has invariably sustained the Court of Appeal‘s dismissal on technical grounds under the afore-quoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. True, the rules may be relaxed but only for persuasive and weighty reasons, to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure. Withdrawal of appeal Rule 50, Sec. 3. Withdrawal of appeal.—An appeal may be withdrawn as of right at any time before the filing of the appellee‘s brief. Thereafter, the withdrawal may be allowed in the discretion of the court. Stay of execution General rule: If judgment is rendered against the defendant, execution shall issue immediately upon motion. Exception: Immediate execution of judgment may be stayed if the following requisites concur:  an appeal has been perfected  the defendant files a sufficient supersedeas bond, approved by the MTC and executed in favor of the plaintiff to pay the rents, damages and costs accruing down to the time of the judgment appealed from  during the pendency of the appeal, the defendant deposits with the appellate court the amount of rent due from time to time under the contract; in the absence of a contract, he shall deposit with the RTC the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the 10th day of each succeeding month or period

 The supersedeas bond shall be transmitted by the MTC, with the other papers, to the clerk of the RTC to which the action is appealed.  All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary band, and shall be held there until the final disposition of the appeal, UNLESS the court:  by agreement of the interested parties, or  in the absence of reasonable grounds of opposition to a motion to withdraw, or  for justifiable reasons, shall decree otherwise.  Should the defendant fail to make the payments, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits.  After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court.  In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. Habere Facias Possessionem; definition The name of the process commonly resorted to by the successful party in an action for ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered. San Pedro vs CA: Judgments in ejectment cases which are favorable to the plaintiff are immediately executory. They can be stayed by the defendant only by:  perfecting an appeal;  filing a supersedeas bond; and  making a periodic deposit of the rental or the reasonable compensation for the use and occupation of the property during the pendency of the appeal. These requisites must concur. Puncia vs Gerona: A stay of execution may also be warranted once the writ is issued:  where the delay in the deposit is due to fraud, accident, mistake, or excusable negligence; or,  where supervening events occurring subsequent to the judgment bring about a material change in the situation of the parties which makes execution inequitable  where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances

REMEDIAL LAW REVIEWER Rule 39, Sec. 2. Discretionary execution.— (a) Execution of a judgment or a final order pending appeal.—On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments.—A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. Sec. 21, Revised Rules on Summary Procedure. Appeal. — The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with Sec. 22 of BP 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed. Rule 43, Sec. 12. Effect of appeal.—The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. Rule 39, Sec. 4. Judgments not stayed by appeal.— Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are not or may hereafter be declared to be immediately executory shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. General rule: In ordinary appeals, execution is stayed. Exceptions  Decision in forcible entry and unlawful detainer. Exception to exception: If appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the

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occupation as fixed by the court which rendered the decision. Decision of the MeTC, MTC or MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order. Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure. Decision of a quasi-judicial agency under the Rule 43, Sec. 12, UNLESS otherwise provided by the Court CA; Decision in cases of injunction, receivership, support and accounting.

Service Specialists vs Sheriff of Manila: An appeal from the order denying the petition for relief does not stay the judgment from which relief is sought. In order to stay execution, it is necessary to obtain a writ of preliminary injunction. When case is submitted for judgment Rule 51, Sec. 1. When case deemed submitted for judgment.—A case shall be deemed submitted for judgment: A. In ordinary appeals.— Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. When such hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review.— Where no comment is filed, upon the expiration of the period to comment. Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. The period within which a court must render a decision is mandatory [New Frontier Mines vs NLRC] Judgment Rule 51, Sec. 2. By whom rendered.—The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. Rule 51, Sec. 3. Quorum and voting in the court.— The participation of all three Justices of a division

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shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rules and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. Rule 51, Sec. 4. Disposition of a case.—The CA, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. Sec.40, BP 129. Form of decision in appealed cases.—Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusion of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from. Rule 51, Sec. 5. Form of decision.—Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the finding of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. The body of the judgment must contain the reasons or conclusions of the court to serve as a guide or enlightenment to determine the ratio decidendi. But what actually constitutes the resolution of the court which is the subject of the execution is the dispositive portion of the fallo. [Olac vs. CA] Rule 51, Sec. 6. Harmless error.—No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceedings must disregard any error or defect which does not affect the substantial rights of the parties. Rule 51, Sec. 7. Judgment where there are several parties.—In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and revered as to others, and the case shall thereafter be proceeded with, so far as necessary, as of separate actions had been begun

and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. Rule 51, Sec. 8. Questions that may be decided.—No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error Rule 51, Sec. 9. Promulgation and notice of judgment.—After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel.

ii. Petition for review iii. Petition for review on certiorari

Procedure in the Supreme Court (Appealed Cases) Mode of appeal Rule 56, Sec. 3. Mode of appeal.—An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Procedure Rule 56, Sec. 4. Procedure.—The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and this Rule. Grounds for dismissal of appeal Rule 56, Sec. 5. Grounds for dismissal of appeal.— The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; (f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the Supreme Court. Improper appeal

REMEDIAL LAW REVIEWER Rule 56, Sec. 6. Disposition of improper appeal.— Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of facts are involved shall be final. Rule 122, Sec. 3. How appeal taken.— (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule. (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule. (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. General rule: An appeal taken to the Supreme Court by notice of appeal shall be dismissed. Exception: Appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Equally divided Rule 56, Sec. 7. Procedure if opinion is equally divided.—Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. Questions of Fact vs. Questions of Law

Agote vs. Lorenzo (2005): A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Alsua-Betts vs. CA (1979): General rule: CA‘s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC, provided they are borne out by the record or are based on substantial evidence. Exception: CA‘s findings of fact may be reviewed by the SC on appeal by certiorari when: 1. Conclusion is a finding grounded entirely on speculations, surmises or conjectures (Joaquin vs. Navarro). 2. Inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok). 3. There is grave abuse of discretion in the appreciation of facts (Buyco vs. Pp). 4. Judgment is based on a misapprehension of facts (De la Cruz vs. Sosing). 5. The Court of Appeal‘s findings of fact are conflicting (Casica vs. Villaseca). 6. The Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons vs. CA (1986)]. 7. The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana vs. Dosdos (1965)]. 8. The Court of Appeal‘s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz vs. CA (1987)]. Perez-Rosario vs. CA (2005): Rule 65 cannot cure the failure to appeal thru Rule 45.

e. Issues to be raised on appeal Cognizable judgments/issues The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. BermudezLorino (2005)] Rationale: Appeal is merely a privilege conferred by law upon the litigants. A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)]

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However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)] Notice of appeal The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. Record of appeal Required only in:  Special proceedings;  Multiple or separate appeals where the law or the Rules of Court so requires. Rule 40, Sec.2. When to appeal.—The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Neypes vs. CA (2005) on the fresh period rule: Definition: Period of appeal is interrupted by a timely motion for new trial or reconsideration. Motion for extension of time to file motion for new trial or reconsideration is not allowed. Applicability:  Rule 40 on  Rule 42 on  Rule 43 on  Rule 45 on

appeals from MTC to RTC. petitions for review from RTC to CA. appeals from QJA to CA. appeals by certiorari to SC.

Rationale: To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for new trial or reconsideration.

From RTC (original) to CA to SC and from MTC to RTC (appellate) to CA to SC and from CA to SC and from QJA to CA to SC 15 days from notice of judgment or final order or from denial of petitioner‘s motion for reconsideration or new trial. The SC may grant a 30 day extension for justifiable reasons.

From QJA to CA 15 days from notice of the award, judgment, final order or resolution or from date of last publication if required by law. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. Distinctions Between Rule 45 and Rule 65 Based on J. Regalado’s Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 1. Issues Raised Questions of Law

Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction

2. Against What Court Action Directed Review of the judgment, award or final order on the merits

3. Reglementary Period Must be filed within the reglementary period for appeal. 4. Effect on Proceedings Below

Not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.

the

Judgment, award or order appealed from is stayed by the Appeal

f. Period of appeal From MTC to RTC and from RTC (original) to CA  By notice of appeal: 15 days from notice of the judgment or final order  By record of appeal: 30 days from notice of the judgment or final order  From MTC to RTC (appellate) to CA: 15 days from notice of the judgment or final order but the Court of Appeals may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days.

Directed Against an Interlocutory Order of the court prior to appeal from the judgment, or where there is no appeal or any other plain speedy and adequate remedy

No effect (i.e., proceedings below continue) unless a writ of preliminary injunction or a temporary restraining order has been issued

5. Parties Involved Original Parties to the action remain the same during appeal (albeit with the corresponding appellation of appellant and appellee), the lower court or quasi-judicial agency is not to be impleaded.

The parties are the aggrieved party against the lower court/Quasijudicial agency and the prevailing parties, who thereby respectively become the petitioner and the respondents.

REMEDIAL LAW REVIEWER Distinctions Between Rule 45 and Rule 65 Based on J. Regalado’s Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 6. Requirement of Motion for Reconsideration For purposes of appeal, MR is not required

MR is a CONDITION PRECEDENT subject only to certain exceptions.

7. Exercise of Jurisdiction The Appellate Court exercises its appellate jurisdiction and power of review

Matrix of Periods

MTC to RTC

Higher Court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts.

This ―fresh period rule‖ shall also apply to:  Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts;  Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals;  Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and  Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes vs. CA, (2005)] A party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)]

g. Perfection of appeal Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami vs. CA (2004)] Rationale: Appeal is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. It is neither a natural right nor a part of due process. Effect of failure to perfect appeal  Defeats a party‘s right to appeal.  Precludes appellate court from jurisdiction.

acquiring

Camposagrado vs. Camposagrado (2005): Failure to pay the appellate court docket fee within the

RTC to CA

MTC to RTC to CA

Period to Appeal By notice of appeal - 15 days from notice of the judgment or final order By record of appeal – 30 days from notice of the judgment or final order By notice of appeal - 15 days from notice of the judgment or final order By record of appeal – 30 days from notice of the judgment or final order 15 days from notice of the judgment or final order OR from denial of MR or MNT

Extensions No extensions allowed

Effect of MR or MNT Interrupts the period to appeal

No extensions allowed

Interrupts the period to appeal

The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The SC may grant a 30 day extension for justifiable reasons.

Fresh period to appeal from denial MR or MNT

15 days from Fresh notice of the period to award, appeal judgment, from final order or denial MR resolution or or MNT QJA from date of to CA last publication if required by law OR from denial of MR or MNT 15 days from Fresh RTC notice of period to to SC judgment or appeal RTC final order from to CA OR from denial MR to SC denial of or MNT CA to petitioner‘s SC MR or MNT. reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. Such discretion should consider all attendant

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REMEDIAL LAW REVIEWER circumstances and must be exercised with a view to substantial justice.

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Republic v. Bermudez-Lorino (2005): Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. Medina vs. CA (1992): A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. Espina vs. CA (1992): However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. Appeal from MTC to RTC: the rules on perfection of appeal from RTC to CA applies. From the Regional Trial Court to CA:  By notice of appeal: perfected as to party who filed notice upon filing of the same in due time - The court loses jurisdiction over the case upon perfection of appeal AND expiration of time to appeal of the other parties.  By record on appeal: perfected as to the party who filed appeal and with respect to the subject matter thereof upon approval of the record filed in due time - The court loses jurisdiction upon approval of the records on appeal AND expiration of the time to appeal of the other parties From MTC to RTC (appellate jurisdiction) to CA: upon timely filing of a petition for review and the payment of the corresponding docket and other lawful fees.  The RTC loses jurisdiction upon perfection of appeals filed in due time AND the expiration of time to appeal of other parties.

h. Appeal from judgments or final orders of the MTC MTC to RTC Rule 40, Sec.1. Where to appeal.—An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party the appellee. The other provisions governing appeal from RTC to CA so long as they are not inconsistent are applicable to appeal from MTC to RTC. MTC to RTC to CA File a verified petition for review with the CA, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500 for costs and furnishing the RTC and the adverse party with a copy

of the petition.

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The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner‘s MNT or MR filed in due time after judgment.



Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Rule 42, Sec. 1] (Asked in the 1999 and 2002 Bar Exam) Petition for review from RTC to CA [Rule 42] APPLICABILITY - Appeal of RTC decision rendered in exercise of appellate jurisdiction [Rule 42, Sec. 1] CERTIFICATE OF NON-FORUM SHOPPING (CNFS) Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. However, this rule is relaxed where there is need to conduct a review. In those instances, petitioner may comply with the requirement after he has filed the petitions. [Rule 42, Sec.1] MTC to RTC to CA to SC Rule 41. Sec.2(c). Appeal by certiorari.—In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45. Rule 45, Sec.1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law, may file with the SC a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (Asked in the 2002 Bar Exams) Applicability of Rule 45 Rule 45, Sec.9. Rule applicable to both civil and criminal cases.—The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Filing of petition  File with the SC a verified petition for review on certiorari.  In 18 copies, with the original copy intended for the court being indicated as such by the petitioner.

REMEDIAL LAW REVIEWER  Petition shall raise only questions of law which must be distinctly set forth. Contents of petition (Sec. 4)  Full name of the appealing party (petitioner) and the adverse party (respondent).  Without impleading the lower court or judges as petitioners/respondents.  Material dates: - When notice of the judgment or final order or resolution subject thereof was received; - When a motion for new trial or reconsideration (if any) was filed and when notice of the denial thereof was received.  Concise statement of the matters involved, and the reasons/arguments relied on for the allowance of the petition;  A clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition;  Certificate of non-forum shopping. File petition within 15 days from notice:  of the judgment or final order or resolution appealed from, or  of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment.  On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition. [Rule 45, Sec. 2] Rule 45, Sec.3. Docket and other lawful fees; proof of service of petition.—Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. Dismissal or denial of petition Rule 45, Sec.5. Dismissal or denial of petition.—The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. The SC may on its own initiative deny the petition on the ground that the appeal is without merits, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Review is discretionary A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefore. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:  When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC; or  When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. May require pleadings and documents Rule 45, Sec.7. Pleadings and documents that may be required; sanctions.—For purposes of determining whether the petition should be dismissed or denied pursuant to sec.5 of this Rule, or where the petition is given due course under sec.8 hereof, the SC may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. Due course and elevation of records Rule 45, Sec.8. Due course; elevation of records.—If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. MTC to SC  The remedy is a petition for certiorari under Rule 65.  This is not an appeal.

i. Appeal from judgments or final orders of the RTC RTC to CA Under Rule 41, an appeal of judgment or final order under that completely disposes of either:  The case;  A particular matter in the case, when declared by ROC to be appealable. Not appealable under Rule 41  Order denying motion for new trial or reconsideration;  Order denying petition for review or any similar motion seeking relief from judgment;  Interlocutory order;  Order disallowing/dismissing appeal;  Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent;

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 Order of execution;  While the case is pending, judgment or final order: - For/against one or more of several parties; - In separate claims, counterclaims, crossclaims, third-party complaints. Exception: If court allows appeal.  Order dismissing an action without prejudice. In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65. Interlocutory order Definition: If it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. [Investments, Inc. vs. CA (1987)] For purposes of appeal, an order is final if it disposes of the entire case. An order for partial summary judgment is an interlocutory order which cannot be appealed from. The trial court had not yet rendered a complete final judgment. [GSIS vs. Phil. Village Hotel (2004)] Multiple appeals Civil cases which admit of multiple appeals:  Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. When such accounting is submitted and either approved or rejected by the trial court, another appeal lies therefrom.  Special civil actions: - Expropriation; (Rule 67) - Judicial partition; (Rule 69) - Judicial foreclosure of mortgage; (Rule 68) Special proceedings also admit of multiple appeals. Ko vs. PNB (2006): The order of dismissal due to failure to prosecute is appealable by notice of appeal under Rule 41. Philexport vs. PI (2004): But an order of dismissal without prejudice is not appealable under Rule 41. Lanaria v. Planta (2007): Submission of a document together with the motion for reconsideration constitutes substantial compliance with compliance with Section 2, Rule 42 or the requirement that relevant or pertinent documents be submitted along with the petition, and calls for the relaxation of procedural rules RTC to CA to SC The remedy is a petition for review on certiorari under Rule 45. RTC to SC  The remedy is a petition for certiorari under Rule 65.  This is not an appeal.

j. Appeal from judgments or final orders of the CA CA to SC The remedy is a petition for review on certiorari under Rule 65.

k. Appeal from judgments or final orders of the CTA RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45.

l. Review of final judgments or final orders of the COA m. Review of final judgments or final orders of the COMELEC n. Review of final judgments or final orders of the CSC The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule43 of the Rules of Court within fifteen days from notice of the resolution. [DECS v. Cuanan (2008)]

o. Review of final judgments or final orders of the Ombudsman p. Review of final judgments or final orders of the NLRC Rule 43, Sec.2. Cases not covered.—This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian vs. Desierto (1998)]

q. Review of final judgments or final orders of quasi-judicial agencies QJA to CA Applicability Appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions: (arranged alphabetically)  Agricultural Inventions Board (AIB);  Board of Investments (BOI);  Bureau of Patents, Trademarks and Technology Transfer (BPTTT);

REMEDIAL LAW REVIEWER                 

Central Board of Assessment Appeals (CBAA); Civil Aeronautics Board (CAB); Civil Service Commission (CSC); Construction Industry Arbitration Commission; Department of Agrarian Reform (DAR under RA 6657) Employees Compensation Commission (ECC); Energy Regulatory Board (ERB); Government Service Insurance System (GSIS); Insurance Commission; Land Registration Authority (LRA); National Electrification Administration (NEA); National Telecommunications Commission (NTC); Office of the President (OP); Philippine Atomic Energy Commission (PAEC); Securities and Exchange Commission (SEC); Social Security Commission (SSC); Voluntary arbitrators authorized by law.

A resolution of the DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. [Orosa vs. Roa (2006)] Exhaustion of administrative remedies: If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Under Rule 43, Sec. 4 the petition should be filed within 15 days from:  Notice of the final order; or  The date of its last publication, if publication is required by law for its effectivity; or  The denial of the petitioner‘s MFR duly filed according to the governing law of the court or agency a quo. [Villorente vs. Laiya (2005)] Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision. [Basmayor v. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a petition for certiorari is essential to determine whether or not the court, body or tribunal which rendered the same indeed committed grave abuse of discretion. Either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court, tribunal, agency or office involved. This is to assure that such copy is a faithful reproduction of the judgment, order, resolution or ruling subject of the petition. [Coca-cola v. Cabalo (2006)] Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule:  when public welfare and the advancement of public policy dictates;  when the broader interest of justice so requires;  when the writs issued are null and void; or

 when the questioned order amounts to an oppressive exercise of judicial authority. [DECS v. Cuanan (2008)] QJA to CA to SC Remedy is a petition for review on certiorari under Rule 45. QJA to SC Remedy is a petition for certiorari under Rule 65, which is not an appeal.

3. Relief from judgments, orders and other proceedings Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable negligence. Francisco vs. Puno: A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed.

a. Grounds for availing of the remedy Rule 38, Sec.1. Petition for relief from judgment, order, or other proceedings.—When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where there is no other available or adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric vs. CA (1990)) Petition for relief under Rule 38 is an admission that the period to appeal from the decision had already expired. [David vs CA (1992))

b. Time to file petition Rule 38, Sec.3. Time for filing petition; contents and verification.—A petition provided for in either of the preceding sections of this Rules must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set

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aside, and not more than 6 months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner‘s good and substantial cause of action or defense, as the case may be.

4. Annulment of Judgments or final orders and resolutions a. Grounds for annulment b. Period to file action

Both periods must concur. They are also nonextendible and never interrupted.

c. Effects of judgment of annulment

c. Contents of petition

5. Collateral attack of judgments

Rule 38, Sec.2. Petition for relief from denial of appeal.—When a judgment of final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

Remedies from a Void Judgment (Asked in the 2004 BAR EXAMS)

Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case. Prayer in petition for relief from judgment:  That the judgment/order/proceeding be set aside;  That the appeal be given due course. Form and content of petition:  Must be verified;  Must be accompanied by an affidavit showing the fraud, accident, mistake or excusable negligence relied upon;  The affidavit of merit accompanying the petition must also show the facts constituting the petitioner‘s good and substantial cause of action or defense. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. When an affidavit of merit is not necessary:  When there is lack of jurisdiction over the defendant;  When there is lack of jurisdiction over the subject matter;  When judgment was taken by default;  When judgment was entered by mistake or was obtained by fraud; or  Other similar cases. Two hearings in a petition for relief from judgment:  Hearing to determine whether or not the judgment should be set aside;  If option a) is in the affirmative, hearing upon the merits of the case. Other remedies after finality of judgment:  Action to Annul a Judgment  Certiorari  Collateral Attack of a Judgment that is Void on its Face

What is a void judgment? A void judgment is no judgment at all. It cannot be the source of any right nor of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. It may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. A void judgment never acquires finality. A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding effect or efficacy for any purpose or at any place. It cannot affect, impair or create rights. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce. All proceedings founded on the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It, accordingly, leaves the parties litigants in the same position they were in before the trial. A judgment may be void for lack of due process of law. [Spouses Benatiro vs. Heirs of Cuyos (2008)) How do you attack a void judgment? It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro vs. Heirs of Cuyos (2008)) What are your remedies? If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be used. If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment may be resorted to.

REMEDIAL LAW REVIEWER When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. Some jurisprudential basis Remedial Law Jurisprudence such as Spouses Benatiro vs. Heirs of Cuyos, (2008) and Agustin vs. Bacalan, (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner. Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case). Montinola vs. Judge Gonzales (1989): A VOID JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS HEAD. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment. Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause" (Banco Espanol vs. Palanca). A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. (Panlilio vs. Garcia, 119 SCRA 307)

XVII. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS 1. Difference between finality of judgment for purposes of appeal; for purposes of execution 2. When execution shall issue 3. How a judgment is executed 4. Properties exempt from execution 5. Proceedings where property is claimed by third persons 6. Rules on Redemption 7. Examination of Judgment Obligor When Judgment is unsatisfied 8. Examination of Obligor of Judgment Obligor 9. Effect of Judgment or Final Orders 10. Enforcement and Effect of Foreign Judgments or Final Orders

1. Difference between finality of judgment for purposes of appeal; for purposes of execution

The term ―finality of judgment for purposes of appeal‖ refers to interlocutory orders which:  are not decisions within the constitutional definition [Armargo v. CA]  are those that determine incidental matters that do not touch on the merits of the case or put an end to proceedings. The following are examples of an interlocutory order: - an order denying a motion to dismiss; - an order granting an extension of time to file a pleading, or one authorizing an amendment thereof; - order granting or denying applications for postponement or inspection of documents. [Riano] The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan] A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes 'final or, to use the established and more distinctive term, 'final and executory. The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments. Investments, Inc. v. Court of Appeals Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. [Rule 39.1, RoC] It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. It is submitted that upon court‘s issuance of a judgment touching upon the merits of a case, it is final for the purposes of an appeal, but NOT for execution. Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected.

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2. When execution shall issue

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General rule: When the judgment or order becomes executory, the court cannot refuse to issue a writ of execution. Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D):  When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38.5);  When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL;  When the judgment has been NOVATED BY THE PARTIES  When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible  On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE.  When the judgment becomes DORMANT, the 5year period under Rule 39.6 having expired without the judgment having been revived.

a. Execution as a matter of right See Annex D. General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust, a hearing on the motion should be held. [Luzon Surety v. Beson (1976)] General rule: An appeal seasonably perfected shall stay the execution of the judgment, unless discretionary execution is granted by the court. Exceptions: However, judgments in the following action, despite perfection of an appeal, shall be executed, unless the court orders otherwise:  injunction  receivership  accounting  support  such other judgments as shall now or may hereafter be declared to be immediately executory Judgments in these actions shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, UNLESS OTHERWISE ORDERED BY THE TRIAL COURT. General rule: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. [Sec. 6, Rule 39]

After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. The maximum period within which a final and executory judgment may be executed is 20 years (Rule 39.6 in relation to New Civil Code provision on prescription of judgment). Exceptions:  Judgments for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. Benitez] except for support in arrears beyond 10 years from the date they become due;  Contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Blanco];  Issuance of writs of possession in FORECLOSURE CASES within the statute of limitations;  Land registration proceedings (and other special proceedings), hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES

b. Discretionary execution See Annex E. General rule: Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal (Asked in the 2002 Bar Exam). It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it. Exception: This rule, however, is inapplicable in the case of the Court of Appeals.  The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal.  The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN.  Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.

REMEDIAL LAW REVIEWER Heirs of Justice J.B.L. Reyes v. CA (2000): A JUDGMENT OF THE CA CANNOT BE EXECUTED PENDING APPEAL. It is acquired either by the arrest of the accused or by his voluntary appearance in court. General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. Exception: However, THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. Where the needs of the prevailing party are URGENT, the Court can order immediate execution despite such SUPERSEDEAS BOND. [Regalado]

3. How a judgment is executed a. Execution by motion or by independent action b. Issuance and contents of a writ of execution c. Execution of judgments for money (asked in the 2007 Bar Exam) i. Immediate payment on demand Procedure: The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees.  The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e.g., dacion en pago), the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment.  The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.  If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality.  The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall

then deliver said payment to the judgment obligee in satisfaction of the judgment.  The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. ii. Satisfaction by levy Nature: LEVY MEANS THE ACT OR ACTS by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)]. If susceptible of appropriation, the officer REMOVES AND TAKES THE PROPERTY FOR SAFEKEEPING; otherwise the same is placed under sheriff‘s guards. Without valid levy having been made, ANY SALE OF THE PROPERTY THEREAFTER is void. Procedure: If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon:  the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value, and  not otherwise exempt from execution  The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon, sufficient to satisfy the judgment.  If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.  The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon.  When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Levy seizure of property, personal and/or real, belonging to the judgment debtor for subsequent execution sale to satisfy judgment Garnishment is

Garnishment the process of notifying a third person (the garnishee) to retain and attach the property he has in his possession or under his control belonging to the judgment debtor, to make disclosure to the

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REMEDIAL LAW REVIEWER court concerning the same, and to dispose of the same as the court shall direct to satisfy the judgment. (Sec. 9, Rule 39)

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iii. Garnishment of debts and credits Scope: The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the HANDS OF THIRD PERSONS. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega] Procedure: Levy shall be made by SERVING NOTICE UPON THE PERSON OWING SUCH DEBTS OR HAVING IN HIS POSSESSION OR CONTROL SUCH CREDITS TO WHICH THE JUDGMENT OBLIGOR IS ENTITLED. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.  The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor.  The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall BE DELIVERED DIRECTLY TO THE JUDGMENT OBLIGEE within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court.  In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due, otherwise, the choice shall be made by the judgment obligee.  The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee.

d. Execution of judgments for specific acts i. Conveyance, delivery of deeds, or other specific acts

Under this situation, there is a judgment which directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act IN CONNECTION THEREWITH. If the party so ordered fails to comply within a specified period, there are two possible remedies. Either:  the court may DIRECT THE ACT TO BE DONE AT THE COST OF THE DISOBEDIENT PARTY by some other person appointed by the court and the act when so done shall have like effect as if done by the party, or  if real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. ii. Sale of real or personal property If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgment‘s instructions. iii. Delivery or restitution of real property The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee. Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. ANY COSTS, DAMAGES, RENTS OR PROFITS AWARDED BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME MANNER AS A JUDGMENT FOR MONEY. iv. Removal of improvements on property subject of execution When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. v. Delivery of personal property In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.

e. Execution of special judgments When a judgment requires the performance of ANY ACT OTHER THAN THOSE MENTIONED IN THE TWO

REMEDIAL LAW REVIEWER PRECEDING SECTIONS (EXECUTION OF JUDGMENT FOR MONEY AND SPECIFIC ACTS), a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. Special judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e.g., a judgment ordering a partner to render an accounting, a judgment ordering a party to comply with his recording contract otherwise, pay damages). Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party.

f. Effect of levy on third persons

4. Properties exempt from execution General rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (FOTNUPLBS-GMRE)  The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith;  Ordinary tools and implements personally used by him in his trade, employment, or livelihood;  Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;  His necessary clothing and articles for ordinary personal use, excluding jewelry;  Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;  Provisions for individual or family use sufficient for four months;  The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;  One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;  So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family;  Lettered gravestones;  Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

 The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;  Properties specially exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits from private retirement systems of companies and establishments with limitations [RA 4917]; laborer‘s wages except for debts incurred for food, shelter, clothing and medical attendance [ART 1708, CIVIL CODE]; benefit payments from SSS [Section 16, RA 1161 AS AMENDED]) Exception: However, no article or species of property mentioned in this section shall be exempt from:  execution issued upon a judgment recovered for its price, or  upon a judgment of foreclosure of a mortgage thereon. [Herrera v. Mcmicking]: The exemptions MUST BE CLAIMED, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. Return of writ of execution The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. [Section 12, Rule 39] Notice requirement Before the sale of property on execution, notice thereof must be given as follows:  In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the (CPM) municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property;

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 In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days;  In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city;  In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am-2pm). The place of the sale MAY BE AGREED UPON BY THE PARTIES. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. [Section 15, Rule 39] PENALTIES (Selling without notice and defacing notice) An officer selling A person willfully without the notice removing or defacing the prescribed by section 15 notice posted of this Rule pay punitive damages in if done before the sale, the amount of P5,000 to or before the satisfaction any person injured of the judgment if it be thereby, in addition to satisfied before the sale, his actual damages, both shall be liable to pay to be recovered by P5,000 to any person motion in the same injured by reason action thereof, in addition to his actual damages, to be recovered by motion in the same action Preventing execution sale At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. [Section 18, Rule 39]  This is akin to the equitable right of redemption under Rule 68, which is available to the

judgment obligor in judicial foreclosure of mortgage.  The difference lies in the fact that under Rule 68, a definite period is given. Concluding the execution sale When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. [Section 21, Rule 39] By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned [Section 22, Rule 39]. Written consent is essential, otherwise the adjournment will be void [Abrozar v. IAC (1988)] Upon a sale of real property , the officer must give to the purchaser a certificate of sale containing:  A particular description of the real property sold;  The price paid for each distinct lot or parcel;  The whole price paid by him;  A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. [Section 25, Rule 39] How property sold on execution (See table on Service of summons upon different entities)

5. Proceedings where property is claimed by third persons a. in relation to third attachment and replevin

party

claim

in

Remedies of a Third-Party Claimant  Summary hearing before the court which authorized the execution  ―Terceria‖ or third-party claim filed with the sheriff  Action for damages on the bond posted by the judgment creditor  Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy vs. Discaya (1990)] Rules regarding terceria (third-party (ASKED IN THE 2000 & 2005 BAR EXAMS)

claims)

The third person whose property was levied on must make an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. He must serve the same upon the officer making the levy and copy thereof upon the judgment

REMEDIAL LAW REVIEWER obligee. The officer shall not be bound to keep the property as a general rule.  Sheriff is bound to keep the property when the judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied on.  In case of disagreement as to such value of the bond, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed Apart from Rule 39, the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57.14 on preliminary attachment and Rule 60.7 on replevin. Sierra v. Rodriguez and Northern Motors v. Coquia: The third party claimant CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action. Intervention by a third-party claimant whose property had been levied upon by the sheriff in the action from which the writ pursuant to which the levy was made was issued must be made before rendition of judgment by the trial court. He can no longer intervene once the trial court already issues a writ of execution. [Bautista]

6. Rules on Redemption  There is no right of redemption where the property sold at judicial sale is personal property.  Real property sold or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: - The judgment obligor; or his successor in interest in the whole or any part of the property; - A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. [Section 27, Rule 39]  Redemption can be made by either: - JUDGMENT OBLIGOR, within one year from the date of registration of the certificate of sale

- REDEMPTIONER, within one year from the date of registration of the certificate of sale; or within 60 days from the last redemption by another redemptioner. - BUT IN ALL CASES, the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property. - IF THE JUDGMENT OBLIGOR REDEEMS, no further redemption is allowed and he is restored to his estate. - THE PERIOD FOR REDEMPTION IS NOT SUSPENDED by an action to annul the foreclosure sale.  If the certificate of sale is not registered, the period for redemption does not run (Garcia vs. Ocampo). But where parties agreed on the date of redemption, the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. [Lazo v. Republic Surety & Insurance Co., Inc (1970)]  The right of redemption is transferable and may be voluntarily sold [Gomez v. La Germinal] but said right cannot be levied upon by the judgment creditor. The creditor may not deprive the debtor of any further rights to the property [Lichauco v. Olegario]  In effecting redemption, the mortgagor has the duty of tendering payment (actual tender of payment of the redemption price) before the redemption period expires. [Banco Filipino Savings and Mortgage Bank v. CA (2005)] However, neither to make an offer to redeem nor to make tender of payment of the repurchase price is necessary when the right to redeem is exercised through the filing of a complaint to redeem. The filing of an action to redeem within that period is equivalent to a formal offer to redeem. [Vda. de Panaligan v. CA (1996)]  Redemption price varies depending on who the redemptioner is: - If judgment obligor: Purchase price o 1 % interest thereon up to the time of redemption o Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate. o If the purchaser be also a creditor having prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. - If redemptioner: Amount paid on the last redemption o 2% interest thereon. o Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him with interest on such last named amount;

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REMEDIAL LAW REVIEWER o Amount of any liens held by said last redemptioner prior to his own with interest

162

Effects of redemption [Section 29, Rule 39]  If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate.  The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property.  Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale.  The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. [Section 30, Rule 39] A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer  a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered, OR,  if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, OR  an original or certified copy of any assignment necessary to establish his claim; AND  an affidavit executed by him or his agent, showing the amount then actually due on the lien. [Section 31, Rule 39]  Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice;  but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property.  The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant.  All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his

period of redemption. In all, the judgment debtor shall exercise the following rights: - Remain in possession of the property - He cannot be ejected; - Use the property in the same manner it was previously used; - Make Necessary repairs to buildings thereon while he occupies the property - Use it in the ordinary course of husbandry - Collect rents, earnings and income derived from the property until the expiration of period of redemption. [Section 33, Rule 39]  If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or,  if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession;  but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property.  The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it.  Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy.  The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor. Recovery of purchase price and revival of judgment:  A judgment co-debtor may compel a contribution from the others: - When property liable to an execution against several persons is sold thereon, and - more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or - one of them pays, without a sale, more than his proportion,  A surety may compel repayment from the principal: - When a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale. [Section 35, Rule 39]. -

7. Examination of Judgment Obligor When Judgment is unsatisfied


8. Examination Judgment Obligor

of

Obligor

of

Does a Party Litigant Enjoy Any Discovery Rights After the Promulgation of Final and Executory Judgment? Yes. See Secs. 36-38, Rule 39 [Bautista] Remedies of Judgment Creditor in Aid of Execution [Sections 36-43] (Asked in the 2008 Bar Exam particularly steps to be taken if writ of execution is unsatisfied)  If the execution is returned unsatisfied, he may cause the examination of the judgment debtor as to his property and income [Sec. 36] (asked in the 2002 bar exam)  He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession [Sec. 37].  If after examination, the court finds the property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment.  A party or other person may be compelled by an order or subpoena to attend before the court or commissioner to testify as provided in sect 3637. - if the court finds the earnings of the judgment debtor are more than sufficient for his family‘s needs, it may order payment in installments [Sec. 40] - the court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property [Sec. 41] - if the court finds the judgment debtor had an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order a sale of such interest [Sec. 42]. - if the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt [Sec. 43] Entry of satisfaction  Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, - upon the return of a writ of execution showing the full satisfaction of the judgment, or - upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel

- UNLESS a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. [Sec. 44, Rule 39]  Whenever a judgment is satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor, - the judgment obligee or his counsel must execute and acknowledge, or indorse an admission of the satisfaction as provided in the last preceding section, - and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. [Sec. 45, Rule 39]

9. Effect of Judgment or Final Orders RES JUDICATA IN JUDGMENTS IN REM Judgments or final order Against a specific thing Probate of a will or administration of the estate of a deceased person

IN RESPECT TO THE PERSONAL, political, or legal condition or status of a particular person or his relationship to another

Conclusive as to Title of the thing The will or administration. However, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; Condition, status or relationship of the person,

RES JUDICATA IN JUDGMENTS IN PERSONAM In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive:  between the parties and  their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity. CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES (AUTER ACTION PENDANT) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. BAR BY FORMER JUDGMENT (RES JUDICATA) There is identity of parties, subject matter

CONCLUSIVENESS OF JUDGMENT Identity of parties and subject matter.

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and causes of action The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged.

The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted.

REQUISITES OF RES JUDICATA  finality of the former judgment;  the court which rendered it had jurisdiction over the subject matter and the parties  it must be a judgment on the merits  there must be, between the first and second actions, identity of parties, subject matter and causes of action [Perez v. CA (2005)]

 In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact (Rule 39 Sec. 48).  Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts.  This policy of preclusion rests on principles of comity, utility and convenience of nations.  As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause (Section 2, Article II) of the 1987 Constitution [Regalado].

XVIII. PROVISIONAL REMEDIES RES JUDICATA VS. ―LAW OF THE CASE‖ VS. STARE DECISIS [Ayala Corporation v. Rosa-Diana Realty, (2000)] Res Judicata The ruling in one case is carried over to another case between the same parties

―Law of the Case‖ Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent The ruling adhered to in the particular case need not be followed as a precedent in subsequent litigation between other parties

Stare Decisis

1. 2. 3. 4. 5. 6.

Nature of provisional remedies Jurisdiction over provisional remedies Preliminary Attachment Preliminary Injunction Receivership Replevin

1. Nature of provisional remedies

Once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised

10. Enforcement and Effect of Foreign Judgments or Final Orders EFFECT OF FOREIGN JUDGMENTS (Asked in the 2005 Bar Exam)  In case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing (Rule 39, Sec. 48).  In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title (Rule 39 Sec. 48).

Definition Writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies. They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo vs. Roldan, 1946] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.

2. Jurisdiction remedies

over

provisional

All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [B.P. 129]

3. Preliminary Attachment (Asked in the 2002 Bar Exam) Definition: A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the

REMEDIAL LAW REVIEWER satisfaction of whatever judgment may be rendered in the case [Davao Light v CA 204 SCRA 343] Purposes  To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment.  To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [Quasha vs. Juan (1982)]

a. Grounds for issuance of writ of attachment [Rule 57.1] (Asked in 2001 and 2005) A preliminary attachment may be applied for  at the commencement of the action or  at any time before the entry of judgment. It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint) There are only specific situations where preliminary attachment may issue:  Action for recovery of a specified amount of money or damages, EXCEPT moral and exemplary, - on a cause of action arising from law, contract, quasi-contract, delict, or quasidelict - against a party who is about to depart from the Philippines with intent to defraud his creditors;  Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: - a public officer, an officer of a corporation, an attorney, factor, broker, agent, or clerk, in the course of his employment as such, - OR by any other person in a fiduciary capacity, or for a willful violation of duty;  Action to recover the possession of property unjustly or fraudulently taken, detained or converted, - when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; NOTE: rule makes no distinction between real and personal property [Riano]  Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof; NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]

 Action against a party who has removed or disposed of his property, or is about to do so, AND with intent to defraud his creditors; or  Action against a party who does not reside and is not found in the Philippines, OR on whom summons may be served by publication. NOTE: the rule also refers to persons on whom summons may be served by publication and against whose property, preliminary attachment may be availed of such as: - Residents defendants whose identity or whose whereabouts are unknown (Rule 14.14) - Resident defendants who are temporarily out of the country (14.16)

Stages in the grant of preliminary attachment  The court issues the order granting the application  The writ of attachment issues pursuant to the order granting the writ  The writ is implemented For the first two stages, jurisdiction over the person of the defendant is NOT necessary. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant. [Cuartero, supra]

b. Requisites  Case must be any of those where preliminary attachment is proper  Applicant must file a motion (ex parte or with notice and hearing)  Applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced;  Applicant must post an attachment bond executed to the adverse party (Rule 57.3)

c. Issuance and contents of attachment; affidavit and bond

order

of

Issuance and contents of order of attachment [Rule 57.2]  An order of attachment may be issued EITHER - ex parte or - upon motion with notice and hearing by the court in which the action is pending,  It must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order. The amount may be - sufficient to satisfy applicant‘s demand, or - the value of the property to be attached, exclusive of costs.

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 Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.

until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano]

Contents of affidavit of applicant [Rule 57.3] An order of attachment shall be granted only when it appears in the affidavit that:  a sufficient cause of action exists  the case is one of those mentioned in 57.1  there is no other sufficient security for the claim sought to be enforced by the action  the amount due to the applicant or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims.

EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF SUMMONS: [Rule 57.5]  Summons could not be served personally or by substituted service despite diligent efforts, or  Defendant is a resident of the Philippines temporarily absent therefrom, or  Defendant is a non-resident, or  The action is in rem or quasi in rem.

The affidavit and the bond must be filed with the court before the order issues. Condition of applicant’s bond [Rule 57.4] Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay:  all the costs which may be adjudged to the adverse party and  all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto. NOTE: the bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment (Riano).

d. Manner of attaching real and personal property; when property attached is claimed by third person Manner of attaching property [Rule 57.5] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant‘s demand, UNLESS  Party against whom writ is issued makes a deposit with the court from which the writ is issued, or  He gives a counter-bond executed to the applicant The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of:  summons  copy of complaint  application for attachment  affidavit and bond of applicant  order and writ of attachment.

e. Rule on prior or contemporaneous service of summons General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. BUT a writ may not be implemented

Sheriff’s Return [57.6] The sheriff, after enforcing the writ, shall make a return to the court which issued the writ stating the ff:  a full statement of his proceedings under the writ  a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued The sheriff shall serve copies of the return to the applicant. Manner of attachment of real and personal property [Rule 57.7]:  Real property, or growing crops thereon, or any interest therein - filing with the registry of deeds: o a copy of the order, together with a description of the property attached, o notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, - leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof.  Personal property capable of manual delivery - by taking and safely keeping it in the sheriff‘s custody, after issuing the corresponding receipt therefor;  Stocks or shares, or an interest in stocks or shares, of any corporation or company - by leaving with the president or managing agent thereof, o a copy of the writ, and o a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ;  Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual

REMEDIAL LAW REVIEWER delivery - by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, o a copy of the writ, and o A notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ;  Interest of the party whom attachment is issued in property belonging to the estate of the decedent - by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached and - By filing a copy of the writ and notice in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. Note: Property in custodia legis may be attached by:  filing a copy of the writ of attachment with the proper court or quasi-judicial agency  Serving a notice of attachment upon the custodian of the property [Rule 57.7] A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano] Proceedings Where Attached Property Claimed By Third Person A third person who has a claim to the property attached may avail of the following remedies:  By terceria – making an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching procedure [57.14] NOTE: the same procedure under Rule 39.16 is Followed  Motion for summary hearing on his claim  File a separate action to nullify the levy with damages due to the unlawful levy and seizure. The remedies stated are CUMULATIVE and any one of them may be resorted to without availing of the other remedies (Ching v CA 423 SCRA 356)

f. Discharge of attachment and the counterbond Effects of attachment i. Attachment of debts, credits and all other similar personal property [RULE 57.8] –  All persons

- having in their possession or under their control any credits or other similar personal property belonging to the adverse party, or - owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. Garnishment - a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor (asked in the 1999 Bar Exams in comparison with Attachment). It is a warning to a person who has in possession property or credits of the judgment debtor not to pay the money nor deliver the property to latter but to appear and answer the plaintiff‘s suit. Perla Compania v. Ramolete, 1991: Service of summons upon the garnishee is not necessary. All that is necessary is the service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case. ii. Attachment of interest in property belonging to the estate of a decedent [RULE 57.9] –  The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration.  When any petition for distribution is filed, such personal representative shall report the attachment to the court, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sale of attached property Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that  the party attached is perishable, or that  the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. [Rule 57.11] NOTE: This is an exception to the general rule that the issuance of a writ of attachment is only a provisional remedy, thus no sale of the property should be made during the pendency of the action. [Riano]

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Recovery Upon the Counter-Bond; Disposition of Deposit/ Attached Property After Judgment  When the judgment has become executory, the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. [Rule 57.17]  Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.  If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. [Rule 57.18]  If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. [Rule 57.19] Discharge of attachment After a writ of attachment has been enforced, party whose property has been attached, or person appearing on his behalf, may move for discharge of the attachment wholly or in part on security given.

the the the the

Grounds for discharge:  Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57.12];  Attachment was improperly or irregularly issued [Rule 57.13] as where there is no ground for attachment, or affidavit and/or bond filed therefore are defective or insufficient;  Attachment is excessive but the discharge shall be limited to the excess [Rule 57.13];  Property attached is exempt from execution [Rules 57.2 and 57.5];  Judgment is rendered against the attaching creditor [Rule 57.19].

g. Satisfaction of judgment out of property attached Improper, Irregular or Excessive Attachment (Asked in the 2008 bar exam) An application for damages must be filed before the trial, or before appeal is perfected, or before the judgment becomes executory.

Such damages may be awarded only after hearing and shall be included in the judgment on the main case. [Rule 57.20] Procedure for claiming damages is EXCLUSIVE. Such claims for damages cannot be the subject of an independent action. EXCEPTIONS:  Where the principal case was dismissed for lack of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim; and  Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. [Santos v. CA, 95 Phil 360]

4. Preliminary Injunction a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to either  refrain from a particular act or acts or  require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction A suit for injunction is an action in personam. It is an ancillary or preventive remedy that is meant to be temporary and subject to the final disposition of the principal action [Riano] Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Kencht vs CA, 1993] NOTE: the injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them. TRO vs. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise

INJUNCTION Cannot be granted without notice and hearing

 A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. (Bacolod City Water v. Labayen 446 SCRA 110)  Same requirements preliminary injunction.

for

application

as

 An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24

REMEDIAL LAW REVIEWER hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58.4]

General rule: TRO is effective only for a period of 20 days from service on the party or person sought to be enjoined

Status Quo Order vs. Injunction (Asked in the 2006 bar exams) A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order.

Exceptions: If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury: effective for only 72 hours from issuance

It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.

b. Requisites Requirements for preliminary injunction [Rule 58.4]  There must be a verified application  The application must show facts entitling the applicant to the relief demanded. - It must establish he has a right and the act against which the injunction is directed is violative of such right (PNB v Timbol 451 SCRA 163)  A bond must be filed, unless exempted, in the court where the action/proceeding is pending, in an amount to be fixed by the court (asked in the 2006 Bar exam)  Prior notice and hearing for the party/person sought to be enjoined. EXCEPTIONS: - Great or irreparable injury would result to the applicant before the matter can be heard on notice. o The court may issue a TRO effective for 20 days from service on the party sought to be enjoined. o Injury is ―irreparable‖ if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. - Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o Judge may issue ex parte a TRO effective for 72 hours from issuance. o Within 72 hours, judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. o Maximum period of effectivity of TRO=20 days (including 72 hrs) If the application for preliminary injunction is denied or not resolved within said period, the TRO is deemed automatically vacated. EFFECTIVITY OF TRO [58.5]

Issued by: RTC CA SC

Effectivity: 20 days, non-extendible (including the original 72 hours) May be effective for 60 days from service on the party or person sought to be enjoined. May be effective until further orders

c. Kinds of Injunction i. Preliminary preventive injunction – prohibits the performance of a particular act or acts When preventive injunction does not lie:  To restrain collection of taxes (Valley Trading vs CA), EXCEPT where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait vs Rafferty (1915)]  To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband‘s obligation to give support. [Saavedra vs Estrada (1931)]  To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno vs Dictado (1988)]  To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag vs. Lacson (2004)]  Against consummated acts. [PNB vs Adi; Rivera v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal vs CA] EXCEPTION: If the act is of continuing nature and in derogation of plaintiff‘s right at the outset.  Against disposing of the case on the merits [Ortigas and Company Limited Partnership vs CA (1988)]  To stop the execution of judgment where the judgment was already executed. (Meneses vs Dinglasan) EXCEPTION: But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. [Manila Surety and Fidelity vs Teodoro (1967)]  The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. [Ambrosio vs Salvador (1978)]

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 Transfer of possession of property to party with disputed legal title via preliminary injunction

utilization, exploration, and/or development of the natural resources of the Philippines.

EXCEPTIONS:  Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70.15]  Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. (GSIS vs Florendo)

 Sec. 2, PD 385: no restraining order, temporary or permanent injunction shall be issued by the court against any government financial institution in any action taken by such institution in compliance with the mandatory foreclosure whether such restraining order, temporary or permanent injunction is sought by the borrower(s) or any third party or parties, except after due hearing in which it is established by the borrower and admitted by the government financial institution concerned that twenty percent (20%) of the outstanding arrearages has been paid after the filing of foreclosure proceedings.

Other instances where writ is not available:  Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: - Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; - Bidding or awarding of contract/ project of the national government as defined under Section 2 - Commencement prosecution, execution, implementation, operation of any such contract or project; - Termination or rescission of any such contract/project; and - The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.  Sec. 78, RA 9136: the implementation of the provisions of the Electric Power Industry Reform Act of 2001 shall not be restrained or enjoined except by an order issued by the Supreme Court.  Sec. 1, PD 605: no court of the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation,

ii. Preliminary mandatory injunction – requires the performance of a particular act or acts Requisites of mandatory injunction:  Invasion of the right is material and substantial  Right of the complainant is clear and unmistakable  Urgent and paramount necessity for the writ to prevent serious damages [Bautista v. Barcelona, 100 Phil 1078]  The effect would not be to create a new relation between the parties [Alvaro v. Zapata, (1982)] Mandatory injunction does not lie in the following instances:  to compel cohabitation [Arroyo v. Vasquez (1921)]  cancellation of attachment [Levy Hermanos v. Lacson (1940)]  release imported goods pending hearing before the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)]  to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)] INJUNCTION Generally directed against a party in the action Does not involve court‘s jurisdiction

the

May be the main action itself, or just a provisional remedy in the main action

PROHIBITION Directed against a court/tribunal/person exercising judicial powers may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction Always a main action

d. When writ may be issued e. Grounds for issuance injunction [Rule 58.3] (ASKED IN THE 2006 BAR EXAM)

of

preliminary

REMEDIAL LAW REVIEWER  Applicant is entitled to the relief demanded, and the relief consists in - restraining the commission or continuance of the acts or acts complained of, or - in requiring performance of an act or acts;  Commission, continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant; or  A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. Rule 58 Provides for both a Main Action for Injunction and an Ancillary Writ of Preliminary Injunction (Asked in the 2006 Bar Exam) INJUNCTION Main action

seeks a embodying injunction

judgment a final

Based on all evidence gathered by court to determine main action

PRELIMINARY INJUNCTION Ancillary; exists only as part or incident of an independent action or proceeding sole object of which is to preserve the status quo until the merits can be heard based solely on initial and incomplete evidence

As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. The evidence needed to establish the requisites for a preliminary injunction need not be conclusive or complete. It is generally based on initial, incomplete evidence that gives the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. . NOTE: It does not necessarily proceed that when a writ of preliminary injunction is issued, a final injunction will follow [Urbanes vs. CA (2001)]

f. Grounds for objection to, or for the dissolution of injunction or restraining order Grounds for Objection to/Motion for Dissolution of Injunction/Restraining Order [Rule 58.6]  Insufficiency of application  other grounds (e.g. applicant‘s bond is insufficient/defective), upon affidavits of the party or person enjoined  if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party/person enjoined, while the applicant can be fully compensated for such damages as he may suffer, provided the former files a bond

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. Global Injunction of a Foreign Court (Asked in the 2007 Bar Exam) A global injunction issued by a foreign court to prevent dissipation of funds against the defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our procedural laws (Suggested Answers to the 2007 Bar Exam, UP Law Center) As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order of a tribunal of another country. However, under the rules of comity, utility and convenience, nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. [St. Aviation Services vs. Grand International Airways (2006)] Note: In Pangalangan and Coquia’s book on Conflict of Laws (2000), citing Cheshire, it was stated that an interlocutory or provisional judgment of a foreign court, creates no obligation on the forum court to enforce it.

h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts:  Acquisition, clearance and development of the right-of-way and/or site or location of any national government project;  Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof;  Commencement prosecution, execution, implementation, operation of any such contract or project;  Termination or rescission of any such contract/project; and  The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a

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constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.

5. Receivership (Asked in the 2001 Bar Exam) Nature Receiver: person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. Purpose: The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. (Riano). Commodities Storage v. CA (1997): The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. Arranza v. B.F. Homes (2000): Receivership is aimed at the preservation of, and at making more secure, existing rights; it cannot be used as an instrument for the destruction of those rights.

a. Cases when receiver may be appointed  When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;  When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;  After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the

judgment, or otherwise to carry the judgment into effect;  Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. [Rule 59.1] Specific situations when a receiver may be appointed  If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101]  The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39.41]  After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41.9; Acuña v. Caluag (1957)]  After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)]  Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)] Alcantara v. Abbas (1963): The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. Abrigo v. Kayanan (1983): A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.

b. Requisites c. Requirements before issuance of an Order Requisites and Procedure  Verified application filed by the party requesting for the appointment of the receiver;  Applicant must have an interest in the property or funds subject of the action;  Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated;  Application must be with notice and must be set for hearing;  Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall file a bond then take his oath.  Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.

REMEDIAL LAW REVIEWER Who appoints receiver  court where the action is pending  CA  SC  During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Rule 59.1] Denial of application or discharge of receiver  If the appointment sought or granted is without sufficient cause  Adverse party files a sufficient bond to answer for damages [Rule 59.3]  Bond posted by the applicant for grant of receivership is insufficient  Bond of receiver is insufficient

d. Powers of a receiver  Bring and defend in such capacity actions in his own name with leave of court  Take and keep possession of the property in controversy  Receive rents  Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver  Compound for and compromise the same  Make transfers  Pay outstanding debts  Divide the money and other property that shall remain among the persons legally entitled to receive the same‘  Generally, to do such acts respecting the property as the court may authorize  Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59.6] No action may be filed against a receiver without leave of the court which appointed him. Liability for refusal or neglect to deliver property to receiver  Contempt; and  Be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59.7]

e. Two (2) kinds of bond  Applicant‘s bond  Receiver‘s bond

f. Termination of receivership Ground: the necessity for a receiver no longer exists Procedure:  motu proprio or on motion of either party

 notice to all interested parties and hearing [Rule 59.8] Effect:  Settle accounts of receiver  Delivery of funds to person entitled  Discharge of receiver  Receiver entitled to reasonable compensation to be taxed as costs against defeated party.

6. Replevin (Asked in the 1999 Bar Exam) a. When may writ be issued Nature Replevin may be a main action or provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is considered as a suit in itself. Replevin under Rule 60 is the provisional remedy. [Riano] REPLEVIN Available only where the principal relief sought in the action is recovery of personal property, the other reliefs (e.g. damages) being merely incidental thereto. Can be sought only where the defendant is in actual or constructive possession of the personalty involved. Extends only to personal property capable of manual delivery. Available to recover personal property even if the same is not concealed, removed or disposed of.

Cannot be availed of if the property is in custodia legis (e.g. under attachment, seized under a search warrant). EXCEPT:  when the seizure is illegal; [Bagalihog v. Fernandez (1991)] and  where there is reason to believe that the seizure will not anymore be

PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action. May be resorted to even if the personalty is in the custody of a third person. Extends to all kinds of property, whether real, personal or incorporeal. To recover the possession of personal property unjustly detained (presupposed that the same is being concealed, removed or disposed of to prevent its being found or taken by the applicant. Can still be resorted to even if the property is in custodia legis.

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followed by the filing of the criminal action in court or there are conflicting claims. [Chua v. CA (1993)]

b. Requisites Application Who may apply: party praying for the recovery of possession of personal property. Applicant need not be the owner. It is enough that he has right to its possession. (Yang vs Valdez, 177 SCRA 141) When:  at the commencement of the action or  before the answer [unlike attachment, injunction and support pendente lite (anytime before final judgment) and receivership (anytime even after final judgment)]. The applicant must show by his own affidavit or that of some other person who personally knows the facts:  That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;  That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;  That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and  The actual market value of the property. [Rule 60.2] Bond The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60.2]

c. Affidavit and bond; Redelivery Bond Please refer to immediately preceding subsection for discussion on affidavit and bond. Redelivery bond: The adverse party may, at any time before the delivery of the property to the applicant, require the return of the property by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant‘s affidavit. [Rule 60.5] Order of Replevin Upon the filing of affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. [Rule 60.3]

A writ of replevin may be served anywhere in the Philippines.

d. Sheriff’s duty in the implementation of the writ; when property is claimed by third party Disposition of Property by Sheriff  The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond.  If after 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. [Rule 60.6]  The defendant is entitled to the return of the property under a writ of replevin if: - He seasonably posts a redelivery bond [Rule 60.5] - Plaintiff‘s bond is found to be insufficient or defective and is not replaced with proper bond - Property is not delivered to the plaintiff for any reason [Rule 60.6] Where Property Claimed by Third Person When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60.2; the court shall determine the value in case of disagreement). No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond.

XIX. SPECIAL CIVIL ACTIONS 1. Nature of special civil actions 2. Ordinary civil actions versus special civil actions 3. Jurisdiction and venue 4. Interpleader 5. Declaratory Reliefs and Similar Remedies 6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA 7. Certiorari, Prohibition and Mandamus 8. Quo Warranto 9. Expropriation 10. Foreclosure of Real Estate Mortgage 11. Partition 12. Forcible Entry and Unlawful Detainer 13. Contempt

1. Nature of special civil actions

REMEDIAL LAW REVIEWER Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter. [Rule 1.3] Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [Riano] How commenced:  COMPLAINT - interpleader - expropriation - foreclosure of real estate mortgage - partition - forcible entry and unlawful detainer  PETITION - declaratory relief - review of adjudications of Constitutional commissions - certiorari - prohibition - mandamus - quo warranto - contempt Writs of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions. [B.P. 129]

2. Ordinary civil special civil actions

actions

versus

The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. [Riano] Ordinary Civil Action Governed by ordinary rules

Special Civil Action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71)

Some concepts applicable to ordinary civil actions are not applicable in special civil actions. E.g.:  the definition of a cause of action requiring violation of a right does not appear to be relevant to the special civil action of declaratory relief and interpleader;  ordinary civil actions may be filed initially in MTC or RTC depending on jurisdictional amount while some special civil actions can only be filed in MTC (forcible entry and unlawful detainer) and some cannot be commenced in MTC (certiorari, prohibition, mandamus). [Riano]

3. Jurisdiction and venue Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions.

3 special civil actions within the jurisdiction of inferior courts:  interpleader, provided the amount involved is within its jurisdiction [Makati Development Corp. v. Tanjuatco (1969)]  ejectment suits [Rule 70]  contempt [Rule 71]

4. Interpleader Definition: A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, 1969] Purpose  To compel conflicting claimants to interplead and litigate their several claims among themselves. [Rule 62.1]  To protect a person against double vexation in respect of one liability [Beltran, supra]

a. Requisites for interpleader  There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff.  The plaintiff has NO CLAIM upon the subject matter of the adverse claims, or if he has an interest at all, such interest is NOT DISPUTED by the claimants.  The subject matter of the adverse claims must be one and the same. Procedure Complaint filed by the person against whom conflicting claims are or may be made. [ibid] The docket and other lawful fees paid by the complainant, and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action, unless otherwise ordered by the court. [R62.7]  Court order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct that the subject matter be paid or delivered to the court. [Rule 62.2]  Summons, copy of complaint and order served upon the conflicting claimants. [Rule 62.3]  Each claimant shall file his answer within 15 days from service of the summons, serving a copy thereof upon each of the other conflicting claimants, who may file their reply thereto.  If claimant fails to plead within the time herein

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fixed, the court may, on motion, declare him in default and render judgment barring him from any claim in respect to the subject matter.  Within the time for filing an answer, each claimant may file a motion to dismiss. Grounds:  impropriety of the interpleader action, or  other appropriate grounds specified in Rule 16 The period to file the answer shall be tolled.  If the motion is denied, an answer may be filed within the remaining period, in no case less than 5 days (reckoned from notice of denial) [Rule 62.4].  The parties may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto. [Rule 62.5]  Pre-trial  Court shall determine conflicting claimants‘ respective rights and adjudicate their several claims. [Rule 62.6]

Prosecutor or attorney of the LGU Sol Gen

Baguio Citizens Action vs. City Council of Baguio (1983): Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. Commission of Customs vs. Cloribel (1977): A third-party complaint is not available in a declaratory relief. Visayan Packing vs. Reparations Commission (1987): A compulsory counterclaim may be set up in a petition for declaratory relief. Where filed  in the proper RTC [Rule 63.1]  not within the original jurisdiction of the Supreme Court, even if pure questions of law are involved. [Remotigue vs. Osmeña (1967)]

b. Requisites of action for declaratory relief

b. When to file Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants. [Rule 62.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].

5. Declaratory Reliefs and Similar Remedies a. Who may file the action  a person interested under a deed, will, contract or other written instrument  a person whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation [Rule 63.1] Parties  all persons who have or claim any interest which would be affected by the declaration [Rule 63.2]  If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63.3]  If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63.4] Subject Matter Validity of a statute, EO or regulation, or any governmental regulation

Validity of a local government ordinance Constitutionality of a local government ordinance

Notice Given To Sol Gen

 subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance [Rule 63.1];  the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v. Aquino, 94 Phil 65]  no breach of the documents in question. [Reparations Commission v. Northern Lines (1970)] Otherwise, an ordinary civil action is the remedy. - Concept of a cause of action in ordinary civil actions does not apply. - If before the final termination of the case, a breach or violation of an instrument or a statute, etc. should take place, the action may be converted into an ordinary action. [Rule 63.6]  actual justiciable controversy [Velarde v SJS (2004)]  adverse interests between the parties - A declaratory relief is not available for a declaration of citizenship [Villa-Abrille vs. Republic (1956)] or the validity of a registration certificate [Obiles vs. Republic (1953)] as they are unilateral in nature and without conflicting adverse interests.  issue must be ripe for judicial determination [Velarde v SJS (2004)]  adequate relief is not available through other means or other forms of action or proceedings. [Ollada v. Central Bank (1962)] - A court decision cannot be the subject of a declaratory relief since there exists other remedies, i.e., appeal or a motion for clarificatory judgment [Tanda vs. Aldaya (1956)]

c. When court may refuse to make judicial declaration

REMEDIAL LAW REVIEWER  where a decision would not terminate the uncertainty or controversy which gave rise to the action, or  where the declaration or construction is not necessary and proper under the circumstances. [Rule 63.5]

d. Conversion to ordinary action Requisites:  before the final termination of the case  a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place Effect: The parties shall be allowed to file such pleadings as may be necessary or proper. [Rule 63.6]

e. Proceedings remedies

considered

as

similar

i. Reformation of an instrument (Arts. 1359-1369 Civil Code) Definition: Art. 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. Art. 1369. The procedure for the reformation of instrument shall be governed by rules of court to be promulgated by the Supreme Court ii. Consolidation of ownership (Art. 1607 Civil Code) [Rule 63.1 par. 2] Definition: Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. iii. Quieting of title to real property (Arts. 476-481 Civil Code) Definition: Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud

from being cast upon title to real property or any interest therein. Art. 481. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgated.

6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA Scope  Applicable only to judgments and final orders of the COMELEC and COA [Rule 64.1]  Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95]  An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64.2] Such petition for certiorari shall not stay the execution of the judgment, etc. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64.8] Procedure File a petition for review. When [Rule 64.3]:  Within 30 days from notice of judgment/final order/resolution sought to be reviewed  Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period. If motion is denied, aggrieved party may file petition within remaining period, which shall not be less than 5 days from notice of denial. Form [Rule 64.5]: verified and accompanied by (annexes):  a clearly legible duplicate original or certified true copy of the subject judgment, etc.  certified true copies of such material portions of the record referred to in the petition  other documents relevant and pertinent to the petition  proof of service of a copy of the petition on the Commission and the adverse party  proof of the timely payment of the docket and other lawful fees in 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) Contents [Rule 64.5]:  name of aggrieved party (petitioner)  respondents: Commission concerned and person(s) interested in sustaining the judgment a quo  facts  issues involved  grounds and brief arguments relied upon for

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review  prayer for judgment annulling or modifying the question judgment, etc.  material dates showing that it was filed on time  certification against non-forum shopping Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable. Failure to comply with foregoing requirements shall be sufficient ground for dismissal.  Order to Comment [Rule 64.6] If the SC finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within 10 days from notice thereof. Grounds for dismissal:  Petition not sufficient in form and substance  Petition was filed manifestly for delay  the questions raised are too unsubstantial to warrant further proceedings.  Comments of Respondents [Rule 64.7] Requirements:  original copy with certified true copies of material portions of the record as are referred to in the comment and certified true copies of other supporting papers  18 legible copies with plain copies of all documents attached to the original  Copy of the comment shall be served on the petitioner.  Decision [Rule 64.9] Case is deemed submitted for decision upon:  filing of the comments on the petition, and such other pleadings or papers as may be required or allowed.  expiration of the period to file the pleadings. Exceptions: SC sets the case for oral argument or requires parties to submit memoranda.

a. Application of Rule 65 under Rule 64

is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days reckoned from the notice of denial.

7. Certiorari, Mandamus

Prohibition

and

The original action of certiorari is not a substitute for appeal. [Lobite vs. Sundiam 1983] Exceptions:  appeal is not a speedy and adequate remedy [Salvadores vs. Pajarillo (1947)]  the orders were issued either in excess of or without jurisdiction [Aguilar vs. Tan (1970)]  special considerations, i.e., public welfare or public policy [Jose vs. Zulueta (1961)]  the order is a patent nullity [Marcelo vs. De Guzman (1982)]  the decision in the certiorari case will avoid future litigations [St. Peter Memorial Park vs. Campos (1975)] NOTE: In the 2005 and 2008 Bar Exams, bar examinees were asked to compare Petition for review on Certiorari and Certiorari. Certiorari Suarez v. NLRC (1998): Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. Medran vs. CA (1949): Findings of fact of CA are not binding upon SC in an original action for certiorari. Prohibition Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado]

b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officers

Enriquez v. Macadaeg, 84 Phil 674: Prohibition is the remedy where a motion to dismiss is improperly denied.

Rule 64 Directed only to the judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of the judgment The filing of a MR or a Motion for New Trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion

Mandamus A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review.

Rule 65 Directed to any tribunal, board, or officer exercising judicial or quasi-judicial functions Filed within 60 days from notice of the judgment The period within which to file the petition if the MR or new trial is denied, is 60 days from notice of the denial of the motion.

However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado]

REMEDIAL LAW REVIEWER General rule: In the performance of an official duty or act involving discretion, such official can only be directed by mandamus to act but not to act in one way or the other. EXCEPTION: gross abuse of discretion, manifest injustice, palpable excess of authority [Kant Wong v. PCGG (1987)]

 JUDGMENT If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled.

Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. HOWEVER, if the question is one of public right, it is sufficient to show that the petitioner is a citizen. [Tanada v. Tuvera (1985)]

The court, however, may dismiss the petition if it finds the same to be (1) patently without merit, (2) prosecuted manifestly for delay, or that (3) the questions raised therein are too unsubstantial to require consideration. [Rule 65.8]  SERVICE AND ENFORCEMENT OF ORDER OR JUDGMENT A certified copy of the judgment rendered shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt.

a. Definitions and distinctions b. Requisites c. When petition for certiorari, prohibition and mandamus is proper See Annex F. Procedure FILE PETITION FOR CERTIORARI / PROHIBITION / MANDAMUS. When filed:  Not later than 60 days from notice of judgment/order/resolution  If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion.  Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65.4] Where filed:  Supreme Court  Court of Appeals - If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules.  Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person.  Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65.4]  ORDER TO COMMENT If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65.6]  HEARING OR MEMORANDA After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65.8]

An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. [Rule 65.9]

d. Injunctive relief Rule 65.7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]

e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition CERTIORARI DISTINGUISHED FROM APPEAL CERTIORARI APPEAL Proper to correct errors Proper where error is not of jurisdiction one of jurisdiction but an committed by lower error of law or fact courts, grave abuse of which is a mistake of discretion which is judgment tantamount to lack of jurisdiction Certiorari invokes Appeal when filed original jurisdiction of invokes the appellate the court jurisdiction of the court Within 60 days from Filed within period of notice of judgment, appeal order or resolution An original and Continuation of the independent action original case Impleads the tribunal, Parties to an appeal are court, board or officer the original parties of the case PROHIBITION DISTINGUISHED FROM INJUNCTION PROHIBITION INJUNCTION Directed to the court or Directed against a party tribunal directing it to to the action

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Quo warranto is the remedy to try disputes with respect to the title to a public office.

refrain from the performance of acts which it has no jurisdiction to perform MANDAMUS DISTINGUISHED FROM INJUNCTION MANDAMUS INJUNCTION Special civil action Ordinary civil action Directed against a Directed against a tribunal, corporation litigant board or officer Purpose is for the Purpose is for the tribunal, corporation, defendant either to board or officer to refrain from an act or to perform a ministerial perform not necessarily a and legal duty legal and ministerial duty Purpose is to perform a Purpose is to prevent an positive legal duty and act to maintain the not to undo what has status quo between the been done parties

f. Exceptions to filing of motion reconsideration before filing petition

Filed by whom Where filed

ROC Rule 66 Solicitor General or Public Prosecutor in behalf of the Republic; Individual By SolGen: RTC Manila, CA or SC; Otherwise, RTC with jurisdiction over territorial area where respondent resides, CA or SC

for

General rule: A motion for reconsideration must first be availed of before certiorari – to enable the lower court to correct its mistakes without the intervention of the lower courts. [BA Finance vs. Pineda (1982)] Exceptions:  the order is a patent nullity [Vigan Elec. Light vs. Public Service Commission (1964)]  the questions raised in the certiorari have been duly raised and passed upon by the lower court [Fortich-Celdran vs. Celdran (1967)] or are the same as those raised and passed upon in the lower court [Pajo vs. Ago (1960)]  there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government [Vivo vs.Cloribel (1966)]  the MR would be useless [People vs. Palacio (1960)]  the petitioner was deprived of due process and there is extreme urgency for relief [Luzon Surety vs. Marbella (1960)]  the proceeding was ex parte in which the petitioner had no opportunity to object [Republic vs. Maglanoc (1963)]  the issue raised is purely a question of law or where the public interest is involved [PALEA vs. PAL (1982)]

g. Reliefs petitioner is entitled to h. Actions/Omissions of MTC/RTC in election cases i. Where to file petition j. Effects of filing of an unmeritorious petition

8. Quo Warranto

a. Distinguish from Quo Warranto in the Omnibus Election Code

Period for filing Against whom, grounds

Within 1 year from ouster, or from the time the right to the position arose A person, who usurps, intrudes into or unlawfully holds or exercises a public office, position or franchise;

OEC Sec. 253 Any voter

COMELEC, if against election of a Member of Congress, Regional, Provincial or City Officer; appropriate RTC or MTC, if against a municipal or barangay officer Within 10 days after proclamation of results Ineligibility disloyalty to Republic

or the

A public officer, who does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office How commenced By a verified petition [Rule 66.1] By whom/against whom

b. When the government commences an action against individuals  By Government, brought in the name of the Republic of the Philippines, against: - A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise - A public officer who does not or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office - An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act [Rule 66.1]  When Solicitor General or public prosecutor MUST commence action:

REMEDIAL LAW REVIEWER - When directed by the President of the Philippines. - When upon complaint or otherwise, he has good reason to believe that any case specified in Sec. 1 can be established by proof. [Rule 66.2]  When Solicitor General or public prosecutor MAY commence action: - with permission of the court - at the request and upon the relation of another person - Officer bringing such action may first require an indemnity for the expenses and costs of the action in an amount approved by and deposited in court. [Rule 66.3]

 The complaint shall join as defendants all persons owning or claiming to own, or occupying any part thereof or any interest therein, showing as far as practicable the separate interest of each defendant.  The following must be clearly stated in the complaint , if applicable: - If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals; - If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. [Rule 67.1]

c. When individual may commence an action

b. Two stages expropriation

By a person claiming to be entitled to a public office or position, brought in his own name, against another who usurped or unlawfully held or exercised such public office or position [Rule 66.5]

i. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts.

d. Judgment in Quo Warranto action

This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. [Municipality of Biñan v. Garcia (1989)]

When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position, or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator recover his costs. [Rule 66.9]

e. Rights of a person adjudged entitled to public office If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. [Rule 66.10]

9. Expropriation a. Matters to expropriation

allege

in

complaint

for

The complaint for expropriation must be VERIFIED. Contents:  The right and purpose of expropriation  Description of the real or personal property sought to be expropriated;

in

every

action

for

It includes an inquiry into the propriety of the expropriation – its necessity and public purpose. [Riano] ii. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first. Ansaldo v. Tantuico (1990): There is taking when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. Bardillon v. Bgy. Masili (2003): An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of RTCs, regardless of the value of the subject property.

c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974 Sec. 4. of RA 8974 otherwise known as ―An Act to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects and for the purposes‖: [w]henever it is necessary to acquire real property for the right-of-

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way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines:  Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100% of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof;  In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal valuation for said area; and  In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof. Upon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. Riano opines that Sec. 2 of Rule 67 is deemed modified by RA 8974. He noted the following differences: Rule 67 Before issuance of writ of possession Expropriation proceedings initiated by the national government

RA 8974 Upon filing of the complaint Right-of-way, site or location of national government infrastructure projects

Initial deposit with an authorized government depositary Amount for deposit equivalent to 100% assessed value of the property for purposes of taxation.

Immediate payment to the property owner Amount to be paid is:  100% of the value of the land as stated in the tax declaration or current zonal valuation, whichever is higher, and the value of improvements, OR  in the case of utmost urgency, the proffered value of the property to be seized

d. New system of immediate payment of initial just compensation

See table of comparison under the preceding subsection, column of RA 8974.

e. Defenses and objections

What to file and serve Period to file Contents

NO OBJECTION OR HAS OBJECTION DEFENSE TO THE OR DEFENSE TO TAKING THE TAKING Notice of Answer to the appearance and complaint manifestation Time stated in the summons Manifestation to the effect that he has no objection or defense; Specifically designating/identif ying the property in which he claims to be interested

Prohibit ed

Specifically designating/identif ying the property in which he claims to have an interest in and the nature and extent of the interest; ALL his objections and defenses to the complaint or any allegation therein Counterclaim, cross-claim, third party complaint in any pleading

A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof. At the trial of the issue of just compensation, whether the defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. [Rule 66.3]

f. Order of Expropriation It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. It is issued by the court in which the complaint for expropriation is filed when:

REMEDIAL LAW REVIEWER  objections or defenses of the defendant have been overruled, or  the defendant raised no such defense or objection, or  No party appears to defend. [Rule 67.4]

g. Ascertainment of just compensation Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. Determined as of the date of taking of the property, or the filing of the complaint, whichever came first. [Rule 67.4] The measure is not the taker‘s gain, but the owner‘s loss. To compensate is to render something which is equal in value to that taken or received. The word ―just‖ is used to intensify the meaning of the word ―compensation‖; to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, and ample. In eminent domain or expropriation proceedings, the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. Market value is ―that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore.‖ [BPI v. CA (2004)]

EXCEPTION: when the parties agree otherwise, the commissioners cannot view and examine the property - The commissioners shall assess the consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or person taking the property. - In no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. [Rule 67.6]  The commissioners shall make full and accurate report to the court of all their proceedings. - The report shall be filed within 60 days from the date the commissioners were notified of their appointment. - Upon filing of the report, the clerk of court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if the parties desire. [Rule 67.7]  After the 10-day period for objecting to the commissioners‘ report, the court, after hearing, may: - ACCEPT the report and render JUDGMENT in accordance therewith; - RECOMMIT the report to the commissioners for further report of facts; - SET ASIDE the report and APPOINT new commissioners; - ACCEPT the report IN PART and REJECT it IN PART;

Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. [Rule 67.5]

And make such order or render judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. [Rule 67.8]

h. Appointment of Commissioners; Commissioner’s report; Court action upon commissioner’s report

i. Rights of plaintiff upon judgment and payment

Order of appointment to be served on the parties. Objections to the appointment of any of the commissioners shall be filed in court within ten (10) days, and shall be resolved within thirty (30) days after all the commissioners have received copies of the objections. Powers and duties of commissioners:  Parties can present evidence before the commissioners and the latter have the power to administer oaths or hearings before them;  They can, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings and may measure the same;

 Right to enter upon the property expropriated and appropriate it for the public use or purpose as stated. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under Sec. 2. [Rule 67.10]  Right to enter upon the property even pending appeal. The right of the plaintiff to enter upon the property of the defendant and appropriate

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REMEDIAL LAW REVIEWER the same for public use or purpose shall not be delayed by an appeal from the judgment.

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The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. [Rule 67.13]

j. Effect of recording of judgment When real estate is expropriated, a certified copy of the judgment entered in expropriation proceedings shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest to plaintiff the title to the real estate so described for such public use or purpose. [Rule 67.13]

10. Foreclosure of Real Estate Mortgage (Asked in the 2003 Bar Exam) The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made:  judicially – governed by Rule 68  Extrajudicially – proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 99-10-05-0. Monte de Piedad v. Rodrigo, 56 Phil 301: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved.

a. Judgment on foreclosure for payment or sale Judgment PAYMENT: If upon the trial, the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (―equity of redemption‖). SALE: In default of such payment the property shall be sold at public auction to satisfy the judgment. [Rule 68.2]

b. Sale of mortgaged property; effect  When the defendant fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. - It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified. - A motion for such order of sale is non-litigable and may be made ex parte. [Gov’t of P.I. v De las Cajigas, 55 Phil 667]  Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and  When confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.  POSSESSION: Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property, unless a third party is actually holding the same adversely to the judgment obligor.  The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. [Rule 68.3]  The purchaser is entitled to a writ of possession and it is ministerial upon the court to issue a writ of possession in his favor upon an ex parte motion. [Barican, et al v Caguioa, et al, (1986)]

c. Disposition of proceeds of sale Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order):  Costs incurred in the sale of property  Claim of the person foreclosing the property  Claims of junior encumbrancers in the order of their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers, if any  the residual amount shall be given to the mortgagor or his agent, or to the person entitled to it. [Rule 68.4] If the proceeds of the sale is less than the amount of the claims to be satisfied, the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale, to recover the amount of the deficiency in his claim.

d. Deficiency judgment i. Instances when court cannot render deficiency judgment

REMEDIAL LAW REVIEWER Definition: A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due; also termed a deficiency decree. (Black’s Law Dictionary) General rule: Sec. 6 provides for a deficiency judgment which shall be rendered, on motion, when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment. In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of the Philippine Islands v. Torralba Vda. de Santos (1935)] If the debtor dies, the deficiency may be filed as a claim against his estate. [Rule 86.7] EXCEPTIONS:  Third Party Mortgagor - No deficiency judgment may be rendered where the mortgage was executed by a third person to secure the obligation of a debtor, such third person not having assumed personal liability for the debt. The remedy is an ordinary action against the debtor. [Philippine Trust Co. v. Echaus Tan Siusa (1929)]  Extrajudicial Foreclosure - There can be no deficiency judgment because there was no judicial proceeding in the foreclosure. Recovery can be made through a separate action. [DBP v Mirang (1975); DBP v Zaragosa, 1978; PNB v CA (1999)]

e. Judicial foreclosure versus extrajudicial foreclosure JUDICIAL FORECLOSURE Governed by the Rules of Court Involves the filing of an independent action Equity of redemption EXCEPT if the foreclosure is in favor of banks as mortgagees, a Right of redemption exists There could be a deficiency judgment

Recovery of deficiency is by mere motion for a deficiency judgment

EXTRAJUDICIAL FORECLOSURE Governed by Act 3135 as amended Does not require filing of an action Right of redemption

No deficiency judgment because there is no judicial proceeding BUT deficiency can be recovered Recovery of deficiency is by an independent action

Registration [RULE 68.7] A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds. IF NO RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

IF A RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall NOT be cancelled, but the Certificate of Sale and the order confirming the sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title

IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title.

IF THE PROPERTY IS NOT REDEEMED The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser.

f. Equity of redemption versus right of redemption EQUITY OF REDEMPTION Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. [Limpin v. Intermediate Appellate Court (1988)]

The mortgagor may exercise his equity of redemption in judicial foreclosure before the sale is confirmed by the court (Raymundo v

RIGHT OF REDEMPTION Right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust, under which the property is sold, to redeem the property within 1 year from the registration of the sheriff‘s certificate of foreclosure sale. [De Castro v. Intermediate Appellate Court [1988)] The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after

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EQUITY OF REDEMPTION Sunico, 1913; Rosales v Suba, 2003). No right of redemption is recognized in a judicial foreclosure, except only where the mortgagee is the Philippine National Bank or a bank or banking institution. [Huerta Alba Resort, Inc. v. CA (2000)]

RIGHT OF REDEMPTION registration of the foreclosure sale. It exists only in the case of the extrajudicial foreclosure of the mortgage.

Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption, it retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v Amores (1985]]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale.

11. Partition Partition of property may be:  Extrajudicial – by agreement  Judicial – compulsory; governed by Rule 69 Even if the parties resorted to judicial partition, they may still make an amicable partition of the property. [Secs. 2 and 12]

a. Who may file complaint; who should be made defendants Filed by person having the right to compel the partition of real estate, [Sec. 1], or of personal property, or of both real and personal property. [Sec. 13] The plaintiff is the person who is supposed to be a co-owner of the property. The defendants are all the co-owners, who are indispensable parties. Sepulveda v. Pelaez (2005): All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. Exceptions to the Right to Ask for Partition:  When there is a stipulation against it, not exceeding 10 years [Art. 494 CC]  When partition is prohibited by the donor or testator for a period not exceeding 20 years [Art. 494, 1083 CC]  When partition is prohibited by law (e.g. ACP, party wall) [Art. 494 CC]  When the property is not subject to a physical division and to do so would render it

unserviceable for the use for which is it intended [Art. 495 CC] or  When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084 CC]

b. Matters to allege in the complaint for partition Contents of complaint for partition  Nature and extent of the complainant‘s title  Adequate description of the real estate of which the partition is demanded  All other persons interested in the property must be impleaded. [Rule 69.1]

c. Two (2) stages in every action for partition i. Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals (1976)] If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA (1994)] ii. The actual partitioning of the subject property This is also a complete proceeding and the order or decision is appealable. When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA (1999)] Crucillo v. IAC, 1999: Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. Maglucot-aw et al. v. Maglucot et al. (2000): Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of

REMEDIAL LAW REVIEWER partition may be presumed. Recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. Where a tract of land held in common has been subdivided into lots, and one of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears. Venue Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. If several distinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces. [Pancho v. Villanueva, 99 Phil 611]

d. Order of agreement

partition

and

partition

by

Order of partition After trial, if the court finds that the plaintiff has the right to the property subject of partition, it shall issue an order demanding the partition of the real estate among all the parties in interest. [Sec. 2] (Refers to 1st stage of partition) Partition by agreement After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves.  If they agree, proper instruments of conveyance will be executed to effect the partition.  After the execution of instruments of conveyance, the court shall confirm the partition through a final order.  The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69.2]  If they do not agree, there will be a partition by commissioners. A party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. [Rule 69.8]

A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. [Rule 69.2]

e. Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court action upon commissioner’s report Appointment of commissioners If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Rule 69.3] Duties of Commissioners [Rule 69.4]:  view and examine the real estate, after due notice to the parties to attend at such view and examination  hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof  set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. General rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. [Rule 69.5] Commissioner’s report The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties or the sale of the same. Upon filing the report, the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners‘ report and rendered judgment thereon. [Rule 69.6] Upon the expiration of the 10-day period, or even before the expiration of such period but after the

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interested parties filed their objections to the report/statement of agreement, the court, upon hearing, may:  ACCEPT the commissioners‘ report and render JUDGMENT based upon it.  RECOMMIT the report to the commissioners for further report of facts if there is cause to do the same  SET ASIDE the report and APPOINT new commissioners  ACCEPT the report IN PART and REJECT it IN PART  Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value, if the property is assigned or sold between the several owners thereof. [Rule 69.7]

adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova, 102 Phil 1182] in which case, acquisitive prescription may set in.

f. Judgment and its effects

a. Definitions and Distinction

IF ACTUAL PARTITION IS PROPERLY MADE

IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT

CONTENTS OF JUDGMENT Judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party. Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment.

EFFECTS OF JUDGMENT Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him.

Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. Judgment shall Judgment shall state the name vest the real of the purchaser estate in the or purchasers purchaser(s), and a definite making the description of payment(s) free the parcels of from the claims real estate sold of any parties to to each the action. A certified copypurchaser of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69.11]

g. Partition of personal property The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. [Rule 69.13]

h. Prescription of action The right of action to demand partition does not prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT where one of the interested parties openly and

If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]

12. Forcible Entry and Unlawful Detainer (Asked in the 2000 Bar Exam in Relation to a Pending Action for Specific Performance)

Forcible Entry  Resorted to when a person is deprived of possession of any land or building by (1) force, (2) intimidation, (3) strategy, (4) threat, or (5) stealth. (FISTS)  Must be brought at any time within 1 year after such unlawful deprivation in the proper MTC against the person unlawfully depriving him of possession or against any person or persons claiming under them.  Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1]  The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it.  They must file the appropriate action in court and should not take the law into their own hands. [Laurora v. Sterling Technopark (2003)] Unlawful Detainer  Resorted to when a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession by virtue of an express or implied contract.  May also be brought by the legal representative or assigns of any such lessor, vendor, vendee, or other persons.  Must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them.  Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] FORCIBLE ENTRY Possession becomes unlawful right from the very start (i.e. from the time of entry) as he acquires possession by FISTS.

UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal, as when the lease contract has expired and the lessee refuses to vacate the premises despite

REMEDIAL LAW REVIEWER The deprivation of physical possession of land and building is effected through force, intimidation, strategy, threat or stealth (FISTS). The issue centers on who was in prior possession de facto. Previous demand upon defendant to vacate not required. The plaintiff must allege and prove that he was in prior physical possession of the premises until deprived thereof. 1-year period counted from date of actual entry on the land.

demand. The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract, express or implied. The issue centers on whether the defendant‘s right to possess has expired or not. Previous demand to vacate required (jurisdictional). The plaintiff need not be in prior physical possession. 1-year period counted from date of last demand or last letter of demand.

b. Distinguished from accion publiciana and accion reinvindicatoria i. Accion Interdictal  the summary action for forcible entry (detentacion)  where the defendant‘s possession of property is illegal ab initio, or  the summary action for unlawful detainer (desahucio) where the defendant‘s possession was originally lawful but ceased to be so by the expiration of his right to possess,  both of which must be brought within one year from the date of actual entry to the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer,  in the proper MTC or MeTC Nature:  special civil action involving realty;  subject to the Rules on Summary Procedure; [Rule 70.3]  under the original exclusive jurisdiction of first level courts;  nature of the action is determined by the allegation of the complaint and the character of the relief sought; [Abrin v. Campos (1991)]  one co-owner may institute the action. ii. Accion Publiciana A plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. iii. Accion Reivindicatoria Also called accion de reivindicacion, it seeks the recovery of ownership and includes the jus utendi and the jus fruendi, which must be brought in the proper regional trial court.

It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. [Javier v. Veridiano (1994)]

c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria A/P and A/R are actions involving title to or possession of real property or an interest therein  RTC has jurisdiction where the assessed value of the property exceeds P20K or, in MM, P50k  MTC has jurisdiction if the assessed value does not exceed said amounts

d. Who may institute the action and when; against whom the action may be maintained Who may File, When, Against Whom Who: A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person When: At any time within 1 year after such unlawful deprivation or withholding of possession in the proper MTC Against Whom: The person or persons unlawfully withholding or depriving of possession, OR any person or persons claiming under them [Rule 70.1]

e. Pleadings allowed Pleadings must be verified. [Rule 70.4] Allowed pleadings [Rule 70.4]:  Complaint  Compulsory Counterclaim pleaded in the answer  Cross-claim pleaded in the answer  Answer

f. Action on the complaint From the examination of the allegations in the complaint and such evidence as may be attached thereto, the court may:  DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint, or  ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70.5] Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70.12]

g. When demand is necessary

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In cases of unlawful detainer, the action by the lessor shall be commenced only after:  demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or  by serving written notice of such demand upon the person found on the premises, or  by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. [Rule 70.2] EXCEPTIONS (prior demand not required):  Where purpose of the action is to terminate the lease by reason of the expiry of its term, and is not for failure to pay rentals or comply with the terms of the lease contract. [De Santos v. Vivas, 96 Phil 538]  When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. [Guanson v. Ban, 77 Phil 7]  When the defendant is not a tenant but a mere intruder. [id] Jakihaca v. Aquino (1990): Demand upon a tenant may be oral. Dakudao v. Consolacion (1983): A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. Muñoz v. CA (1992): This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over 1 year, and only thereafter filed forcible entry suit following demand to vacate. Refugia v. CA (1996): Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. Zobel v. Abreu (1956): When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give 2 demands (which may be embodied in 1 demand letter):  demand to pay rental or comply with conditions of the lease, and if this is not complied with,  demand to vacate Yap v. Cruz (1992): Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the lease. Penas, Jr. v. CA (1994): An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer.

Uy v. CA (1989): Refusal to collect or accept rentals is not a defense. There must be consignation. Procedure Filing of complaint.  After the court has examined the allegations in the complaint and supporting evidence attached to the same, the court may:  DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint, or  ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70.5] Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70.12]  The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. [Rule 70.6] Failure of the defendant to answer within the period provided above shall give power to the court, motu propio or on motion, to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. [Rule 70.7] Affirmative and negative defenses and cross-claims and compulsory counterclaims not pleaded in the answer are deemed waived. EXCEPTION: lack of jurisdiction over the subject matter.  Answers to the counterclaims or cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded.  Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy relations. [Bayog v. Natino (1996)] If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB). [Baranda v. Padios (1987)]  Not later than 30 days after the last answer is filed, a PRELIMINARY CONFERENCE shall be held. Rule 18 applicable. Effects of failure to appear:  When the plaintiff does not appear - It shall be a cause for dismissal of his complaint - All cross-claims shall be dismissed - The defendant who appears in the absence of the plaintiff shall be entitled to the judgment on his counterclaim  When the defendant does not appear - The plaintiff shall be entitled to judgment (This is true when there is only one defendant or when all of the defendants did not appear)

REMEDIAL LAW REVIEWER General rule: No postponement of the preliminary conference shall be granted. Exception: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. [Rule 70.8]  The court shall issue an ORDER stating matters taken up during the preliminary conference within 5 days after the termination of the same. Contents of the Order:  Whether the parties have arrived at an amicable settlement, and if so, terms thereof;  The stipulations or admissions entered into by the parties;  Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order;  A clear specification of material facts which remain controverted;  Such other matters intended to expedite the disposition of the case. [Rule 70.9]  The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order. [Rule 70.10] Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. [Rule 70.14]  Judgment GENERAL RULE: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. [Rule 70.11] EXCEPTION: Should the court find it necessary to clarify certain material facts, it may during the 30day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. [Ibid.] The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. [Id.]

If the trial court finds that the allegations of the complaint are TRUE, it shall render judgment in favor of the plaintiff for  restitution of the premises,  the just sum due as arrears of rent or reasonable compensation for the use and occupation of the premises.  attorney‘s fees and costs. [Rule 70.17] If the court finds that the allegations of the plaintiffs are NOT TRUE, it shall render judgment for the defendant to recover his costs. [Ibid.] The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. The judgment or final order shall be appealable to the appropriate RTC. [Rule 70.18]  Execution of judgment GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70.19 and 70.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Lu v. Siapno (2000): Although immediately executory, the judge should not order immediate execution in his decision. Kaw v. Anunciacion (1995): There must be notice of the judgment and a motion with notice to the adverse party.

h. Preliminary injunction and preliminary mandatory injunction Preliminary injunction The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession may move for a preliminary mandatory injunction within 5 days to restore him in his possession of the property. The court then shall decide the motion within 30 days from the filing thereof. [Rule 70.15]

i. Resolving defense of ownership When ownership is raised as a defense, the court may resolved the issue of ownership but only under these conditions:  When the issue of possession cannot be resolved without resolving the issue of ownership; and  The issue of ownership shall be resolved only to determine the issue of possession [Rule 70.16].

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192

When the defendant asserts ownership over the property, the inferior court is not divested of its jurisdiction [Rural Bank of Sta. Ignacia, Inc v Dimatulac] The judgment rendered in an action for forcible entry or unlawful detainer shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. [Rule 70.18] Matters Not Constituting Prejudicial Question to Ejectment [Arcal vs. Court of Appeals (1998)]  Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level [Nacorda v. Yatco (1996)] do not abate the latter, and neither do proceedings on consignation of rentals [Lim Si v. Lim (1956)]  An ‗accion publiciana’ does not suspend an ejectment suit against the plaintiff in the former [Ramirez v. Bleza (1981)].  A ‗writ of possession case‘ where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises [Heirs of F. Guballa, Sr. v CA (1988)].  An action for quieting of title to the property is not a bar to an ejectment suit involving the same property [Quimpo v. de la Victoria (1972)].  Suit for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of lease contract) [Desamito v. Cuyegkeng (1966)]; (Asked in the 2000 Bar Exam)  An action for reformation of instrument (e.g. from deed of absolute sale to one of sale with pacto de retro ) does not suspend an ejectment suit between the same parties [Judith v. Abragan (1975)].  An action for reconveyance of property or ‗accion reivindicatoria‘ also has no effect on ejectment suits regarding the same property [Del Rosario v. Jimenez (1963)].  Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property [Salinas v. Navarro - annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage (1983); Ang Ping v. RTC - annulment of sale of title (1987); Caparros v. C.A. annulment of title (1989); Dante v. Sison annulment of sale with damages 174 SCRA 517; Galgala v. Benguet Consolidated, Inc. annulment of document (1989)].

j. How to stay the immediate execution of judgment

GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70.19 and 70.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Procedure for staying the execution of judgment:  defendant perfects his appeal in due time;  defendant files a sufficient supersedeas bond approved by the Municipal Trial Court; and  during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, on or before the 10th day of each succeeding month. [Rule 70.19] BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant‘s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. [Rule 70.20]

k. Summary procedure, prohibited pleadings Prohibited pleadings and motions [Rule 70.13]:  Motion to dismiss EXCEPTIONS: - Motion to dismiss based on lack of jurisdiction over the subject matter - Motion to dismiss for failure to comply with section 12 (referral to Lupon for conciliation)  Motion for a Bill of Particulars  Motion for New Trial  Motion for reconsideration of a judgment  Motion for reopening of trial  Petition for relief from judgment  Motion for extension of time to file pleadings, affidavits or other papers  Memoranda  Petition for Certiorari, Mandamus or Prohibition against any interlocutory order issued by the court  Motion to declare defendant in default  Dilatory motions for postponement  Reply  Third-party complaints  Interventions

13. Contempt Definition Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the court‘s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.

REMEDIAL LAW REVIEWER [Heirs of Trinidad de Leon Vda. de Ramos v. Court of Appeals (2004)]

a. Kinds of contempt  Accdg to the Manner of Commission - Direct - Indirect  Accdg to Nature - Civil - Criminal

b. Purpose and nature of each Direct Contempt (Contempt In Facie Curiae) A misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same, including:  disrespect toward the court  offensive personalities toward others  refusal to be sworn or to answer as a witness or to subscribe an affidavit/deposition when lawfully required to do so. It can be punished summarily without hearing. It is conduct directed against or assailing the authority and dignity of the court or a judge, or in the doing of a forbidden act. [Encinas v. National Bookstore (2005); Rule 71.1] Indirect Contempt (Constructive Contempt) A misbehavior perpetrated outside of the sitting of the court. [Patricio v. Suplico (1991)] Acts of indirect contempt:  Misbehavior of an officer of the court in the performance of his official duties or in his official transactions;  Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;  Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt;  Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;  Assuming to be an attorney or an officer of the court, and acting as such without authority;  Failure to obey a subpoena duly served;  The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3] TWO ASPECTS OF CONTEMPT OF COURT:

 Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. [People v. Godoy, 1995]; remedial or compensatory in nature; instituted for the benefit of private party.  Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. Godoy, 1995]; punitive in nature, thus, the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. Recto, 1999]. SEC v. Recto (1999): The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. Crucillo v. IAC (1999): A writ of execution issued by a court after 5 years from entry of final judgment is void, and disobedience thereto does not constitute indirect contempt. Panado v. CA (1998): The power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. But this must be wielded sparingly. For this power should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. LandBank v. Listana (2003): Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for noncompliance, and, therefore, whether a contempt has been committed. The power to determine the existence of contempt of court rests exclusively with the court contemned. No court is authorized to punish a contempt against another. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the RTCs.

c. Remedy against direct contempt; penalty d. Remedy against indirect contempt; penalty

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194

e. How contempt commenced

proceedings

are

See Annex G. Procedure for Indirect Contempt [Secs. 4-6] WHO COURT PARTY INITIATES MOTU PROPIO How it is By ORDER or By a VERIFIED PETITION initiated any WRITTEN with supporting CHARGE particulars and requiring certified true copy of respondent documents or papers to show involved and full cause why he compliance with the should not requirements for filing be held in initiatory pleadings in contempt. ordinary civil actions. Where it When the contempt is directed against is initiated

Hearing and Bail Appeal Execution of Judgment

an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court:  RTC of the place where the lower court is sitting; or  in same lower court subject to appeal to higher court If hearing is not immediately conducted, respondent may be released upon filing of BOND in the amount fixed by the court. Appeal may be taken in proper courts as in criminal cases. Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal.

f. Acts deemed contempt

punishable

as

indirect

 Misbehavior of an officer of the court in the performance of his official duties or in his official transactions;  Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;  Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt;  Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;  Assuming to be an attorney or an officer of the court, and acting as such without authority;

 Failure to obey a subpoena duly served;  The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3]

g. When imprisonment shall be imposed When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. [Rule 71.8]. The respondent ―carries the keys to his prison in his own pocket.‖ [Galvez v. Republic Surety & Insurance Co., Inc, 105 Phil. 944] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v Limsiaco, Jr.] Rule 71.8 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. The non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [Regalado]

h. Contempt against quasi-judicial bodies Rule 71 applies to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. Where to file: RTC of the place wherein the contempt has been committed. [Rule 71.12] - It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v Listana (2003)] Rule 71.12 confers contempt powers on all QuasiJudicial entities or supplements their rules, unless the applicable law provides otherwise. Acts or violations against quasi-judicial bodies punishable as contempt: where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [People v. Mendoza, 92 Phil 570, §13, Ch. 3, Bk VII, Admin Code of 1987]

REMEDIAL LAW REVIEWER Annex A 1.

Service on person associated in an entity without juridical personality [Rule 14, Sec. 8]

2.

Service upon minors and incompetents [Rule 14, Sec. 10]

3.

Service upon prisoner [Rule 14, Sec. 9] Service upon domestic private juridical entity [Rule 14, Sec. 11]

4.

5.

Service upon foreign private juridical entity [Rule 14, Sec. 12]

6.

Service upon corporations [Rule 14, Sec. 13]

7.

Extraterritorial service [Rule 14, Sec. 15]

8.

Service upon a resident temporarily out of the Philippines [Rule 14, Sec. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14, Sec. 14]

9.

public

If sued under the name by which they are commonly known – Serve upon either: 1) Any/all the defendants; 2) Person in charge of the office The service does not bind individually any person whose connection with the entity was already severed before the service Serve upon the minor/incompetent and on his legal guardian.  If there is no guardian, plaintiff may apply for the appointment of a guardian ad litem.  If minor, may serve on his parents. Serve upon the officer having management of the jail/prison Serve upon either the: 1) President 2) Managing partner 3) General manager 4) Corporate secretary 5) Treasurer 6) In-house counsel Serve upon the resident agent; Otherwise, upon either: 1) Government official designated by law; 2) Any officer or agent of the corporation within the Philippines If the defendant is the Republic of the Philippines – Serve upon the OSG If the defendant is a province/city/municipality or like public corporations – Serve upon the executive head or other officers as the law/court may direct Requisites: (Asked in the 1997 and 2008 Bar Exam) 1) Defendant does not reside or is not found in the Philippines; 2) Action either: a) Affects the plaintiff‘s personal status; b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; d) Has defendant‘s property in the Philippines, attached. Modes of service: 1) With leave of court, serve outside the Philippines by personal service; or 2) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendant‘s last known address; 3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. With leave of court, may serve extraterritorially

With leave of court, by publication in a newspaper of general circulation

195

REMEDIAL LAW REVIEWER Annex B

196

SUBPOENA DUCES TECUM Process requiring a person to bring with him any books, documents, documents, or other things under his control or possession.

Nature

To whom directed When it may be asked Issued by whom

When issued W/N it is necessary to show good cause Grounds for quashal

Consequence disobedience

of

To any person Only during trial Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request to the clerk (no notice) NO  unreasonable, oppressive, irrelevant, or  the person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued

ORDER FOR PRODUCTION OR INSPECTION Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party,  of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged,  which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, or Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. Only to a party Before and/or during trial Issued by the court where the action is pending

Issued upon motion (application with notice to the other party) YES No good cause shown

See Sec. 3, Rule 29

REMEDIAL LAW REVIEWER Annex C PROVISION HIGHLIGHTS Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to answer any question upon oral examination  the examination may be completed on other matters or  adjourned as the proponent of the question may prefer. The proponent may thereafter apply (i.e., by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court of the place where the deposition is being taken, for an order to compel an answer.

APPLICABILITY PARTY OR DEPONENT /WITNESS IN  RULE 23 (depositions de bene esse),  RULE 24 (depositions in perpetua rei memoriam)  RULE 25. INTERROGATORIES TO PARTIES

IF THE APPLICATION IS GRANTED  the court shall require the refusing party or deponent to answer the question or interrogatory, and  if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees. IF THE APPLICATION IS DENIED and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. Section 2. Contempt of court. If a party or other witness  refuses to BE SWORN OR  refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY FOR: An order  that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party,  or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; An order  refusing to allow the disobedient party to support or oppose designated claims or defenses or  prohibiting him from introducing in evidence designated documents or things or items of testimony, or  from introducing evidence of physical or mental condition; An order  striking out pleadings or parts thereof, or  staying further proceedings until the order is obeyed, or  dismissing the action or proceeding or any part thereof, or  rendering a judgment by default against the disobedient party; and IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. Section 4. Expenses on refusal to admit. If a party after being served with a request under Rule 26  refuses to admit the genuineness of any document or the truth of any matter of fact and  serves a sworn denial thereof, and  if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact

PARTY OR WITNESS IN  RULE 23 (depositions de bene esse),  RULE 24 (depositions in perpetuam rei memoriam) PARTY or an OFFICER OR MANAGING AGENT OF A PARTY in RULE 23, 24, 25 who refuses to obey an order made under RULE 29 Section 1 PARTY who refuses to obey an order under RULE 27 to produce any document or other thing for inspection, or to permit entry upon land PARTY who refuses to obey an order made under RULE 28 requiring him to take a physical examination (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY)

PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY

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198

PROVISION HIGHLIGHTS  he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL BE ISSUED. SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, The court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule

APPLICABILITY

PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) RULE 25 INTERROGATORIES TO PARTIES

Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who represents the Republic in an official capacity) to pay.

REMEDIAL LAW REVIEWER Annex D JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding)

If no appeal has been perfected, or the period of appeal has expired

Prevailing Party applies (by motion) for a writ of execution, whic h is granted by the judge since it is a matter of right

199

If an appeal has been perfected and duly resolv ed, there are two ways by whic h execution can be carried out

Prevailing party files a motion in the court of origin, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party1.

The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.

REMEDIAL LAW REVIEWER Annex E

200

Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be.

Situation 2: Trial court has lost jurisdiction

In Situation1, prevailing party files a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. In Situation2, prevailing party files the motion for execution pending appeal in the appellate court.

Discretionary execution may be granted only for GOOD REASONS to be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given m ay be proceeded against on motion with notice to the surety

IN CASE the judgment w hic h was executed pending appeal is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of dam ages as equity and justice m ay w arrant under the circumstances

REMEDIAL LAW REVIEWER Annex F CERTIORARI (Asked in 2000 and 2006 Bar Exams)  When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted: - without or in excess of its jurisdiction; or - with grave abuse of discretion amounting to lack or excess of its or his jurisdiction1  AND there is no appeal, or any plain, speedy, and adequate remedy2 in the ordinary course of law. (R65.1) To correct an act performed by the respondent Discretionary acts Aggrieved person Those exercising judicial or quasijudicial functions  Verified  alleging the facts with certainty  PRAYER: that judgment be rendered annulling or modifying the proceedings of such tribunal, etc., and granting such incidental reliefs as law and justice may require.  accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

PROHIBITION Grounds  When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions, are - without or in excess of its or his jurisdiction; or - with grave abuse of discretion amounting to lack or excess of its or his jurisdiction  AND there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. (R65.2) Purpose To prevent the commission or carrying out of an act Act sought to be controlled Discretionary and ministerial acts Petitioner Aggrieved person Respondent3 Those exercising judicial and/or non-judicial functions Form of petition  verified  alleging the facts with certainty  PRAYER: that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.  accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

MANDAMUS (Asked in the 2006 Bar Exam)  When any tribunal, corporation, board, officer or person - unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or - unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled  AND there is no other plain, speedy and adequate remedy in the ordinary course of law. (R65.3) To compel the performance of the act desired Ministerial acts Aggrieved person Those exercising judicial non-judicial functions

and/or

 verified  alleging the facts with certainty  PRAYER: that judgment be rendered commanding the respondent, immediately or some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.  contains a certificate of nonforum shopping.

1

Without jurisdiction Excess of jurisdiction Grave abuse of discretion

If respondent does not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment

A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. [Silvestre vs. Torres (1946)] 2

When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx 3

If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65.5]

201


202

Annex G Direct Contempt How Committed Nature of Proceedings

Punishment

How proceedings commenced

Remedy

Indirect Contempt

Can be committed only in the presence of or so Can be committed anywhere as long as the near a court or judge. acts mentioned in Sec. 3 are done. The person guilty of misbehavior is summarily The person guilty of misbehavior may be adjudged by the court against which the punished only after charge in writing has been contempt was committed at the very moment filed, and an opportunity given to the accused of the perpetration. to be heard by himself or counsel [Rule 71.3] [Rule 71.1] If the contempt is directed against an RTC, a court of equivalent or higher rank: FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or IMPRISONMENT = not exceeding 10 days; or IMPRISONMENT = not exceeding 6 months; or both both If the contempt is directed against a lower court: FINE = not exceeding P200; or FINE = not exceeding P5,000; or IMPRISONMENT = not exceeding 1 day; or both IMPRISONMENT = not exceeding 1 month; or [Rule 71.1] both [Rule 71.7] Summarily adjudged by the court against which  By the court motu propio thru an ORDER or the contempt is directed and punished there any formal charge and then.  In all other cases, by a VERIFIED PETITION. [Rule 71.1] (If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact, but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.) [Rule 71.4] No appeal, but subject to certiorari or May be appealed to the proper court as in prohibition. criminal cases, but execution shall not be [Rule 71.2] suspended until BOND is filed. [Rule 71.11]

CRIMINAL LAW REVIEWER

203


2012

REMEDIAL

Evidence BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages


LAW REMEDIAL LAW TEAM 2012 Subject Head | Eden Mopia Evidence Subject Head | Arianne Cerezo Contributors | Gianna Maria Comsti • Rose Andrea Milaor • Armando Mislang, Jr. • Rafaella Carmela Reyes • Elaine Tiu LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes


Evidence

204 Criminal Procedure Civil Procedure Evidence Special Proceedings

REMEDIAL LAW General Principles Judicial Notice and Judicial Admissions III. Object (Real) Evidence IV. Documentary Evidence V. Testimonial Evidence VI. Offer and Objection I. II.

I. GENERAL PRINCIPLES A. Concept of Evidence B. Scope of the Rules of Evidence C. Evidence in Civil Cases vs. Evidence in Criminal Cases D. Proof Versus Evidence E. Factum Probans Versus Factum Probandum F. Admissibility of Evidence G. Burden of Proof and Burden of Evidence H. Presumptions I. Liberal Construction of the Rules of Evidence J. Quantum of Evidence (Weight And Sufficiency of Evidence)

A. Concept of Evidence The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [sec. 1, Rule 128]

B. Scope of the Rules of Evidence GENERAL RULE: Principle of uniformity Rules of evidence shall be the same in all courts and in all trials and hearings. [sec. 2, Rule 128] EXCEPTIONS: If otherwise provided by: (1) Law (e.g., 1987 Constitution, statutes); (2) Rules of Court. [sec. 2, Rule 128]

C. Evidence in Civil Cases Versus Evidence in Criminal Cases In Civil Cases Preponderance of evidence [sec. 1, Rule 133] Offer of compromise NOT an admission of any liability [sec. 27, Rule 130]

Presumption innocence NOT apply

of does

In Criminal Cases Proof beyond reasonable doubt [sec. 2, Rule 133] Offer of compromise by the accused may be received in evidence as an implied admission of guilt (except for quasi-offenses or those allowed by law to be compromised) [sec. 27, Rule 130] Presumption of innocence a constitutional guarantee on the accused [sec. 14, Art. III]

D. Proof Versus Evidence Proof NOT the evidence itself, but the probative effect of evidence

Evidence The medium or means by which a fact is proved or disproved

E. Factum Probans Versus Factum Probandum Factum Probans Facts or material evidencing the proposition The evidentiary fact tending to prove the fact in issue

Factum Probandum The proposition to be established The fact in issue and to which the evidence is directed

Classification of evidence  Object, documentary, and testimonial Object Addressed to the senses of the court. [Rule 130, Sec. 1]

Documentary Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, sec. 2]

Testimonial Testimony or deposition of a witness

 Direct and circumstantial evidence Direct Evidence Proves the fact in dispute without the aid of any inference or presumption

Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established

 Positive and negative evidence Positive Evidence Witness affirms that a fact did or did not occur

Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e.g., denial)

F. Admissibility of Evidence Requisites for admissibility of evidence Evidence is admissible when it is (1) relevant to the issue AND

REMEDIAL LAW REVIEWER (2) not excluded by law or the ROC. [Rule 128, Sec. 3]

Relevance of evidence and collateral matters Relevancy Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. [Sec. 4, Rule 128] Collateral matters – matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue General Rule: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128] Exception: When it tends in any reasonable degree to establish the im/probability of fact in issue. [Sec. 4, Rule 128] NOTE: What is prohibited by the Rules is not evidence of all collateral matters, but evidence of irrelevant collateral facts. Competence Evidence not excluded by (i) law or (ii) the ROC. Exclusionary rules of evidence by law are either constitutional or statutory. Constitutional Unreasonable searches and seizures; privacy of communication and correspondence. [secs. 2-3, Art. III]

Miranda Rights: right to counsel, prohibition of torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition of secret detention places, solitary, incommunicado. [sec. 12, Art. III]

No person shall be compelled to be a witness against himself. [Sec.17,Art.III]

Statutory Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled. [Sec. 201, NIRC] Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasijudicial/legislative/ administrative hearing or investigation. [Secs. 1 and 4, R.A. 4200 (WireTapping Act)] Rules on Electronic Evidence [sec. 1,Rule 9,]

 Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence.  As distinguished from credibility of evidence Competence Eligibility of evidence to be received as such

Credibility Worthiness of belief; ―believability‖

Doctrines of admissibility Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence shall be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor. Conditional admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received, provided that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out. Curative admissibility Where the court has admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf.

Direct and circumstantial evidence Direct Evidence Proves the fact in dispute without the aid of any inference or presumption

Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established

Positive and negative evidence Positive Evidence Witness affirms that a fact did or did not occur

Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e.g., denial)

Competent and credible evidence Competence Eligibility of evidence to be received as such

Credibility Worthiness of belief; ―believability‖

205


206

G. Burden of Proof and Burden of Evidence

The prosecution must not rely on the weakness of the evidence of the defense. [Ubales v People (2008); People v Hu (2008)]

Burden of Proof Duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law [Sec. 1, Rule 131] Does not shift throughout the trial

Preponderance of evidence

Generally determined by the pleadings filed by the party

Burden of Evidence Duty of a party to go forward with the evidence to overthrow any prima facie presumption against him/her [Bautista v Sarmiento (1985)] Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by the developments at the trial, or by the provisions of substantive or procedural law

H. Presumptions 1. Conclusive presumptions 2. Disputable presumptions Conclusive Presumption becomes irrebuttable upon presentation of the evidence

Disputable Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence [sec. 3, Rule 131]

I. Liberal Construction of the Rules of Evidence Like all other provisions under the ROC, rules of evidence must be liberally construed. [sec. 6, Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. [sec. 2, Rule 2, Rules on Electronic Evidence]

J. Quantum of Evidence (Weight And Sufficiency of Evidence) Proof beyond reasonable doubt Applicable quantum of evidence in criminal cases [sec. 2, Rule 133] Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. [sec. 2, Rule 133] The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the accused to prove his/her innocence. [Boac v People (2008)]

Applicable quantum of evidence in civil cases [sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMC-Urban Property Developer, Inc.(2005); Bank of the Philippine Islands v Reyes (2008)] In determining preponderance of evidence, the court may consider: (1) All the facts and circumstances of the case; (2) The witnesses‘ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the im/probability of their testimony; (3) The witnesses‘ interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; (4) Number of witnesses (although preponderance is not necessarily equated with the number of witnesses). [sec. 1, Rule 133]

Substantial evidence Degree of evidence required in cases filed before administrative or quasi-judicial bodies [sec. 5, Rule 133] The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion [sec. 5, Rule 133]

Clear and convincing evidence Standard of proof required in granting or denying bail in extradition cases [Government of Hongkong Special Administrative Region v Olalia, Jr. (2007)] Intermediate in character – lower than proof beyond reasonable doubt, but higher than preponderance of evidence

II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS A. B. C. D.

What Need Not be Proved Matters of Judicial Notice Judicial Admissions Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance

A. What Need Not be Proved (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions

REMEDIAL LAW REVIEWER (3) may be verbal or written. [sec. 4, Rule 129] [NOTE: Discussed in detail in the succeeding subsections.]

B. Matters of Judicial Notice Mandatory (Without need of introduction of evidence) (1) Existence and territorial extent of states; (2) Their political history, forms of government, and symbols of nationality; (3) Law of nations; (4) Admiralty and maritime courts of the world and their seals; (5) Political constitution and history of the Philippines; (6) Official acts of the legislative, executive and judicial departments of the Philippines; (7) Laws of nature; (8) Measure of time; and (9) Geographical divisions. [Sec. 1, Rule 129]

Discretionary (1) Matters of public knowledge; (2) Matters capable of unquestionable demonstration; and (3) Matters ought to be known to judges because of their judicial functions. [sec. 2, Rule 129] Judicial notice is NOT judicial knowledge. With Respect to Court’s Own Acts and Records: A court MAY take judicial notice of its own acts and records in the same case. [Republic v Court of Appeals (1997)] With Respect to Records of Other Cases 



General Rule: Courts CANNOT take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo (1965)] Exceptions: (1) When there is no objection, with the knowledge of the opposing party, the contents of said other case are clearly referred to and adopted or read into the record of the latter; or (2) When the original or part of the records of the case is actually withdrawn from the archives at the court‘s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case [Tabuena v. CA (1991)]

C. Judicial Admissions Requisites To be a judicial admission, the same: (1) must be made by a party to the case; (2) must be made in the course of the proceedings in the same case; and

Effect of judicial admissions

207

(1) It does NOT require proof. [sec. 4, Rule 129] (2) It is conclusive upon the party making it, and hence, CANNOT be contradicted. [sec. 4, Rule 129] An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extrajudicial admission requiring a formal offer to be admissible. [Torres v CA (1984)] A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. [Alfelor v Halasan (2006]

How judicial contradicted

admissions

may

be

As an exception to the general rule, judicial admissions may be contradicted only by showing that: (1) It was made through palpable mistake; (2) No such admission was made.

Conclusive presumptions Instances of Conclusive Presumptions [Sec. 2, Rule 131] (1) Whenever a party has, by his own declaration/act/omission, intentionally and deliberately led another to believe a particular thing is true and to act upon such belief, he cannot, in any litigation arising out of such declaration/act/omission, be permitted to falsify it. (2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

As Distinguished from Presumptions [Sec. 3, Rule 131]

Disputable

(1) Person is innocent of a crime or wrong; (2) Unlawful act is done with an unlawful intent; (3) Person intends the ordinary consequences of his voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse if produced; (6) Money paid by one to another was due to the latter; (7) Thing delivered by one to another belonged to the latter; (8) Obligation delivered up to the debtor has been paid; (9) Prior rents or installments had been paid when a receipt for the later ones is produced; (10) A person found in possession of a thing taken in


208

the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him; (11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; (12) Person acting in public office was regularly appointed or elected to it; (13) Official duty has been regularly performed; (14) A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them; (16) Private transactions have been fair and regular; (17) Ordinary course of business has been followed; (18) There was a sufficient consideration for a contract; (19) Negotiable instrument was given or indorsed for a sufficient consideration; (20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (21) A writing is truly dated; (22) Letter duly directed and mailed was received in the regular course of the mail; (23) Presumptions concerning absence: (a) Ordinary but continued absence of: (i) 7 years, it being unknown WON the absentee still lives, he is considered dead for all purposes, except for those of succession (ii) 10 years—the absentee shall be considered dead for the purpose of opening his succession; but if he disappeared after the age of 75 years, an absence of 5 years shall be sufficient to open his succession (iii) 4 consecutive years—the spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead; but where there is danger of death, an absence of only 2 years shall be sufficient for remarriage (b) Qualified absence (i) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft (ii) A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years (iii) A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years (24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact; (25) Things have happened according to the ordinary

course of nature and ordinary nature habits of life; (26) Persons acting as copartners have entered into a contract of co-partnership; (27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (28) Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry; (29) In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal; (30) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary): When Child was Born Before 180 days after the solemnization of the subsequent marriage After 180 days following the celebration of the subsequent marriage

Presumption Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

(31) A thing once proved to exist continues as long as is usual with things of the nature; (32) The law has been obeyed; (33) A printed/published book, purporting to be printed/published by public authority, was so printed/published; (34) A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (35) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (36) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same calamity, (b) and it is not shown who died first, (c) and there are no particular circumstances from which it can be inferred, (d) the survivorship is determined from the probabilities resulting from the strength and the age of the sexes:


Situation Both < 15 y/o Both > 60 y/o One < 15 y/o, the other > 60 y/o Both > 15 and < 60 y/o, of different sexes Both > 15 and <60 y/o, of the same sex One < 15 or > 60 y/o, and the other between those ages

Person presumed to have survived The older The younger The one <15 The male The older The one between those ages

(37) As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, they shall be considered to have died at the same time.

D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance Foreign Laws  General Rule: Courts cannot take judicial notice of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]  Exceptions: The court may take judicial notice of the foreign law: (1) Under the Doctrine of Processual Presumption: In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. [Northwest Orient Airlines v Court of Appeals (1995)] (2) Where the foreign law is within the actual knowledge of the court such as when the law is generally well-known, had been ruled upon in previous cases before it and none of the parties claim otherwise [PCIB v Escolin (1974)] (3) When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [sec. 46, Rule 130]

Law of Nations The Philippines adopts the generally accepted principles of international law as part of the law of the land. [Sec. 2, Art. II, 1987 Constitution] Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under sec. 1 of Rule 129.

Municipal Ordinances General Rule: Courts are NOT mandated to take judicial notice of municipal ordinances. [City of Manila v. Garcia (1967)]

Exception: If the charter of the concerned city provides for such judicial notice [City of Manila v. Garcia (1967)]

III. OBJECT (REAL) EVIDENCE A. B. C. D. E. F.

Nature of Object Evidence Requisites for Admissibility Categories of Object Evidence Demonstrative Evidence View of an Object or Scene Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 G. Rule on DNA Evidence (A.M. No. 06-11-5SC)

A. Nature of Object Evidence Those addressed to the senses of the court [sec. 1, Rule 130] The right against self-incrimination CANNOT be invoked against object evidence.

B. Requisites for Admissibility Relevant General Rule: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Sec. 1, Rule 130] Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if: (1) Exhibition is contrary to public policy, morals or decency; (2) It would result in delays, inconvenience, unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera] (3) Evidence would be confusing or misleading. [People v. Saavedra]

Competent Evidence be Authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Authentication be Made by Competent Witness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation. A witness can testify to those facts which he/she knows of his/her personal knowledge; that is, which are derived from his/her own perception. [sec. 36, Rule 130]

209

REMEDIAL LAW REVIEWER Formally Offered

210

The court shall consider NO evidence which has not been formally offered. [sec. 34, Rule 132]

C. Categories of Object Evidence The ―Thing Itself‖  Unique Objects - Objects that have readily identifiable marks, e.g., a caliber 45 pistol by virtue of its serial number  Objects Made Unique - Objects with no unique characteristic but are made readily identifiable, e.g., a typical kitchen knife with identifying marks placed on it by the witness  Non-Unique Objects - Objects with no identifying marks and cannot be marked, e.g., narcotic substances

D. Demonstrative Evidence Not the actual thing, rather it represents or ―demonstrates‖ the real thing, E.g., photographs, motion pictures and recordings Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: (1) shown, presented or displayed to the court, and (2) identified, explained or authenticated (a) by the person who made the recording, or (b) by some other person competent to testify on the accuracy thereof [sec. 1, Rule 11, Rules on Electronic Evidence] Ephemeral electronic communications Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [sec. 1(k), Rule 2, Rules on Electronic Evidence] Shall be proven (1) by the testimony of a person who was a party to the same; (2) by the testimony of a person who has personal knowledge thereof; or (3) in the absence or unavailability of such witnesses, by other competent evidence [sec. 2, Rule 11, Rules on Electronic Evidence] When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [sec. 2, Rule 11, Rules on Electronic Evidence].

E. View of an Object or Scene When an object is relevant to the fact in issue, it may be viewed by the court. [Sec. 1, Rule 130]

F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 Meaning of chain of custody A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be [Lopez v People (2008), as cited in People v Dela Cruz (2008) and People v Agulay (2008)]

In Relation to Drug Cases The apprehending team having initial custody and control of the drugs shall: (1) physically inventory, and (2) photograph the same, (3) in the presence of (a) accused or the person/s from whom the drugs were seized, or his/her representative or counsel (b) representative from the media and the Department of Justice (c) any elected public official (4) who shall be required to sign the copies of the inventory and be given a copy thereof. [sec. 21, Art. II, R.A. 9165 or the Comprehensive Dangerous Drugs Act of 2002] Non-compliance with sec. 21 of R.A. 9165, particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. The issue if there is non-compliance with the law is not admissibility, but of weight – evidentiary merit or probative value. [People v Del Monte (2008)]

G. Rule on DNA Evidence (A.M. No. 06-11-5-SC) Meaning of DNA DNA evidence The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3c]

Application for DNA testing order With prior court order (1) The appropriate court may, at any time, either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing. (2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;

REMEDIAL LAW REVIEWER (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. 4]

Without prior court order This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4]

Post-conviction DNA testing; remedy How Obtained (1) Without need of prior court order (2) Available to the prosecution or any person convicted by final and executory judgment Requisites: (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal or modification of the judgment of conviction. [Sec. 6] Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10] General Rule: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10] Exception: If continued detention is justified for a lawful cause. [Sec. 10]

Assessment of probative value of DNA evidence and admissibility Factors in Assessing the Probative Value of DNA Evidence (1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination (2) DNA testing methodology (a) Procedure followed in analyzing samples (b) Advantages and disadvantages of procedure

(c) Compliance with scientifically standards in conducting the tests

(3) Forensic DNA laboratory (a) Accreditation by any reputable standardssetting institution (b) Qualification of the analyst who conducted the tests (c) If not accredited, relevant experience of the laboratory in forensic work and its credibility (4) Reliability of the testing result [Sec. 7]

Rules on evaluation of reliability of the DNA testing Methodology Factors that Determine the Reliability of the DNA Testing Methodology (1) Falsifiability of the principles or methods used (2) Subject to peer review and publication of the principles or methods (3) General acceptance of the principles or methods by the scientific community (4) Existence and maintenance of standards and controls to ensure the correctness of data generated (5) Existence of an appropriate reference population database (6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles (7) Significance and limitation of statistical calculations used in comparing DNA profiles

IV. DOCUMENTARY EVIDENCE A. B. C. D.

Meaning of Documentary Evidence Requisites for Admissibility Best Evidence Rule Rules on Electronic Evidence (A.M. No. 01-7-01- SC) E. Parol Evidence Rule F. Authentication and Proof of Documents

A. Meaning Evidence

of

Documentary

Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, sec. 2] To be deemed documentary evidence, such writings or materials must be offered as proof of their contents. If offered for some other purpose, they constitute OBJECT EVIDENCE.

B. Requisites for Admissibility the the

valid

(1) Relevant (2) Competent (a) Document be Authenticated

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REMEDIAL LAW REVIEWER (b) Authenticated by Competent Witness (3) Formally Offered in Evidence

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C. Best Evidence Rule Meaning of the rule When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. [Rule 130, sec. 3]

When applicable (General Rule) Only when the subject of inquiry is the contents of a document [Rule 130, sec. 3] The BER does not apply when the issue is only as to WON such document was actually executed or in the circumstances relevant to its execution. [People v Tandoy (1990)]

Meaning of original Original document (1) One the contents of which are the subject of inquiry (2) All such copies of a executed at or about the same time, and with identical contents NOTE: Carbon copies are deemed duplicate originals. [People v Tan (1959)] (3) All such entries made and repeated in the regular course of business, at/near the time of the transaction [Rule 130, sec. 4]

Requisites for introduction of secondary evidence (Exceptions to BER) [Rule 130, sec. 3] (1) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the offeror‘s part (2) When the original is in the custody or under the control of the party against whom it is offered, and the latter fails to produce it after reasonable notice (3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole (4) When the original is a public record in the custody of a public officer or is recorded in a public office

D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC) Meaning of electronic evidence; electronic data message

Electronic document (1) Information or the representation of information, data, figures, symbols or other modes of written expression, (2) described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, (3) which is received, recorded, transmitted, stored processed, retrieved or produced electronically. (4) It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term ―electronic document‖ may be used interchangeably with electronic data message‖. Electronic data message Information generated, sent, received or stored by electronic, optical or similar means

Probative value of electronic documents or evidentiary weight; method of proof Factors in assessing evidentiary weight of electronic evidence (Rule 7, §1) In assessing the evidentiary weight of an electronic document, the following factors may be considered: (1) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to (a) input and output procedures, (b) controls, tests and checks for accuracy and reliability of the electronic data message or document, (c) in the light of all the circumstances as well as any relevant agreement; (2) The reliability of the manner in which its originator was identified; (3) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system [Rule 7, sec. 2]; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it [Rule 7, sec. 2]; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Rule 7, sec. 2]

REMEDIAL LAW REVIEWER (4) The familiarity of the witness or the person who made the entry with the communication and information system; (5) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (6) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (1) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (2) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (3) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. Text messages have been classified as ―ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and ―shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.‖ [Vidallon-Magtolis v. Salud (2005)] Method of Proof (1) Affidavit of Evidence [Rule 9, sec. 1] (a) Must state facts (i) of direct personal knowledge, or (ii) based on authentic records (b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit (2) Cross-Examination of Deponent [Rule 9, sec. 2] (a) Affiant shall affirm the contents of the affidavit in open court. (b) Affiant may be cross-examined as a matter of right by the adverse party.

Authentication of electronic documents and electronic signatures (R5, ss1-3; R11, ss1-2, REE) Of Electronic Documents Burden of Proving Authenticity: The person seeking to introduce the electronic document [Rule 5, sec. 1] Manner of Authentication: (1) By evidence that it had been digitally signed by the person purported to have signed the same; (2) By evidence that other appropriate security

procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (3) By other evidence showing its integrity and reliability to the satisfaction of the judge. [Rule 5, sec. 2] Of Electronic Signatures [Rule 6, sec. 2] (1) By evidence that a method or process was utilized to establish a digital signature and verify the same; (2) By any other means provided by law; or (3) By any other means satisfactory to the judge

Electronic documents and the hearsay rule Business Records as Exception to the Hearsay Rule What Constitute Business Records: Records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes [Rule 2, sec. 1b] Requisites (1) Made by electronic, optical or other similar means (2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity, (5) Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Rule 8, sec. 1] Exception to the Exception (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation, transmission or storage thereof [Rule 8, sec. 2]

Audio, photographic, video and ephemeral evidence If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 (―Authentication of Electronic Documents‖) shall apply.

E. Parol Evidence Rule Meaning of parol evidence Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a

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REMEDIAL LAW REVIEWER complete and enforceable agreement embodied in a document.

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Application of the parol evidence rule (General Rule) When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. [Rule 130, sec. 9] It does not apply when 3rd parties are involved. [Lechugas v. CA (1986)]

When parol evidence can be introduced (1) When a party presents parol evidence to modify, explain or add to the terms of a written agreement (2) Ground/s for presenting parol evidence is put in issue in the pleading Grounds for presenting parol evidence: (1) An intrinsic ambiguity, mistake or imperfection in the written agreement (2) Failure of the written agreement to express the true intent and agreement of the parties thereto (3) Validity of the written agreement (4) Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

Distinctions between the best evidence rule and parol evidence rule Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original Applies to all kinds of documents Can be invoked by any party to an action regardless of WON such party participated in the writing involved

Parol Evidence Rule Presupposes that the original document is available in court

Prohibits the varying of the terms of a written agreement

F. Authentication and Proof of Documents Meaning of authentication  The preliminary step in admissibility of evidence  Private and Public Documents Private Documents When offered as authentic, due execution and authenticity must be proved

showing

the

Public Documents Admissible without further proof of its due execution and authenticity

Public and private documents When a private writing requires authentication; proof of a private writing PRIVATE DOCUMENTS When offered as authentic General Rule: Authentication necessary How to Prove Due Execution and Authenticity (1) By anyone who saw the document executed or written; OR (2) By evidence of the genuineness of the signature or handwriting of the maker [Rule 132, sec. 20]

When evidence of authenticity of a private writing is not required (ancient documents) Exception (1) Ancient Documents – authentication NOT necessary provided that private document be: (a) More than 30 years old; (b) Produced from the custody in which it would naturally be found if genuine; and (c) Unblemished by any alterations or circumstances of suspicion. [Rule 132, sec. 21] (2) That which it is claimed to be: Authentication not necessary [Rule 132, sec. 20]

How to prove genuineness of handwriting Applies only to documents contractual in nature (Exception: wills) Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby

(1) By any witness who believes it to be the handwriting of such person because: (a) he has seen the person write; (b) he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Rule 132, sec. 22] (2) A comparison by the witness or the court of the questioned handwriting, and admitted genuine specimens thereof or proved to be genuine to the satisfaction of the judge [Rule 132, sec. 22]

REMEDIAL LAW REVIEWER (3) Expert evidence [Rule 130, sec. 49]

Public documents as evidence; proof of official record PUBLIC DOCUMENTS Kinds of public documents (1) Written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country (2) Public records, kept in the Philippines, of private documents required by law to be entered therein (3) Notarial documents (except last wills and testaments) Proof of public documents Records of Official Acts [Rule 132, sec. 24] (1) By an official publication thereof; or (2) By an attested copy of the document

Attestation of a copy [Rule 132, sec. 25] Attestation of Copy [Rule 132, sec. 25] (1) Must be made by the officer having the legal custody of the record, or by his deputy (2) Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be (3) Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which (1) May be made by a secretary of the embassy/legation, consul-general, consul, viceconsul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept; (2) Must state that such officer has the custody; and (3) Must be authenticated by the seal of his office.

Public record of a private document Public Records of Private Documents [Rule 132, sec. 27] (1) By the original record; or (2) By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. [Rule 132, sec. 27] Note: Please refer to ―Attestation of Copy‖ under the immediately preceding subsection.

Proof of lack of record [Rule 132, sec. 28] (1) Written statement (a) Signed by an officer having the custody of an official record or by his deputy (b) Must state that after diligent search, no record or entry of a specified tenor is found

to exist in the records of his office (2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the custody

How a judicial record is impeached What to Establish to Impeach Judicial Record [Rule 132, sec. 29] (1) Want of jurisdiction in the court or judicial officer; (2) Collusion between the parties; OR (3) Fraud in the party offering the record, with respect to the proceedings

Proof of notarial documents Notarial Documents (except last wills and testaments) [Rule 132, sec. 30] (1) May be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (2) Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, sec. 23]

How to explain alterations in a document Alterations in a Document [Rule 132, sec. 31] Requisites (1) Document is being presented as genuine; (2) Document has been altered and appears to have been altered; (3) Alteration was made after execution of the document; and (4) Alteration is in a part material to the question in dispute What to Show about the Alteration (1) Was made by another, without his concurrence; (2) Was made with the consent of the parties affected by it; (3) Was otherwise properly or innocently made; or (4) Did not change the meaning or language of the instrument. Whose Burden of Proof Party producing the document must account for the alteration. Failure to do so would result in the inadmissibility of evidence.

Documentary evidence in an unofficial language [Rule 132, sec. 33] NOT admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial.

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216 V. TESTIMONIAL EVIDENCE A. Qualifications of a Witness B. Competency versus Credibility of a Witness C. Disqualifications of Witnesses D. Examination of a Witness E. Admissions and Confessions F. Hearsay Rule G. Opinion Rule H. Character Evidence I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)

I. With respect to the witness

A. Qualifications of a [Rule 130, sec. 20]

Witness

All persons who can perceive, and, perceiving, can make their known perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification.

B. Competency versus Credibility of a Witness Competency A matter of law and of rules Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others

Credibility Has nothing to do with the law or rules Refers to the weight and trustworthiness or reliability of the testimony

of

By reason of mental incapacity [Rule 130, sec. 21a]  Requisites (1) Person must be incapable of intelligently making known his perception to others (2) His incapability must exist at the time of his production for examination A mental retardate is not for this reason alone disqualified from being a witness. Acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. [People v. Salomon (1993)] By reason of immaturity [Rule 130, sec. 21b]

Incapacity must occur at the time the witness perceives the event.

2. Disqualification marriage

by

reason

of

Also known as ―Marital Disqualification Rule‖ or ―Spousal Immunity‖ Requisites (1) Marriage is valid and existing as of the time of the offer of testimony. (2) Other spouse is a party to the action. Exceptions [Rule 130, sec. 22]: Spouse MAY testify for or against the other even without the consent of the latter: (1) In a civil case by one against the other (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Rationale [Alvarez v. Ramirez (2005)] (1) There is identity of interests between husband and wife; (2) If one were to testify for or against the other, there is a consequent danger of perjury; (3) Policy of the law is to guard the security and confidence of private life, and to prevent domestic disunion and unhappiness; and (4) Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other.

3. Disqualification by reason of death or insanity of adverse party

Also known as ―Dead Man‘s Statute‖ or ―Survivorship Rule‖

C. Disqualifications of Witnesses 1. Disqualification by reason mental capacity or immaturity

Requisites (1) Mental maturity of the witness (child) must render him incapable of perceiving the facts respecting which he is examined. (2) He is incapable of relating his perception truthfully.

Requisites [Rule 130, Sec. 23] (1) Defendant is the executor or administrator or a representative of the deceased or of the person of unsound mind; (2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind; (3) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and (4) Subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Exceptions (1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence

REMEDIAL LAW REVIEWER other than the testimony of the survivor. [Ong Chua v. Carr (1929)] (2) He may also testify where he was the one sued by the decedent‘s estate since the action then is not against the estate. [Tongco v. Vianzon (1927)] (3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA (1986)] Rationale: To discourage perjury and protect the estate from fictitious claims

4. Disqualification

by reason privileged communications

of

Husband and wife (Marital privilege) [Sec. 24(a), Rule 130] Requisites (1) There must be a valid marriage husband and wife; (2) There is a communication confidence by one from the other; (3) The confidential communication during the marriage.

between the received in and was received

NOTE: A widow of a victim allegedly murdered may testify as to her husband‘s dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo (1918)] Exceptions (1) In a civil case by one against the other; (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Rationale: To promote marital harmony. In Contrast to Marital Disqualification Marital Disqualification One spouse should be a party to the case; Applies only if the marriage is existing at the time the testimony is offered; and Constitutes a total prohibition on any testimony for or against the spouse of the witness.

Marital Privilege Neither of the spouses needs to be a party; Does not cease even after the marriage is dissolved; and Prohibition is limited to testimony on confidential communications between spouses.

Attorney and client [Sec. 24(b), Rule 130] Requisites (1) There must be a communication made by the client to the attorney or an advice given by the attorney to his client; (2) The communication must have been given in confidence; and

(3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. NOTE: Attorney‘s secretary, stenographer, or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer. General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. Exceptions [Regala v. Sandiganbayan (1996)]: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer‘s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict.

Physician and patient [Sec. 24(c), Rule 130] markRequisites (1) Physician is authorized to practice medicine, surgery or obstetrics; (2) Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; (3) Information, advice or treatment, if revealed, would blacken the reputation of the patient; and (4) Privilege is invoked in a civil case, whether or not the patient is a party thereto. Privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. [Lim v. CA (1992)]

Priest and penitent [Sec. 24(d), Rule 130] Requisites (1) Confession was made to, or advice given by him pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest. (2) Confession or advice was confidential and penitential in character.

Public officers [Sec. 24(e), Rule 130] Requisites (1) Communication was made to the public officer in official confidence; and (2) Public interest would suffer by the disclosure of such communication. Elements privilege‖

of

―presidential

communications

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(1) Must relate to a ―quintessential and nondelegable presidential power;‖ (2) Must be authored or ―solicited and received‖ by a close advisor of the President or the President himself; and (3) Privilege may be overcome by a showing of adequate need such that the information sought ―likely contains important evidence‖ and by the unavailability of the information elsewhere. [Neri v. Senate (2008)]

5. Parental and filial privilege rule [Sec. 25, Rule 130]

General Rule: A person cannot be compelled to testify against his parents, other direct ascendants (parental privilege), children or other direct descendants (filial privilege). Exception [Art. 215, Family Code]: Descendant may be compelled to give his testimony: (1) In a criminal case; and (2) When such testimony is indispensable in a crime committed against said descendant; or (3) In a crime committed by one parent against the other.

D. Examination of a Witness

DIRECT EXAMINATION [Sec. 5, Rule 132] Who conducts: Proponent Why conducted: Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue.  CROSS EXAMINATION [sec. 6, Rule 132] Who conducts: Opponent When conducted: Upon the termination of the direct examination Why conducted: To test the witness‘s accuracy and truthfulness, and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue What matters are covered: Any matters stated in the direct examination, or connected therewith  RE-DIRECT EXAMINATION [Sec. 7, Rule 132] Who conducts: Proponent

Rights and obligations of a witness [Sec. 3, Rule 132]

When conducted: After cross-examination of the witness

Obligation of a witness: To answer questions, although his answer may tend to establish a claim against him.

Why conducted: To explain or supplement his answers given during the cross-examination

Rights of a witness (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor (2) Not to be detained longer than the interests of justice require (3) Not to be examined except only as to matters pertinent to the issue (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, e.g., Sec. 8, RA 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.

Order in the examination of an individual witness [Sec. 4, Rule 132] (1) Direct examination (2) Cross examination (3) Re-direct examination (4) Re-cross examination

What matters are covered: Those stated in the cross-examination, and matters not dealt with, if allowed by the Court  RE-CROSS EXAMINATION [Sec. 8, Rule 132] Who conducts: Opponent When conducted: Upon the conclusion of the redirect examination What matters are covered: Those stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. 

REMEDIAL LAW REVIEWER RECALLING THE WITNESS [Sec. 9, Rule 132] Who conducts: either party When conducted: After both sides have concluded the examination of a witness, and with leave of court Why conducted: (1) Particularly identified material points were not covered in cross-examination (2) Particularly described vital documents were not presented to the witness (3) Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People vs. Rivera (1991)]

Leading and misleading questions [Sec. 10, Rule 132] Questions not allowed (1) Misleading Questions [sec. 10, Rule 132]  Questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.  NEVER allowed (2) Leading Questions  Questions that suggest to the witness the answer, which the examining party desires.

How the witness is impeached by evidence of inconsistent statements (laying the predicate) Elements: (1) The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him. (2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements. Purpose: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same.

Evidence of the good character of a witness [Sec. 14, Rule 132] Evidence of the witness‘ good character is not admissible until such character has been impeached.

II. With respect to the testimony

E. Admissions and Confessions 1. Admissions of a Party

General Rule: Leading questions are not allowed.

By Act, Declaration or Omission

Exceptions: (1) On cross examination; (2) On preliminary matters; (3) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (4) On an unwilling or hostile witness;

Requisites for Admissibility (1) Made by a party; (2) Outside of court; (3) Relates to a relevant fact; and (4) Is against admitter‘s interest. [sec. 26, Rule 130]

A witness may be considered hostile only when declared by the court, upon adequate showing of his: [sec. 12, Rule 132] (a) Adverse interest; (b) Unjustified reluctance to testify; (c) His having misled the party into calling him to the witness stand. (5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party.

Methods of impeachment of adverse party’s witness [sec. 11, Rule 132] (1) By contradictory evidence; (2) By evidence that his general reputation for truth, honesty or integrity is bad; (3) By evidence that he has made at other times statements inconsistent with his present testimony.

Effect (1) May be given in evidence against the admitter [sec. 26, Rule 130] (2) Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala (1918)] Rationale No man would make any declaration against himself unless it is true. [Republic v. Bautista (2007)] As Distinguished from Judicial Admissions Judicial Made in connection with a judicial proceeding in which it is offered Rule 129, sec. 4

Extrajudicial Any other admission Rule 130, secs. 26 and 32

By Silence Requisites for Admissibility: (1) An act or declaration is made in the presence and within the hearing or observation of a party;

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(2) Party does or says nothing; (3) Act or declaration is such as naturally to call for action or comment if not true; and (4) It was proper and possible for the party to do so. [sec. 32, Rule 130] Silence of a person under investigation for the commission of an offense should not be construed as an admission by silence for constitutional reasons. [Sec. 2(b), R.A. 7438]

2. Confessions A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [sec. 33, Rule 130] If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [US v. Tolosa] Any confession, including a re-enactment, without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming (1996)] General Rule: An extra-judicial confession made by an accused is not a sufficient ground for conviction. [sec. 3, Rule 133] Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). [sec. 3, Rule 133] As Distinguished from Admissions of a Party Admission Merely a statement of fact Maybe express or tacit Maybe made by 3rd parties, and in certain cases, admissible against a party

Confession Acknowledgment of guilt or liability Must be express Can be made only by the party himself, and admissible against his co-accused in some instances

3. Res inter alios acta rule With Respect to Admissions by a ―ThirdParty‖ General Rule: INADMISSIBLE The rights of a party cannot be prejudiced by an act, declaration or omission of another. (1st Branch) [sec. 28, Rule 130] Exceptions: (1) Partner‘s or Agent‘s Admission [sec. 29, Rule 130] Requisites: (a) Act or declaration must be within the scope of the authority of the partner or agent;

(b) Act or declaration must have been made during the existence of the partnership or agency; and (c) Partnership or agency must be shown by evidence other than the act or declaration. (2) Co-Conspirator‘s Admission [sec. 30, Rule 130] Requisites (a) Act or declaration must relate to the conspiracy; (b) It must have been made during the existence of the conspiracy; and (c) Conspiracy must be shown by evidence other than such act/declaration. Existence of the conspiracy may be inferred from the acts of the accused. [People v. Belen (1963)] Rule 130, sec. 30 applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano (1959)] (3) Admission by Privies [sec. 31, Rule 130] Requisites: (a) There must be an act, declaration or an omission by a predecessor-in-interest; (b) Act, declaration or omission must have occurred while he was holding (not after) the title to the property; and (c) Act, declaration or omission must be in relation to the property.

With Respect to Similar Acts General Rule: Evidence that one did or did not do a certain thing at one time is NOT ADMISSIBLE to prove that he did or did not do the same or similar thing at another time. (2nd Branch) [sec. 34, Rule 130] Exceptions: Said evidence may be received to prove: (1) specific intent or knowledge; (2) identity; (3) plan, system, or scheme; (4) habit; (5) custom, usage and the like.

Admission by a party Please see discussion in previous section (previous page)

Admission by a third party Admission by a co-partner or agent Admission by a conspirator Admission by privies Please see discussion under the subsection ‘Res inter alios acta rule’

REMEDIAL LAW REVIEWER Admission by silence Please see discussion in previous section (previous page)

Confessions Please see discussion in previous section (previous page)

Similar acts as evidence Please see discussion under the subsection ‘Res inter alios acta rule’

F. Hearsay Rule Meaning of hearsay (1) Out-of-court statement (2) Offered by the witness in court to prove the truth of the matters asserted by the statement Any evidence, whether oral or documentary, if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [Regalado 11th ed.] Doctrine of Independently Relevant Statements Statements or writings attributed to a person not on the witness stand, which are being offered not to prove the truth of the facts stated therein, but only to prove that such were actually made. These are NOT covered by the hearsay rule [People v. Cusi (1965)]

Reason for exclusion of hearsay evidence Lack of opportunity to cross-examine the outside declarant GENERAL RULE ON HEARSAY A witness can testify only as to those facts which he knows of his personal knowledge, or those derived from his own perception. [Rule 130, sec. 36] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements. [Consunji vs. CA (2001)] If a party does not object to hearsay evidence, the same is admissible, as a party can waive his right to cross-examine [People vs Ola (1987)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette vs Lakas ng Manggagawang Pilipino (1975)]

Exceptions to the hearsay rule (Asked 7x) 1) Dying declaration Also known as ―antemortem statement‖ or ―statement in articulo mortis‖ [Sec. 37, Rule 130]

Requisites for Admissibility (1) Declaration is one made by a dying person; (2) Declaration was made under the consciousness of an impending death; (3) Declaration refers to cause and surrounding circumstances of such death; (4) Declaration is offered in any case wherein his death is the subject of inquiry; (5) Declarant is competent as a witness had he survived [Geraldo v People (2008)]; and (6) Declarant should have died. [People v. Macandog (2001)] Rationale for Admissibility: As a general rule, when a person is at the point of death, every motive to falsehood is silenced. [People v Bacunawa (2001)] The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant‘s injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada (2004)]

2) Declaration against interest Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declaration relates to a fact against the interest of the declarant; (3) At the time he made said declaration, declarant was aware that the same was contrary to his interest; and (4) Declarant had no motive to falsify and believed such declaration to be true [sec. 38, Rule 130; Ong v. Court of Appeals (1980)] Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. CA (1996)] As Distinguished from Admissions Admission Admitter is a party himself, or in privity with such party; Admissible whether or not admitter is available as a witness Can be made any time, even during trial; Admissible only against the admitter; and Admissible NOT as an exception to any rule

Declaration against Interest Declarant is neither a party nor in privity with a party; Admissible only when declarant is unavailable as a witness; Must have been made ante litem motam; Admissible even against 3rd persons; and Admissible as an exception to the hearsay rule

3) Act or declaration about pedigree Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declarant must be related by birth or marriage to the person whose pedigree is in issue;

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(3) Declaration was made before the controversy; and (4) Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. [sec. 39, Rule 130] Meaning of Pedigree (1) Relationship; (2) Family genealogy; (3) Birth; (4) Marriage; (5) Death; (6) Dates when these facts occurred; (7) Places where these facts occurred; (8) Names of relatives; and (9) Facts of family history intimately connected with pedigree. [sec. 39, Rule 130]

4) Family reputation or tradition regarding pedigree Requisites for Admissibility: (1) Witness must be a member, by consanguinity or affinity, of the same family as the subject; and (2) Such reputation or tradition must have existed in that family ante litem motam. [sec. 40, Rule 130]

Admissible Statements (1) Spontaneous statements - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof (a) Principal act be a startling occurrence (b) Statement made before declarant had opportunity to contrive (c) Statement refer to occurrence in question and attending circumstances (2) Verbal acts - Statements, which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to equivocal act (e) Must be made at the time, not after, the equivocal act was being performed A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes]

Other Admissible Evidence (1) Entries in family bibles or other family books; (2) Charts; (3) Engravings on rings; (4) Family portraits and the like [sec. 40, Rule 130]

A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately afer the incident. [People vs. Reyes]

This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. [Jison v. CA (1998)]

7) Entries in the course of business

A person‘s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo (1967)]

5) Common reputation Requisites for Admissibility (1) Reputation pertains to: (a) facts of public or general interest more than 30 years old, (b) marriage, or (c) moral character (2) Common reputation existed ante litem motam. [sec. 41, Rule 130] Other Admissible Evidence (a) Monuments (b) Inscriptions in public places [sec. 41, Rule 130] Pedigree may be established by reputation in the family, but NOT in the community. [Rule 130, secs. 40-41]

6) Part of the res gestae [Sec. 42, Rule 130]

Requisites for Admissibility [sec. 43, Rule 130] (1) Entries were made at, or near the time of the transactions referred to; (2) Such entries were made in the ordinary or regular course of business or duty; (3) Entrant was in a position to know the facts stated in the entries; (4) Entrant did so in his professional capacity, or in the performance of duty and in the regular course of business; and (5) Entrant is now dead or unable to testify. If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner (1916)] ―Business records‖ are exempt from the hearsay rule. [Rule 8, sec. 1, Rules on Electronic Evidence]

8) Entries in official records Requisites for Admissibility (1) Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [sec. 44, Rule 130];

REMEDIAL LAW REVIEWER (2) Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Salmon, Dexter & Co. v. Wijangco (1924)]; and (3) Entries were duly entered in a regular manner in the official records. Entries in official records, just like entries in the course of business, are merely prima facie evidence of the facts therein stated. [secs. 43-44, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries. [People v. Cabuang (1993)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (1968)]

9) Commercial lists and the like Requisites for Admissibility [Sec. 45, Rule 130] (1) Such statements are contained in a list; (2) Compilation is published for use by persons engaged in that occupation; and (3) It is generally used and relied upon by them.

10) Learned treaties Requisites for Admissibility [Sec. 46, Rule 130] (1) Published treatise, periodical or pamphlet is on a subject of history, law, science, or art; and (2) Court takes judicial notice of it, or (3) Witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject

11) Testimony or deposition at a former trial Requisites for Admissibility [sec. 47, Rule 130; Manliclic v. Calaunan (2007)] (1) Witness is dead or unable to testify; (2) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (3) Former case involved the same subject as that in the present case although on different causes of action; (4) Issue testified to by the witness in the former trial is the same issue involved in the present case; and (5) Adverse party had the opportunity to crossexamine the witness in the former case.

G. Opinion Rule GENERAL RULE: The opinion of a witness is not admissible. [Sec. 48, Rule 130] EXCEPTIONS [NOTE: Please refer to succeeding subsections for discussion] (1) Expert witness (2) Ordinary witness

Opinion of expert witness [sec. 49, Rule 130] On a matter (1) Requiring (a) special knowledge, (b) skill, (c) experience, or (d) training (2) Which he is shown to possess Expert witness is one who belongs to the profession or calling which the subject matter of the inquiry relates and who possesses special knowledge.

Opinion of ordinary witness [sec. 50, Rule 130] (1) If proper basis is given, and (2) Regarding: (a) Identity of a person about whom he has adequate knowledge; (b) Handwriting with which he has sufficient familiarity; (c) Mental sanity of a person with whom he is sufficiently acquainted; and (d) Impressions of the (i) emotion, (ii) behavior, (iii) condition, or (iv) appearance of a person.

H. Character Evidence GENERAL RULE [sec. 51, Rule 130]: Character evidence is not admissible. EXCEPTIONS (1) Criminal cases [sec. 51(a), Rule 130] (a) Accused – May prove his good moral character, which is pertinent to the moral trait involved in the offense charged. (b) Prosecution – May not prove the bad moral character of the accused, except in rebuttal. (c) Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the im/probability of the offense charged. (2) Civil cases (a) Moral character is admissible only when pertinent to the issue of character involved in the case. [sec. 51(b), Rule 130] (b) Evidence of the witness‘ good character is not admissible until such character has been impeached. [sec. 14, Rule 130]

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I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC) Applicability of the rule (1) Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. [Sec. 1] (2) The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]

Meaning of ―child witness‖ (1) Any person who at the time of giving testimony is < 18 years; (2) In child abuse cases, a child includes one over 18 years but is found by the court as (a) unable to fully take care of himself, or (b) protect himself from abuse, neglect, cruelty, exploitation, or discrimination (c) because of a physical or mental disability or condition.;

Competency of a child witness Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)] Requisites of competency of a child as witness [People v. Mendoza (1996)]: (1) Capacity of observation; (2) Capacity of recollection; (3) Capacity of communication. When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/ communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)]

Examination of a child witness (1) In open court [Sec. 11] (2) Alternative Modes (a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a Witness [Sec. 25] (i) If there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor. (ii) Trauma must be of a kind which would impair the completeness or truthfulness of the child‘s testimony.

(b) Videotaped Deposition of a Child Witness [Sec. 27] (i) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (ii) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

Live-link TV testimony of a child witness [Sec. 25] Live-link television testimony, in criminal cases where the child is a victim or a witness The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor. The trauma must be of a kind which would impair the completeness/truthfulness of the child‘s testimony. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

Videotaped deposition of a child witness [Sec. 27] If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

Hearsay exception in child abuse cases [Sec. 28] Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. If the child is available, court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. If unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence.

Sexual abuse shield rule General Rule [Sec. 30(a)]: The following are INADMISSIBLE in any criminal proceeding involving

REMEDIAL LAW REVIEWER alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; (2) Evidence offered to prove the sexual predisposition of the alleged victim. Exception [Sec. 30(b)]: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury or other physical evidence

Protective orders Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)] The court may issue additional orders to protect the child‘s privacy. [Sec. 31(c)] Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the child, shall be liable for contempt of court. [Sec. 31(d)] A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. [Sec. 31(e)]

VI. OFFER AND OBJECTION A. B. C. D. E. F. G.

Offer of Evidence When to Make an Offer Objection Repetition of an Objection Ruling Striking Out of an Answer Tender of Excluded Evidence

A. Offer of Evidence Concept [Sec. 34, Rule 132] (1) Court shall consider no evidence which has not been formally offered (2) Purpose for which the evidence is offered must be specified (3) As Distinguished from Identification of Documentary Evidence [Interpacific Transit v. Aviles (1990)] Identification of Documentary Evidence Done in the course of the trial and accompanied by the marking of the evidence

Formal Offer of Exhibit Done only when the party rests his/her case

B. When to Make an Offer [Sec. 35, Rule 132]

Kind of evidence Testimonial

When to offer At the time the witness is called to testify Documentary and After the presentation of a Object party‘s testimonial evidence Offer shall be done orally unless allowed by the court to be done in writing. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA (1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate (1981)]

C. Objection Concept What to object to Testimonial evidence

When to object Immediately after offer is made Question propounded in As soon as the grounds the course of oral become reasonably examination apparent Offer done in writing Within 3 days after notice of the offer, unless a different period is allowed by the court The grounds for objection must be specified in any case.

D. Repetition of an Objection [Sec. 37, Rule 132] When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall be sufficient for the adverse party to record his continuing objection to such class of questions. A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship]

E. Ruling Ruling on the objection [Sec. 38, Rule 132]  Should be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented.  Reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground/s relied upon.  Reservation of a ruling by the court on an objection to the admissibility of evidence,

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without subsequently excluding the same, amounts to a denial of an objection. [People v. Tavera]

F. Striking Out of an Answer Motion to strike [sec. 39, Rule 132] (1) Court may sustain an objection and order the answer given to be stricken off the record if: (a) witness answers the question before the adverse party had the opportunity to object, and (b) such objection is found to be meritorious. (2) The court may also, upon motion, order the striking out of answers, which are (a) incompetent, (b) irrelevant or (c) otherwise improper.

G. Tender of Excluded Evidence [Rule 132, Sec. 40] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. WCC (1977)] How to Tender Evidence Kind of evidence Documentary Testimonial

How to tender the evidence Offeror may have the same attached or made part of the record Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony


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2012

REMEDIAL

Special Proceedings BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao • Mark Xavier Oyales | Acads Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel Miranda (D) |Special Lectures Patricia Madarang • Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin • Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo • Jose Lacas |Logistics Angelo Bernard Ngo • Annalee Toda|HR Anne Janelle Yu • Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar Krizel Malabanan • Karren de Chavez |Bar Candidates’ Welfare Karina Kirstie Paola Ayco • Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano • Katrina Rivera |Hotel Operations Marijo Alcala • Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva • Charlaine Latorre |Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages


LAW REMEDIAL LAW TEAM 2012 Subject Head | Eden Mopia SpecPro Subject Head | Margeline Carrasco Contributors | Cyril Arnesto • Kristine Camille Umali LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible • Noel Luciano • RM Meneses • Jenin Velasquez • Mara Villegas • Naomi Quimpo • Leslie Octaviano • Yas Refran • Cris Bernardino Layout Head| Graciello Timothy Reyes


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Special Proceedings REMEDIAL LAW

Criminal Procedure Civil Procedure Evidence Special Proceedings

Preliminary Matters I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII.

Settlement of estate of deceased persons, venue and process Summary settlement of estates Production and probate of will Allowance or disallowance of will Letters testamentary and of administration Claims against the estate Actions by and against executors and administrators Distribution and partition Trustees Escheat Guardianship Adoption Writ of habeas corpus Writ of Amparo (A.M. No. 07-912-SC) Change of name Absentees Cancellation or correction of entries in the civil registry Appeals in special proceeding

PRELIMINARY MATTERS Special proceedings: A remedy by which a party seeks to establish a status, right or a particular fact (Rule 1, Sec. 3(c)). Applicable rules  If special rules are provided, they shall apply. But in the absence of such special provisions, the rules applicable in special proceedings shall be applied (Rule 72, Sec. 2).  There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data).  The State has an overriding interest in each special proceeding, and the matter is not a controversy between private parties purely (Bautista).  The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not

strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken (Regalado).  Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v. CA (1969)]. Subject Matter and Applicability of General Rules Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations (11) Judicial approval of voluntary recognition of minor natural children (12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil registry. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. Difference Between Action and Special Proceeding Ordinary Action To protect/enforce a right or prevent/ redress a wrong Involves 2 or more parties Governed by ordinary rules supplemented by special rules Initiated by pleading, and parties respond through an answer

Special Proceeding To establish right/status/fact

a

May involve only 1 party Governed by special rules, supplemented by ordinary rules Initiated by petition, parties respond through an opposition

Action - formal demand of one‘s right in a court of justice in the manner prescribed by the court or by the law (Herrera). Special proceeding - application or proceeding to establish the status or right of a party, or particular fact. No formal pleadings are required, unless the statute expressly so provides (Herrera).

REMEDIAL LAW REVIEWER Venues and Jurisdictions for Special Proceedings Special Proceeding Settlement of the Estate of a Deceased Person

Venue Residence of the decedent If non-resident, place where he had an estate

Escheat

Person dies intestate leaving no heir – Residence of the decedent or if non-resident, place where he had estate Reversion – where land lies in whole or in part Unclaimed Balances Act – where deposits are located Where minor resides Where incompetent resides Where will was allowed or Where the property or portion thereof affected by the trust is situated Domestic – where adopter resides Inter-country Adoption – ICAB or, where adoptee resides if filed with the Family Court Where adoptee resides If filed with RTC, where detainee is detained

Appointment of Guardians Appointment of Trustees Adoption

Rescission of Adoption Habeas Corpus

Habeas Data

Amparo Change of Name

Appointment of Representative of Absentee/ Declaration of Absence Cancellation / Correction of Entries in Civil Registries Petition for declaration of nullity, annulment, legal separation

For the custody of minors, where petitioner resides or where minor may be found Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected, or stored, at the option of the petitioner Where the threat, act or omission was committed or any of its elements occurred Judicial - where petitioner resides Administrative:  Local civil registry where the record sought to be changed is kept  Local civil registry of the place of residence of the interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept)  Philippine consulates only for non-resident citizen Where Absentee resides before his disappearance

Judicial - Where corresponding civil registry is located Administrative - Same as change of name Where petitioner or respondent has been residing for at least 6 months prior to the date of filing If non-resident petitioner, where he may be found at the election of the petitioner

Jurisdiction MTC if gross value of the estate does not exceed P300,000, or does not exceed P400,000 in Metro Manila otherwise, RTC RTC RTC RTC Family Court RTC RTC Family Court ICAB or Family Court Family Court SC, CA, RTC, MTC in the province or city in case there is no RTC judge Sandiganbayan, only in aid of its appellate jurisdiction Family Court, CA, SC RTC generally If concerning public data files or government offices, SC, CA or Sandigabayan RTC, Sandiganbayan, CA, SC or any justice thereof RTC Local Civil Registry/ Philippine consulate

RTC

RTC Local Civil Registry/ Philippine consulate Family Court

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I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS A. B. C. D.

Which court has jurisdiction Venue in judicial settlement of estate Extent of jurisdiction of Probate Court Powers and Duties of Probate Court

Exceptions: (1) Probate court may pass judgment upon the title but such determination is provisional, not conclusive, and is subject to final decision; or (2) With consent of all the parties, without prejudice to third persons [Trinidad v. CA (1991)]

A. Which court has jurisdiction Decedent Inhabitant of the Philippines at time of death (citizen/alien) Inhabitant of foreign country

Venue RTC of the province in which he resides RTC of any province in which he had estate

Jurisdiction: court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts. [Sec. 1, Rule 73] General Rule: The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, Exceptions: (1) In an appeal from that court, in the original case, OR (2) When the want of jurisdiction appears on the record. Jurisdiction of RTCs When the value of the estate exceeds P300,000 or P400,000 in Metro Manila. Jurisdiction of MTCs When the value of the estate does not exceed P300,000 or P400,000 in Metro Manila.

B. Venue in judicial settlement of estate Rule 73 relates to venue and not to jurisdiction The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is only constitutive of venue. Meaning of term ―resides‖ Resides - in the section is viewed in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence of place of abode. [Garcia Fule v. CA (1976)]

C. Extent of jurisdiction Probate Court

property, not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administration proceedings. It must be settled in a separate action.

of

Probate court is of limited jurisdiction General rule: When questions arise as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his

D. Powers and Duties of Probate Court Dariano vs. Fernandez Fidalgo (1909): It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by intervening in the administration thereof in order to remedy or repair any injury that may be done thereto In Re: Baldomero Cosme (1937: There seems, however, to be a general tendency, in the absence of express and specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same.

II. SUMMARY SETTLEMENT OF ESTATES A. Extrajudicial settlement by agreement between heirs, when allowed B. Two-year prescriptive period C. Affidavit of Self-adjudication by sole heir D. Summary settlement of estates of small value, when allowed E. Remedies of aggrieved parties after extrajudicial settlement of estate Extrajudicial Settlement No will (intestate) No debts Gross value of estate may exceed P10,000

Summary Settlement Will may or may not exist (intestate/testate) Debts may or may not exist Gross value of estate may not exceed P10,000

A. Extrajudicial settlement by agreement between heirs, when allowed Requisites (1) No will (2) No debts OR the heirs have already paid such at the time of partition

REMEDIAL LAW REVIEWER (3) Heirs are all of age or the minors are represented by their judicial or legal representatives Procedure Death of the decedent  Division of estate in public instrument or affidavit of adjudication  Filing of the public instrument or affidavit of adjudication with the proper Registry of Deeds  Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation  Filing of bond equivalent to the value of personal property If there is no disagreement between the heirs If there is disagreement If only heir

one

The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds. They may divide the estate in an ordinary action of partition. He may adjudicate to himself the entire estate by means of an affidavit filed in the Registrar of Deeds.

Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed of deprived heirs and creditors. [Sec. 1, Rule 74] Publication Fact of the extrajudicial settlement shall be published in a newspaper of general circulation 3 times a week, once each week. [Sec. 1, Rule 74] Not binding on any person who: (1) Has not participated in the extrajudicial settlement; or (2) Had no notice thereof. [Sec. 1, Rule 74] Validity of oral partition Such is VALID, because there is no law that requires partition among heirs to be in writing to be valid. [Pada Kilario v. CA (2000)] Requirement under Rule 74.1 is merely for the protection of creditors and the heirs themselves against tardy claims. Where there are no creditors, the requirements no longer apply. Validity of compromise agreement Such is VALID, binding upon the parties as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement. No preclusion proceedings

from

instituting

administration

Sec. 1, Rule 74 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Sec. 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do as if they have good reasons to take a different course of action. [Pereira v CA (1989)]

B. Two-year period

prescriptive

Claim by creditors and deprived heirs must be filed within 2 years from the time of distribution/ publication. Presumption of no debts It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. [Sec. 4, Rule 74]

C. Affidavit of Selfadjudication by sole heir If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of register of deeds. Bond Requirement File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed

D. Summary settlement of estates of small value, when allowed This shall be applicable to testate or intestate proceedings. When Allowed (1) Gross value of estate: x < P300,000 outside Metro Manila and x < 400,000 in Metro Manila (2) Fact is made to appear to the RTC (3) Through petition of an interested person (4) Upon hearing  Held not less than 1 month nor more than 3 months  Counted from the date of the last publication of a notice (5) Notice  Which shall be published once a week for 3 consecutive weeks  In a newspaper of general circulation in the province  It is not required that publication be for a complete 21 days. What is required is that it be published for once a week for 3 consecutive weeks.

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REMEDIAL LAW REVIEWER (6) Notice to interested persons as the court may direct.

232

Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay, (7) to grant, if proper, allowance of the will, if any there be (8) to determine who are persons legally entitled to participate in the estate (9) to apportion and divide among them after the payment of such debts of the estate (10) persons in own right if of lawful age, or their guardians, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively Procedure Death of the decedent  Application for summary settlement with an allegation that the gross value of the estate does not exceed P10K  Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct)  Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice  Court to proceed summarily, without appointing an executor/administrator (executor/administrator), and to make orders as may be necessary  Grant allowance of the will, if any  Determine persons entitled to estate  Pay debts of estate which are due  Filing of bond fixed by the court  Partition of estate Notes: There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court will make provisions for such in its resolution of the proceedings.

E. Remedies of aggrieved parties after extrajudicial settlement of estate Two-Year Period for Liability of Distributees and Estate for Claims of Deprived Heirs or Unpaid Creditors

If it shall appear within 2 years after the summary settlement and distribution that there is an heir or other person who (1) has been unduly deprived of his lawful participation in the estate:  He shall have a right to compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation (2) has been unduly deprived of his lawful participation payable in money: The court having jurisdiction of the estate may, by order for that purpose, after hearing,  settle the amount of such debts or lawful participation, and  order how much and in what manner each distributee shall contribute in the payment thereof, and  may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and real estate shall remain charged with a liability to creditor, heirs or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made. Heir/person deprived of lawful participation in estate REMEDY within 2 yr. period: May compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.

Heir/person deprived of lawful participation in PAYABLE IN MONEY REMEDY within 2 yr. period: court may order after hearing, the settlement of the debt or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof and may issue execution, (1) against bond, or (2) against the real estate belonging to the deceased, or (3) both. [Sec. 4, Rule 74].

Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years prescribed in the preceding section the person authorized to file a claim is: (1) a minor or mentally incapacitated, or is in prison or (2) outside the Philippines, he may present his claim within 1 year after such disability is removed. Duty of the court (1) Hear the case (2) Settle the amount (3) Order how much and in what manner each distribute shall contribute in the payment thereof

REMEDIAL LAW REVIEWER (4) If circumstances require, issue execution against the bond, or the real estate belonging to the deceased, or both Bond and real estate remain charged Bond charged with a liability to creditors, heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made Rule not applicable: (1) To persons who have participated or taken part or had notice of the extrajudicial partition (2) When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians) This is only a Bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto

Action to Annul a Deed of Extrajudicial Partition

A. Nature of proceeding

probate

General Rule: A probate proceeding only looks at extrinsic validity and not intrinsic validity. Probate is merely the determination of whether or not the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law Exception: Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. It may pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration [Nepomuceno v CA (1985)]. (Ex. When on the face of the will the petitioner appears to be preterited) But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings)

Prescriptive period Action to annul a deed of extrajudicial settlement upon the ground of fraud may be filed within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents respectively).

Decree of probate is conclusive as to its due execution, subject to the right of appeal

HOWEVER in Amerol v. Bagumbaran (1987), the Court applied the New Civil Code. Under Article 1144 (NCC), the following actions must be brought within 10 years from the time the right of action accrues: (1) upon a written contract (2) upon an obligation created by law (3) upon a judgment.

Rodelas v Aranza (1982): General Rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will.

Since implied or constructive trusts are obligations created by law, then the prescriptive period to enforce the same prescribes in 10 years. Thus, an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise.

Exception: A photostatic copy or Xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator.

Exception Prescriptive period for the filling of the action for reconveyance based on implied trust should be reckoned from the actual discovery of the fraud where the registration where there was bad faith in securing the certificates of titles and, is therefore a holder of the said certificate in bad faith. The Torrens title does not furnish a shield for fraud.

III. PRODUCTION AND PROBATE OF WILL A. Nature of probate proceeding B. Who may petition for probate; persons entitled to notice

Suit for forgery of a will, which has been duly probated and such order becoming final, Bars such suit because the will is conclusively deemed as duly executed.

B. Who may petition for probate; persons entitled to notice Petitioner for the allowance of the will (1) Executor (2) Devisee (3) legatee (4) other person interested in the estate (5) testator himself, during his lifetime Meaning of interest in estate In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has claim against the estate like a creditor.

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234

Jurisdiction, how acquired (1) Attaching a mere copy of will or (2) Delivery of will, even if no petition is filed or (3) Filing of the original petition and compliance with Sec 3-4 Rule 76.

IV. ALLOWANCE OR DISALLOWANCE OF WILL A. Contents of petition for allowance of will B. Grounds for disallowing a will C. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate

A. Contents of petition allowance of will

for

(1) Jurisdictional facts (a) Death of the decedent (b) Residence at the time of death in the province where the probate court is sitting (c) Or if he is an inhabitant of a foreign country, his leaving his estate in such province (2) Names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent (3) Probable value and character of the property of the estate (4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court, the name of the person having custody of it. Defect in petition Defect in petition will not void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

B. Grounds for disallowing a will (1) If not executed and attested as required by law (2) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution (3) If executed under duress, or the influence of fear, or threats (4) If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit (5) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto Note: The grounds for disallowance of will are exclusive.

C. Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate

Reprobate Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Requisites for Allowance (1) Copy of the will (2) Order or decree of the allowance in foreign country (3) Filed with a petition for allowance in the Philippines by executor or other person interested (4) Court shall fix a time and place for the hearing (5) Cause notice thereof to be given as in case of an original will presented for allowance. Effect The will shall have the same effect as originally proven and allowed by such court

V. ALLOWANCE OR DISALLOWANCE OF WILL A. When and To whom letters of administration granted B. Order of preference C. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration D. Powers and duties of Executors and Administrators; restrictions on the powers E. Appointment of Special Administrator F. Grounds for removal of administrator

A. When and To whom letters of administration granted When Granted (1) No executor named or (2) Executor or executors are incompetent, refuse the trust, or fail to give bond or (3) Or person dies intestate. To Whom Granted Discretionary upon the probate court

B. Order of preference Order of preference in the grant of administration (1) Surviving spouse or next of kin, or both, or to such person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve. (2) If those in (a) be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve.

REMEDIAL LAW REVIEWER (3) If there is no (b), it may be granted to such other person as the court may select. Reason for order of preference Those who would reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. Mere failure to apply for letters of administration does not remove preference. Order of Preference NOT Absolute A probate court cannot arbitrarily disregard the preferential rights of the surviving spouse to the administration of the estate of a deceased person but if the person enjoying such preferential rights is unsuitable the court may appoint another person. [Silverio v. CA (2007)] The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. The selection of an administrator lies in the sound discretion of the trial court. [In Re Suntay (2007)] 30-day period may be waived Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative, ―may be granted to one or more of the principal creditors.‖ Co-administrators may be appointed. Court may reject order circumstances warrant.

of

preference

when

C. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration Opposition to testamentary

issuance

of

letters

Who may oppose: Any person interested in will Form required: State in writing the grounds why letter should not issue; the court shall then hear and pass upon sufficiency of such grounds. Simultaneous filing of Opposition and Petition: A petition may, at the same time, be filed for letters of administration with the will annexed. Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings.

Opposition to administration Grounds

petition

for

letters

of

(1) Incompetency of the person for whom letters are prayed, or (2) Contestant‘s own right to the administration Simultaneous Filing of Letters He may pray that letters issue to himself, or to any competent person or person named in the opposition.

D. Powers and duties of Executors and Administrators; restrictions on the powers General Powers and Duties Executors and Administrators

of

1. Executor or Administrator to Have Access to Partnership Books and Property at All Times (a) Have access to, and may examine and take copies of, books and papers relating to the partnership business, (b) Examine and make invoices of the property belonging to such partnership (c) The surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. Court‘s duty: order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

2. Keep Buildings Repair

in

Tenantable

(a) Houses and other structures and fences belonging to the estate, and (b) Deliver the same in such repair to the heirs or devisees when directed so to do by the court.

3. Right to Possession Management of the Real Personal Properties

and and

(a) So long as it is necessary for the payment of the debts and the expenses of administration (b) Administrator cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other coowners since this is not within the powers of administrator. Note: When the estate of a deceased is already subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court.

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236

The right of an executor/administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration

Restrictions on Powers of Executors and Administrators 1. Executor or Administrator Chargeable with all Estate and Income Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory: (a) With all the interest, (b) Profit (c) Income of such estate and (d) With the proceeds of as much of the estate as is sold by him, at the price at which it was sold.

2. Prohibited from Profiting by Increase or Losing by Decrease in Value (a) No executor/administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate (b) Account for the excess (when sold for more) (c) If sold for less, not responsible for loss, if in good faith (d) If settled claim for less - He is entitled to charge in his account only the amount he actually paid on the settlement (e) Not accountable For debts due the deceased which remain uncollected without his fault

3. Accountable for Income Realty Used by Him

from

If the executor/administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final

4. Accountable if He Neglects or Delays to Raise or Pay Money (a) Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or (b) Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss. (c) Executor‘s/administrator‘s responsibility for damages incurred cannot be shifted to the intestate estate.

5. Only Necessary Expenses shall be allowed (a) The amount paid by an executor/administrator for costs awarded against him shall be allowed in his administration account (b) Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith. (c) Administrator may not recover attorney‘s fees from estate Necessary expenses: Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto

6. Executor

or Administrator Render Account

to

Accounting - Within 1 year from the time of receiving letters testamentary or of administration - Unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate Further accounts - If court requires - The rendering of an accounting by an administrator of his administration within 1 year from his appointment is mandatory. The only exception is when the court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate - The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator not only because to so hold would be a derogation of the pertinent rules but also because there is nothing provided in said partition that the aforesaid accounts shall be deemed waived or condoned. Examination on Oath by Court - As to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof - The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account.


E. Appointment of Special Administrator When appointed (1) When there is delay in granting letters testamentary or administration, or (2) By any cause, including an appeal from allowance or disallowance of a will. Duties Will take possession and charge of the estate until: (1) the questions causing the delay are decided and (2) executor/administrator appointed Procedure for appointment There must first be notice and publication. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. Appointment of special administrator lies entirely in the sound discretion of the court. Powers and Duties of Special Administrator (1) Take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and (2) Preserve the same for the executor/administrator afterwards appointed, (3) and for that purpose may commence and maintain suits as administrator. (4) May sell only such perishable and other property as the court orders sold. (5) Not liable - to pay any debts of the deceased unless so ordered by the court. When Special Administrator Ceases Duties When letters testamentary/administration are granted on the estate of the deceased (1) He shall deliver to the executor/administrator the goods, chattels, money, and estate of the deceased in his hands. (2) The executor/administrator may prosecute to final judgment suits commenced by such SA.

F. Grounds for removal of administrator Grounds for removal of executor or administrator (1) Neglects to: (a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court, or a duty expressly provided by these rules (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge the trust. Effect of Removal (1) The remaining executor/administrator may administer the trust alone, unless the court grants letters to someone to act with him. (2) If there is no remaining executor/administrator, administration may be to any suitable person.

VI. CLAIMS AGAINST THE ESTATE A. Time within which claims shall be filed; exceptions B. Statute of Non-claims C. Claim of Executor or administrator against the Estate D. Payment of Debts Estate burdened with lien of creditors Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law Purpose of presentation of claims against estate (1) To protect the estate of the deceased. (2) That way, the executor/administrator will be able to examine each claim, determine whether it is a proper one which should be allowed. (3) The primary object of the provisions requiring presentation is to appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by prorata portion in the due course of the administration, inasmuch as upon the death of a person, his entire estate is burdened with the payment of his debts and no creditor shall enjoy any preference or priority all of them shall share pro-rata in the liquidation of the estate of the deceased

A. Time within which claims shall be filed; exceptions Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice

B. Statute of Non-claims Claims Covered (1) Claims for money against the decedent arising from contract - Express or implied - Due or not - Contingent or not (2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent. The period, once fixed by the courts, is mandatory

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238

Effect of non-claim – forever barred Failure to make the claim within the time fixed by the Courts will result in barring any recovery. Purpose: to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations have not yet prescribed. De Bautista v De Guzman (1983): Rule 86.5 is mandatory so that the estate of the deceased can be protected against fraudulent complaint. Thus, upon the dismissal of the first complaint, the plaintiffs should have presented their claims before the intestate proceedings then pending in the same court. The failure to present their claims before the intestate proceedings of the estate of decedent within the prescribed period constituted a bar to a subsequent claim against the estate or a similar action of the same import. EXCEPTION: (1) When set forth as counterclaims in any action that the executor/administrator may bring against the claimants (2) If the decedent is a creditor and the executor or administrator commences an action or continues the action - the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court. Mutual claims may be set off against each other in such action. Effect if a debtor obtains a favorable judgment against the estate: the amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings Rule on belated claims The Court has the discretion to allow contingent claims The law gives the probate court discretion to allow claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution. The presentation of money claim may be waived.

C. Claim of Executor or administrator against the Estate Procedure to follow if the executor or administrator has a claim against the estate he represents (1) Executor/Administrator shall give notice thereof, in writing, to the court (2) The court shall appoint a special administrator who shall have the same powers and liabilities

as the general executor/administrator in the adjustment of such claim. (3) The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

D. Payment of Debts Debts Paid in Full if Estate Sufficient (1) After all money claims heard and ascertained; and (2) It appears that there are sufficient assets to pay the debts Executor/administrator shall pay the same within the time limited for that purpose. The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratrix. The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled. Part of Estate from Which Debt Paid When Provision Made by Will (1) Testator provided for payment of debt Expenses of administration, or family expenses shall be paid according to such provisions (2) If not sufficient The part of the estate not disposed of by will shall be appropriated for the purpose Personally First Chargeable for Debts, Then Realty General Rule: Personal estate not disposed of by will shall be FIRST chargeable Exception (1) Not sufficient for the purpose; or (2) Its sale will redound to the detriment of the participants for the estate In which case— - The whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor/administrator, - Court approval must be obtained first - Any deficiency shall be met by contributions in accordance with the provisions of S6 of this rule. Estate to Be Retained to Meet Contingent Claims If court is satisfied that such claim is valid: (1) It may order the executor/administrator to retain in his hands sufficient estate (2) For the purpose of paying the contingent claim when such becomes absolute. If estate insolvent - Retain a portion equal to the dividend of the other creditors.

REMEDIAL LAW REVIEWER Contingent Claim When Allowed (1) When it becomes absolute; (2) Presented to the court or executor/administrator within 2 years from the time limited for other creditors to present their claims; and (3) Not disputed by executor/administrator If disputed It may be proved and allowed or disallowed by the court as the facts may warrant Court ruling: Allowance of contingent claim or Disallowance If allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. Claim not presented after becoming absolute and allowed within 2 year period The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled But the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received. Court to Fix Contributive Shares Where Devisees, Legates, or Heirs Have Been in Possession (1) Possession before debts and expenses paid Court shall - Hear and settle the amount of their several liabilities - Order how much and in what manner each shall contribute - May issue execution as circumstances require. (2) Liability of heirs and distributes Heirs are not required to respond with their own property for the debts of their deceased ancestors. But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate Order of Payment if Estate Is Insolvent Executor/administrator pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of credits) Dividends to Be Paid in Proportion to Claims Each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.

Insolvent Non-Resident His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. Insolvent Resident with Foreign Creditors and Foreign claims proven in another country (1) Executor/administrator in the Philippines had knowledge of the presentation of such claims in such country; and (2) Executor/administrator had opportunity to contest such allowance The court shall: (1) Receive a certified list of such claims, when perfected in such country, (2) And add the same to the list of claims proved against the deceased person in the Philippines (3) So that a just distribution of the whole estate may be made equally among all its creditors But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to their respective claims Order of Payment of Debts Before the expiration of the time limited for the payment of the debts (1) The court shall order the payment thereof, and the distribution of the assets received by the executor/administrator for that purpose among the creditors, (2) As the circumstances of the estate require and in accordance with the provisions of this rule Appeal Taken From a Decision of the Court Concerning the Claim The court may: (1) Suspend the order for payment or order the distribution among creditors whose claims are definitely allowed (2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled  court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. Time to Time Further Orders of Distribution (1) Whole of the debts not paid on first distribution; and (2) If the whole assets not distributed or other assets afterwards come to the hands of executor/administrator. Creditors to Be Paid in Accordance With Terms of Order When an order is made for the distribution of assets among creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the

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REMEDIAL LAW REVIEWER dividend thereon, in accordance with the terms of such order.

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Court Shall Allow Executor or Administrator a Time for Disposing the Estate and Paying Debts and Legacies  Period: x < 1 year - Court may extend the time to x < 6 months per extension - Whole period to the original executor/ administrator MUST be only x < 2 years  Requisites (1) Executor/administrator must apply. (2) Notice must be given as to time and place of hearing. (3) Court must hear the application. Ground for Extension (1) Original executor/administrator dies (2) New administrator appointed Consequence: The court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor/administrator - x < 6 months - Not exceeding 6 months at a time and not exceeding 6 months beyond the time which the court might have allowed to such original executor/administrator - Notice shall be given of the time and place for hearing such application, as required in the last preceding section.

VII. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS A. Actions that may be brought against executors and administrators B. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased

A. Actions that may be brought against executors and administrators Actions Which May and Which May Not Be Brought AGAINST the Executor or Administrator Actions to be brought against Administrators (1) Recover real or personal property or interest therein (2) Or to enforce a lien thereon and (3) Actions to recover damages for an injury to a person or property Claims against the administrator may be presented in the administration proceedings but not against third persons.

An administrator may not pull a third person against his will into the administration proceedings by mere motion for a demand of rentals, but must do so in a separate action Actions which may NOT brought against Administrators Claim for the recovery of money or debt or interest cannot be brought against executors/administrators. Executor or Administrator may Bring or Defend Actions Which Survive For the recovery or protection of the property or rights of the deceased  Covers injury to property i.e. not only limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished. When Recovery of Property Fraudulently Conveyed by Deceased May be Recovered (1) There is deficiency of assets and the deceased, in his lifetime, had conveyed real or personal property, right or interest therein, or debt or credit with intent to defraud his creditors or avoid any right, debt or duty; or (2) Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors; and (3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime. Duty of executor/administrator (1) Commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt or credit for benefit of the creditors (2) Provided, creditors making the application pay such part of the costs and expenses or give security therefor. If a person before granting letters testamentary or administration (1) Embezzles or alienates (2) Any of the money, goods, chattels, or effects of such deceased Consequence: Such person shall be liable to an action in favor of the executor/administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.

B. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased Any creditor may commence and prosecute to final judgment a like action for the recovery of the

REMEDIAL LAW REVIEWER subject of the conveyance or attempted conveyance if the following requisites are satisfied: Allowed in Two Instances (1) If executor/administrator failed to commence such action (a) With court permission (b) In the name of the executor/administrator (c) He files a bond, conditioned to indemnify the executor/administrator against the cost and expenses incurred by such action (2) If conveyance or attempt is made in favor of executor/administrator - No need for court permission - No need for Bond. - Action shall be brought in the name of all the creditors Effect Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable.

VIII. DISTRIBUTION AND PARTITION A. Liquidation B. Project of Partition C. Remedy of an heir entitled to residue but not given his share D. Instances when probate court may issue writ of execution Before there could be a distribution of estate, the following stages must be followed: (1) Liquidation of the estate i.e. payment of obligations of the deceased. (2) Declaration of heirs  to determine to whom the residue of the estate should be distributed. Afterwards, the residue may be distributed and delivered to the heirs. - Determination the right of a natural child - Determination of proportionate shares of distributes.

A. Liquidation Before an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law shall be made to close the proceedings for the settlement, it must be shown that the ―debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate‖ have been paid. General Rule: The following must be paid before distribution: (1) Debts (2) Funeral charges (3) Expenses of administration (4) Allowance to the widow (5) Inheritance tax.

Exception: The distributees give a bond conditioned on the payment of above obligations

B. Project of Partition A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. It is the court that makes that distribution of the estate and determines the persons entitled thereto (1) On application of executor/administrator or person interested in the estate (2) Notice (3) Hearing Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the executor/administrator, or any other person having the same in his possession. If there is a controversy as to who are heirs or shares  heard and decided as in ordinary cases Effect of Final Decree of Distribution (1) In rem and binding against the whole world. (2) All persons having interest in the subject matter involved, whether they are notified or not, are equally bound. (3) The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them. (4) The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Uriarte vs. CFI (1970): A special proceeding intended to effect the distribution of the estate of a deceased person is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the

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intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice; that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy.

C. Remedy of an heir entitled to residue but not given his share The better practice for the heir who has not received his share is to demand his share through a proper motion in the same probate or administrative proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action. [Guilas v. Judge of the CFI of Pampanga, (1972)]

D. Instances when probate court may issue writ of execution (1) To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent‘s assets (2) To enforce payment of expenses of partition (3) To satisfy the costs when a person is cited for examination in probate proceedings

IX. TRUSTEES A. Distinguished from executor/ administrator B. Conditions of the Bond C. Requisites for the removal and resignation of a trustee D. Grounds for removal and resignation of a trustee E. Extent of authority of trustee

A. Distinguished executor administrator

from or

Araneta v. Perez (1962)]: A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. The duties of executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons.

B. Conditions of the Bond

Trustee must file bond before performing Duties (1) Filed with the clerk of court (2) Amount fixed by the judge (3) Payable to the government of Philippines (4) Sufficient and available for the protection of any party in interest If the trustee fails to furnish a bond as required by the court, he fails to qualify as such. Nonetheless, the trust is not defeated by such a failure to give bond, he is considered to have declined or resigned the trust. When Exempt (1) When testator has directed such exemption; or (2) All persons beneficially interested in the trust, request such exemption Exemption may be cancelled at any time Conditions (1) Inventory That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge. Exemption from inventory: (a) When trustee is not the original trustee appointed (b) Court‘s discretion (c) If an inventory has already been filed (2) Faithful management That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed (3) Accounting That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order (4) Settlement of account and deliver estate. That at the expiration of his trust he will settle his account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto.

C. Requisites for the removal and resignation of a trustee (1) Petition by parties beneficially interested (2) Due notice to the trustee (3) Hearing


D. Grounds for removal and resignation of a trustee Grounds for removal (ESIINU) (1) Removal appears ESsential in the interest of petitioner. (2) Trustee is Insane or (3) Otherwise INcapable of discharging his trust or (4) Evidently Unsuitable Resignation He may resign but the court will determine if resignation is proper

E. Extent of authority of trustee Nature of Possession The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust [Salinas v. Tuazon (1931)]. Territoriality of authority of trustee The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic. This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed.

X. ESCHEAT A. When to file B. Requisites for filing of petition C. Remedy of respondent against petition; period for filing a claim Escheat It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction. It is a substantial right of the state and is not a claim based on charity, gratuity or unearned benefit.

A. When to file (1) Person dies intestate; (2) Seized of real property in the Philippines; and (3) Leaves no heir or person by law entitled to the same

B. Requisites for filing of petition

(1) A person died intestate (2) He left no heirs or persons by law entitled to the same (3) Deceased left properties Note: Must be initiated by the Government through the Solicitor General. Fix a date and place for hearing, which shall not be more than 6 months after the entry of the order Direct a copy of the order to be published before the hearing at least once a week for 6 successive weeks in a newspaper of general circulation in the province Court shall adjudge. Procedure Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition:  Deceased was a resident of the Philippines—in the RTC of the province where he last resided  Deceased was a non-resident—in the RTC of the province in which he had an estate  Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part  If the petition is sufficient in form and substance, the court shall fix a date and place for the hearing  The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best  The court shall hear the case and judge whether or not the estate shall be escheated  If the court rules in favor of the Republic,  It shall assign the personal estate to the municipality or city where the deceased last resided, and the real estate to the municipalities or cities, respectively, in which the same is situated.  If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. Effect if Escheat is Granted Personal estate  goes to the municipality or city of last residence Real estate  goes to the municipality or city where same is situated

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C. Remedy of respondent against petition; period for filing a claim Period to appeal and claim the estate Appeal must be made within 5 years from date of judgment; otherwise, barred forever Filed by whom  Devisee, legatee, heir, widow, widower, or other person entitled to such estate appears  Such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate Period for filing claim 5 years from date the property was delivered to the state

XI. GUARDIANSHIP A. General powers and duties of guardians B. Conditions of the bond of the guardian C. Rule on Guardianship over minor Guardianship The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself [Herrera]. Guardian A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs [Herrera]. Basis: Parens Patriae It is the State‘s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties [Nery v. Lorenzo (1972)]. Kinds of Guardians (Regalado) 1. Legal Guardian – deemed as guardian by provision of law, without need of court appointment (Art. 320, CC; Art. 225, FC) 2. Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action. 3. Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. a. Guardian over the person. b. Guardian of the property. c. General Guardian – has custody and care of the ward‘s person and property.

A. General powers duties of guardians

and

 Care and custody of the person of his ward and management of his property.  Management of his property only.  Management of property within the Philippines (in case of non-resident ward).

B. Conditions of the bond of the guardian (Applicable for both Guardianship of Minors and incompetents) (1) To make and return to the court, within three months after the issuance of his letters of guardianship, a TRUE AND COMPLETE INVENTORY of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf (2) To FAITHFULLY EXECUTE THE DUTIES OF HIS TRUST, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education (3) To render a TRUE AND JUST ACCOUNT of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto (4) To perform all orders of the court and such other duties as may be required by law.

C. Rule on Guardianship over minors Parents as Legal Guardians (Art. 225, FC) The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. Where the market value of the property or the annual income of the child exceeds P50,000: (1) The parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than 10% of the value of the property or annual income. (2) A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides, or if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. In case of disagreement, the father‘s decision shall prevail, unless there is a judicial order to the contrary.

REMEDIAL LAW REVIEWER Bautista vs. Bautista (1952): A father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward‘s property and only with court‘s approval. Valencia vs. Lagdameo (): The remedy of vendees prejudiced by the illegal transactions of a natural guardian involving the property of the minor child lies only against the natural guardian, not however to recover ownership and possession of the properties sold but only to recover damages.

Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) Scope and Applicability The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment [Sec. 1]. However, if the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond [Sec. 16]. The Rule on Guardianship of Minors applies to petitions for guardianship over the person or property, or both, of a minor. The Rules on Guardianship (Rules 92-98, RoC) apply only to guardianship of incompetents other than a minor.

Petition for Appointment of Guardian

Contents of petition (1) Jurisdictional facts (2) Name, age and residence of the prospective ward (3) Ground rendering the appointment necessary or convenient (4) Death of the parents of the minor or the termination, deprivation or suspension of their parental authority (5) Remarriage of the minor‘s surviving parent (6) Names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody (7) Probable value, character and location of the property of the minor (8) Name, age and residence of the person for whom letters of guardianship are prayed. The petition shall be verified and accompanied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. Who may file Opposition (1) Any interested person (2) The social worker ordered to make the case study report, if he finds that the petition for guardianship should be denied (Sec. 9). How: By filing a written opposition.

Who may file (1) Resident minor (a) Any relative or other person on behalf of a minor (b) The minor himself, if 14 years of age or over (c) The Secretary of DSWD or the Secretary of DOH, in the case of an insane minor who needs to be hospitalized. (2) Non-resident minor (a) Any relative or friend of such minor (b) Anyone interested in his property, expectancy or otherwise.

(3) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority (4) When the best interests of the minor so require.

in

Where to file  Resident minor - Family Court of the province or city where the minor actually resides  Non-resident minor - Family Court of the province or city where his property or any part thereof is situated Grounds for filing (1) Death, continued absence, or incapacity of his parents (2) Suspension, deprivation or termination of parental authority

Grounds for filing (1) Majority of the minor (2) Unsuitability of the person for whom letters are prayed.

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Filing of petition.  Court shall fix a time and place for hearing.  Notice requirement Court shall cause reasonable notice to be given to:  The persons mentioned in the petition  The minor, if he is 14 years of age or over - For non-resident minors, notice shall be given to the minor by publication or any other means as the court may deem proper. The court may also direct other general or special notice to be given.  Case Study Report Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing.  Hearing  Compliance with notice requirement must be shown.  The prospective ward shall be presented to the court. If the minor is non-resident, the court may dispense with his presence.  At the discretion of the court, the hearing on guardianship may be closed to the public.  The records of the case shall not be released without court approval.  Issuance or denial of letters of guardianship.  Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order.

The Guardian Order of Preference of Appointment (in default of parents or a court-approved guardian) (1) The surviving grandparent. In case several grandparents survive, the court shall select any of them taking into account all relevant considerations. (2) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified. (3) The actual custodian of the minor over 21 years of age, unless unfit or disqualified. (4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor Qualifications The court shall consider the guardian‘s: (1) Moral character

(2) (3) (4) (5)

Physical, mental and psychological condition Financial status Relationship of trust with the minor Availability to exercise the powers and duties of a guardian for the full period of the guardianship (6) Lack of conflict of interest with the minor (7) Ability to manage the property of the minor. Powers and Duties  In general (1) Guardian of resident minor: Care and custody of the person of his ward and the management of his property, or only the management of his property. (2) Guardian of non-resident minor: Management of all his property within the Philippines 

Specific duties (1) To pay the just debts of the ward out of: (a) Personal property and the income of the real property of the ward, if the same is sufficient (b) Real property of the ward upon obtaining an order for its sale or encumbrance. (2) To settle all accounts of his ward (3) To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects (4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose (5) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so (6) To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: (a) Authority granted by the court after hearing (b) Notice to relatives of the ward, and (c) A careful investigation as to the necessity and propriety of the proposed action. (7) To submit to the court a verified inventory of the property of the ward: (a) Within three months after his appointment (b) Annually, and (c) Whenever required upon the application of an interested person. (8) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition

REMEDIAL LAW REVIEWER (9) To render to the court for its approval an accounting of the property: (a) One year from his appointment (b) Every year thereafter, and (c) As often as may be required.

Bonds of Guardians When filed: Before a guardian enters upon the execution of his trust, or letters of guardianship issue. Amount: As determined by the Court. Conditions: The guardian is: (1) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete inventory of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf (2) To faithfully execute the duties of his trust, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education (3) To render a true and just account of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto (4) To perform all orders of the court and such other duties as may be required by law. Posting of new bond Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond. Requirements (1) Due notice to interested persons (2) No injury must result to those interested in the property. Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Reimbursement of Reasonable Expenses and Payment of Compensation The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust. The court may allow payment of compensation for his services as the court may deem just, not exceeding 10% of the net income of the ward, if any otherwise, in such amount the court determines to be a reasonable compensation for his services.

Embezzlement, Concealment, or Conveyance of Ward’s Properties The court may require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance, upon complaint of: (1) The guardian or ward, or (2) Any person having actual or prospective interest in the property of the ward. Selling and Encumbering the Property of the Ward Grounds (1) When the income of a property under guardianship is insufficient to maintain and educate the ward (2) When it is for the benefit of the ward that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property. How: Verified petition filed by the guardian. Order to Show Cause The court shall order the ward‘s next of kin and all persons interested in the property to appear at a reasonable time and place and show cause why the petition should not be granted. At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require. Order for Sale or Encumbrance Contents: (1) Grounds for the sale or encumbrance. (2) Manner of sale (public or private) (3) Time and manner of payment (4) Security, if payment deferred (5) Additional bond from guardian, if required. Duration: Not more than 1 year, unless renewed. Investment Property

of

Proceeds

and

Management

of

The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.

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Removal, Resignation, and Termination of Guardianship Removal  How: Upon reasonable notice to the guardian. 

Grounds: The guardian: (1) Becomes insane or otherwise incapable of discharging his trust (2) Is found to be unsuitable (3) Wasted or mismanaged the property of the ward (4) Failed to render an account or make a return for thirty days after it is due.

Resignation  Ground: Any justifiable cause. Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. Termination  Grounds (1) The ward has come of age. (2) The ward has died. 

How (1) Court motu proprio terminates guardianship (2) Upon verified motion of any person allowed to file a petition for guardianship.

The guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices.

XII. ADOPTION A. Distinguish domestic adoption from intercountry adoption B. Domestic Adoption Act C. Inter-country Adoption Adoption A juridical act which creates between two persons a relation similar to that which results from filiation. Lahum vs. Sibulo (2003): Adoption is a privilege governed by the state‘s determination of what is for the best welfare of the child.

A. Distinguish domestic adoption from inter-country adoption See Annex A.

B. Domestic Adoption Act RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children.

Effects of adoption Parental Authority (Sec.16) All legal ties bet. biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter Legitimacy (Sec.17) The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes, and entitled to all rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Adoptee is entitled to love, guidance, and support. Succession (Sec.18) Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Book of Adoptions The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with the court‘s order, and all incidents arising after the issuance of the decree. Confidentiality of Adoption Proceedings All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used.

Instances when adoption may be rescinded Rescission of Adoption of the Adoptee  Who may file (1) Adoptee who is over 18 years of age (2) If the adoptee is a minor, with the assistance of the DSWD (3) If the adoptee is over 18 years of age but incapacitated, by his guardian or counsel.


Grounds: Committed by the adopter (1) Repeated physical and verbal maltreatment despite having undergone counseling (2) Attempt on the life of the adoptee (3) Sexual assault or violence (4) Abandonment or failure to comply with parental obligations. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.



Where to file: Family Court of the city or province where the adoptee resides.



When to file: (1) Within 5 years after reaching age of majority (2) If he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency.

Effects of rescission of adoption (1) RESTORATION OF PARENTAL AUTHORITY to original parent if adoptee is a minor. (2) RECIPROCAL RIGHTS AND OBLIGATIONS of adopter and adoptee are EXTINGUISHED . (3) CANCELLATION of amended birth certificate and RESTORE ORIGINAL. (4) SUCCESSIONAL RIGHTS SHALL REVERT to its status PRIOR TO ADOPTION, as of the date of final judgment of rescission. (5) VESTED RIGHTS shall be RESPECTED.

C. Inter-country Adoption RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: (1) Foreign nationals, and (2) Filipino citizens permanently residing abroad.

When allowed Inter-country Adoption as the Last Resort The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that inter-country adoption is in the best interest of the child (Sec. 7, RA 8043).

Functions of the RTC (1) Filing of petition may be made with the Family Court having jurisdiction over the place where the child resides or may be found. (2) Court shall determine whether or not petition is sufficient in form and substance and a proper case for inter-country adoption. (3) Transmit the petition to the ICAB for appropriate action.

―Best interest of the minor‖ standard The Inter Country Adoption Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that intercountry adoption is in the best interest of the child.

XIII. WRIT OF HABEAS CORPUS A. Contents of the petition B. Contents of the Return C. Distinguish peremptory writ from preliminary citation D. When not proper/applicable E. When writ disallowed/discharged F. Distinguish from writ of Amparo and Habeas Data G. Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (AM No. 03-04-04-SC) WRIT OF HABEAS CORPUS Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restrain is illegal Can only be suspended in cases if in cases or rebellion or invasion and when public interest requires it (Art. III Sec. 15) Vital purposes: In General (1) To obtain relief from illegal confinement (2) To liberate those who may be imprisoned without sufficient cause (3) To deliver them from unlawful custody In the case of minors (1) To enable parents to regain custody of a minor daughter, even though the latter be in the custody of a third person of her own free will (2) To resolve questions of custody of a minor The underlying rationale is not the illegality if the restraint but the right of custody Who may issue the writ (1) The SC,CA, and RTC have concurrent jurisdiction to issue WHC (2) Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the WHC in relation to custody of minors Moncupa v. Enrile (1986) (a) Where a person continued to be unlawfully denied one or more of his constitutional rights (b) Where there is present denial of due process (c) Where the restraint is not merely involuntary but appear to be unnecessary (d) Where a deprivation of freedom originally valid has in light of subsequent developments become arbitrary The person concerned or those applying in his behalf may still avail themselves of the privilege of the

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Extends to all cases of illegal confinement or detention by which any person any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Prime specification of the application for a writ of habeas corpus is restraint of liberty. Not an inquisition between private parties, but an inquisition by the government proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring  Ex parte Bollman: the question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts  In the case if People v. Valte (1922), it was stated that the writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from illegal restraint Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraint. WHC may be used with writ of certiorari for purposes of review:  The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts  WHC reaches the body of the jurisdictional matters, but not the record. Writ of certiorari reaches the record but not the body  While generally, the WHC will not be granted when there is and adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases  Generally, WHC is not the proper remedy for the correction of errors of fact or law Exception: Error affects court‘s jurisdiction (making the judgment void)  WHC does not lie where the petitioner has the remedy of appeal or certiorari  WHC is not proper: To assert or vindicate denial of right to bail For correcting errors in appreciation of fact or law HC and not prohibition is the proper remedy for reviewing proceedings for deportation of aliens

A. Contents Petition

of

the

Application for the writ shall be by petition signed and verified by the party for whose relief it is intended, or by some person on his behalf  Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shoes some authorization to make the application Shall set forth: (1) That the person in whose behalf the application is made is imprisoned or restrained of his liberty (2) The officer or name of the person by whom he is so imprisoned or retrained or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended (3) The place where he is so imprisoned or restrained, if known (4) A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear. Procedure: (1) Application for the writ by petition (2) Grant by court or judge (3) Clerk of Court issues the writ under the seal of court (in case of emergency, by the judge himself) (4) Service: - By whom: sheriff or other proper officer - How: leaving the original with the person to whom it is directed and preserving a copy on which to make return - To whom: officer in custody or any officer (when in custody of person other than an officer) (5) Execution – officer bring the person before the judge

B. Contents Return

of

the

Made by the person or officer in whose custody the prisoner is found: (1) Whether he has or has not the party in his custody or power, or under restraint (2) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held (3) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge (4) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to

REMEDIAL LAW REVIEWER whom, at what time, for what cause, and by what authority such transfer was made.

If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.

Even if the arrest of a person is illegal, supervening events may Bar his release or discharge form custody  The legality of the detention is inquired into at the earliest, the application for a WHC  Among the supervening events is the issuance of a judicial process (defined as a writ, warrant, subpoena, or other formal writing issued by authority of law)  Another supervening event is the filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail (Velasco v. CA,1995)  Filing of an information for the offense for which the accused is detained Bars the availability of WHC

C. Distinguish Peremptory Writ from Preliminary Citation

Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC. The proper remedy is a motion to quash warrant of arrest and/or information before the trial court

Preliminary citation – requires the respondent to appear and show cause why the peremptory writ should not be granted

Posting of a bail is not a waiver of the right to challenge the validity of the arrest, and therefore the right to resort to WHC (Revised Rules of Crim Pro Sec. 26)

The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases, unless the return is made and signed by a sworn public officer in his official capacity.

Peremptory writ – unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified

D. When Writ Not Proper or Applicable WHC will not issue where: (1) The person alleged to be restrained of his liberty is in custody of an officer (2) Under process issued by the court or judge (3) By virtue of a judgment or order of a court of record (4) The Court or judge had which has jurisdiction to issue the process, render the judgment or make the order. The operative act is detention or restraint (whether or not physical). If there is none, no WHC will issue despite the possibility of respondent being liable to civil, criminal, or administrative action Judicial discretion is exercised in issuance of the writ, and will not issue as a matter of course General Rule: the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic Exception: Unless there are restraints attached to his release which precludes freedom of action in which case the Court can still inquire into the nature of his involuntary restraint General Rule: WHC will not issue where the person alleged to be restrained of his liberty is in custody of an officer under a process issued by the court which has jurisdiction to do so

A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC

E. When Discharge Not Authorized Discharge from custody will not be allowed if: (1) Jurisdiction appears after the writ is allowed, despite any informality or defect in the process, judgment, or order. (2) Person is charged with or convicted of an offense in the Philippines (3) Person is suffering imprisonment under lawful judgment (4) If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death (5) Even if the arrest of a person is illegal, due to supervening events (a) Issuance of a judicial process (defined as a writ, warrant, subpoena, or other formal writing issued by authority of law) (b) Another supervening event is the filing before a trial court a complaint which issued a hold departure order and denied motion to dismiss and to grant bail (Velasco v. CA,1995) (c) Filing of an information for the offense for which the accused is detained bars the availability of WHC Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC Proper remedy is a motion to quash warrant of arrest

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A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC

F. Distinguished from Writ of Amparo and Habeas Data See Annex B.

G. Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC) Applicability  Applies to petitions for custody of minors and writs of habeas corpus in relation thereto.  Rules of Court shall apply suppletorily. Petition for Rightful Custody  Verified petition for the rightful custody of a minor may be filed by any person claiming such right.  Party against whom it may be filed shall be designated as the respondent.  Filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. Contents: (1) The personal circumstances of the petitioner and of the respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (3) The material operative facts constituting deprivation of custody (4) Such other matters which are relevant to the custody of the minor Verified and accompanied with a certificate against forum shopping signed by the petitioner personally. If court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent. Answer to the Petition General rule: Motion to dismiss the petition is not allowed. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. Exception: On the ground of lack of jurisdiction over the subject matter or over the parties.

 Personally verified and filed within 5 days after service of summons.  Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pre-trial. Mandatory pre-trial  Notice - 15 days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) Fixing a date for the pre-trial conference (2) Directing the parties to file and serve their respective pre-trial briefs (3) Requiring the respondent to present the minor before the court. The notice of its order shall be served separately on both the parties and their respective counsels.  Pre-trial brief contains the following: (1) A statement of the willingness of the parties to enter indicating its terms (2) A concise statement of their respective claims (3) Admitted facts and proposed stipulations of facts (4) The disputed factual and legal issues (5) All the evidence to be presented (6) The number and names of the witnesses and their respective affidavits (7) Such other matters as the court may require to be included. Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial. If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed. Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The Court shall then render judgment on the basis of the pleadings and the evidence thus presented. At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have 5 days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial.  After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor to: (1) Both parents jointly

REMEDIAL LAW REVIEWER (2) Either parent (3) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment (4) The eldest brother or sister over 21 years of age (5) The actual custodian of the minor over 21 years of age (6) Any other person or institution the court may deem suitable. Interim Reliefs  Temporary visitation rights - court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents. Unless the court finds said parent or parents unfit or disqualified. The temporary custodian shall give the court and non custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days  Hold Departure Order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending. - The Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission. - The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance. - The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing.  Protection Order (PO)- court may issue a PO requiring any person: (1) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place (2) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded (3) To refrain from acts or omission that create an unreasonable risk to minor (4) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods (5) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court

(6) To comply with such other orders as are necessary for the protection of the minor. Judgment Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties. Writ of Habeas Corpus in Relation to Custody of Minors A verified petition for a writ of habeas corpus involving custody of minors filed with the Family Court. The writ shall be enforceable within the judicial region the Family Court belongs. However, the petition may be filed with a regular court in the absence of the presiding judge of the Family Court provided that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. Petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may be filed with the SC, CA, or with any of its members and shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors.

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XIV. WRIT OF AMPARO A. Coverage B. Distinguish from habeas corpus and habeas data C. Differences between Amparo and search warrant D. Who may file E. Contents of return F. Effects of failure to file return G. Omnibus waiver rule H. Procedure for hearing I. Institution of separate action J. Effect of filing of a criminal action K. Consolidation L. Interim reliefs available to petitioner and respondent M. Quantum of proof in application for issuance of writ of Amparo WRIT OF AMPARO  Literally means to protect  Came originally from Mexico and evolved into many forms (1) Amparo libertad – for protection of personal freedom (2) Amparo contra leyes – for judicial review of the constitutionality of statutes (3) Amaparo casacion – judicial review of constitutionality and legality of judicial decisions (4) Amparo agrario – for protection of peasants‘ rights  AM No 7-9-12-SC (Rules on the Writ of Amparo) was promulgated by the Supreme Court by virtue of the 1987 Constitution stating that the SC has the power to ―[p]romulgate rules concerning the protection and enforcement of constitutional rights…‖ (Art VIII Sec. 5). - Interpreted as the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land. Yano v. Sanchez (2010): The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs.

A. Coverage Remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public

(1) Extralegal killings (killings committed without due process of law) and (2) Enforced disappearances (Sec. of National Defense v. Manalo 2008), the elements of which are: (a) An arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government (b) The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law Enumerates the constitutional rights protected by the writ, which is only the right to life, liberty and security of persons. Limits the coverage because other constitutional rights are already protected through different remedies. However, the coverage is still broader compared to other jurisdictions: (1) Philippine writ covers both actual and threatened violations of constitutional rights (2) Covers not only the public but also private individual and entities ―Right to security‖ as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person. Secretary of Justice v. Manalo (supra): Even if the respondents have escaped from captivity and are physically free, there is a continuing violation of their right to security because there is a violation of freedom from threat by the apparent threat to life, liberty and security of their person from the following facts: (1) Threat of killing their families if they tried to escape (2) Failure of the military to protect them from abduction (3) Failure of the military to conduct effective investigation

B. Distinguish from Writ of Habeas Corpus and Habeas Data See Annex C

C. Distinguish Writ of From Search Warrant

Amparo

Secretary of Defense v. Manalo (2008): The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.

REMEDIAL LAW REVIEWER The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. ―Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control...”

D. Who may file (1) Aggrieved party (2) Any member of the immediate family namely: the spouse, children and parents of the aggrieved party (3) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph or (4) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. Petition may be filed by the aggrieved party or by any qualified person or entity The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions Order which must be followed by those who can sue for the writ i.e. filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others. This provides for the order which must be followed by those who can sue for the writ (1) Necessary for the prevention of indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party (2) Untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party If authorized by (1) or (2), (3) may file Canlas v. NAPICO (2008): The claim to dwelling, assuming there is still a right despite the adverse final and executory judgment, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. Where:

(1) RTC where the threat, act or omission was committed or any of its element occurred (2) Sandiganbayan—unlike the writ of habeas corpus, because public officials and employees will be respondents in amparo petitions (3) Court of Appeals (4) Supreme Court (5) Any justice of such courts May be filed or any day, including Saturdays, Sundays, and holidays; from morning until evening Contents: (1) The personal circumstances of the petitioner; (2) The name and personal circumstances of the respondent responsible for the threat, actor omission or if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (3) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (4) The investigation conducted, if any, specifying the names, the personal circumstances and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (5) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (6) The relief prayed for. May include a general prayer Signed and verified

E. Contents of Return The respondent shall file a verified written return together with supporting affidavits within 72 hours after service of the writ. Contents: (1) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission (2) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission (3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party and (4) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken[...]. (5) The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case.

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F. Omnibus Waiver Rule Defenses not pleaded deemed waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived.

G. Effect of Failure to File a Return In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

H. Procedure for Hearing on the Writ Summary Hearing Hearing on the petition shall be summary. BUT: The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. Prohibited Pleadings and Motions (1) Motion to dismiss (2) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings (3) Dilatory motion for postponement (4) Motion for a bill of particulars (5) Counterclaim or cross-claim (6) Third-party complaint (7) Reply (8) Motion to declare respondent in default (9) Intervention (10) Memorandum‘ (11) Motion for reconsideration of interlocutory orders or interim relief orders and (12) Petition for certiorari, mandamus or prohibition against any interlocutory order. Allows motion for new trial and petition for relief from judgment

I. Institution of Separate Actions The Rule shall not preclude the filing of separate criminal, civil or administrative actions. Neither does the writ of amparo suspend the filing of criminal, civil or administrative actions But a claim for damages should instead be filed in a proper civil action. If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent.

J. Effect of Filing of a Criminal Action When a criminal action has been commenced, NO SEPARATE PETITION for the writ shall be filed. Reliefs under the writ shall be available by motion in a criminal case. Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

K. Consolidation When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition.

L. Interim Reliefs Available Petitioner and Respondent

to

 Upon filing of the petition or at any time before final judgment Interim Reliefs available to the Petitioner (1) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers concerned. The SC shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or aggrieved party and any member of the immediate family, in accordance to the guidelines which it shall issue. The accredited persons and private persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. - Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte (2) Inspection Order. – The court, justice or judge upon verified motion and after due hearing may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring,

REMEDIAL LAW REVIEWER surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearances or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons. - Requires hearing, may be availed of both the petitioner and the respondent - If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the Supreme Court (3) Production Order. – The court, justice or judge, upon verified motion and after due hearing may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. - Only granted upon motion and hearing - Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents

- More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure (4) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. Interim Reliefs available to the Respondent  Inspection Order  Production Order Requisites: (1) Verified motion of the respondent (2) Due hearing (3) Affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

M. Quantum of Proof in Application for Issuance of Writ: Substantial Evidence The parties shall establish their claims by substantial evidence. Respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability Respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. Respondent who is a public official or employee must prove that extraordinary diligence as required as required by the applicable laws, rules and regulations was observed in the performance of duty. Sec. of Justice v. Manalo (supra): With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained.

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XV. CHANGE OF NAME AND CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. Differences under Rule 103, RA 9048 and Rule 108 B. Grounds for change of name

A. Differences under the Applicable Rules (Rule 103, Rule 108, RA 9048) See Annex D

B. Grounds for change of name See Annex D Jurisprudence Laperal vs. Republic (1962): Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103. No Yao Siong v. Republic (1966): The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that which the person is known in the community. Ong Huan Tin v. Republic (1967): An alien may petition for change of name but he must be domiciled in the Philippines. Oshito vs. Republic (1967): Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition for hearing, the court should have required the petitioner to have the petition verified. Go Chiung Beng vs. Republic (1972): All aliases of the applicant must be set forth in the petition‘s title. Such defect is fatal, even if said aliases are contained in the body of the petition. Secan Kok vs. Republic (1973): A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children. Silverio vs. Republic (2007): A person‘s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Rather than avoiding confusion, changing

petitioner‘s first name may only create grave complications in the civil registry and the public interest. No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. People vs. Cagandahan (2008): Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed. Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court.

XVI. ABSENTEES A. Purpose of the Rule B. Who may file; when to file

A. Purpose of the Rule IN RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES (1986): The declaration of absence made in accordance with the provisions of the Civil Code has for its SOLE PURPOSE to enable the taking of the necessary precautions for the administration of the estate of the absentee. There is a need to have a person judicially declared an absentee when: (1) he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); (2) the spouse of the absentee is asking for separation of property (Article 191, Civil Code); or (3) his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her (Article 196, Civil Code).


B. Who may file; when to file Who may file  Petition for Appointment of a Representative (1) Any interested party (2) Relative (3) Friend  Petition for Declaration of Absence and Appointment of Trustee or Administrator (1) The spouse present (2) The heirs instituted in a will, who may present an authentic copy of the same (3) The relatives who would succeed by the law of intestacy (4) Those who have over the property of the absentee some right subordinated to the condition of his death. When to file  Petition for Appointment of a Representative When a person: (1) Disappears from his domicile, his whereabouts being unknown (2) Has not left an agent to administer his property or the power conferred upon the agent has expired.  Petition for Declaration of Absence and Appointment of Trustee or Administrator After 2 years: (1) From the disappearance of and without any news from the absentee OR (2) Since the receipt of the last news about him. After 5 years, if the absentee left an administrator of his property.

XVII. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY A. Entries subject to cancellation or correction under Rule 108, in relation to RA 9048

A. Entries subject to cancellation or correction under Rule 108, in relation to RA 9048 Under RULE 108: SUBSTANTIAL CHANGES in entries in the civil registry, excluding name which is governed by Rule 103. Substantial Change – change that affects the civil status, citizenship, or nationality of a party. (1) Births (2) Marriage (3) Deaths (4) Legal separations (5) Judgments of annulments of marriage

(6) Judgments declaring marriages void from the beginning (7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name Under RA 9048: CLERICAL or TYPOGRAPHICAL ERRORS Clerical Error: A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that: (1) Is harmless and innocuous. (2) Is visible to the eyes or obvious to the understanding (Patent) (3) Can be corrected or changed only by reference to other existing record or records (4) Does not involve the change of nationality, age, status or sex of the petitioner. Such changes have public interest implications and must only be made upon approval of the Court. Silverio vs. Republic (2007): RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 and 108, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. NOTE: The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia (1986)]

XVIII. APPEALS IN SPECIAL PROCEEDING A. Judgments and orders for which appeal may be taken B. When to appeal C. Modes of appeal D. Rule on Advance Distribution

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A. Judgments and orders for which appeal may be taken (1) If it allows or disallows a will (2) If it wholly determines who are the lawful heirs or the distributive shares (3) If it wholly or partially allows or disallows a claim against a decedent‘s estate, or any claim presented on the decedent‘s estate, or any claim presented on the estate‘s behalf on offset to claim against it (4) If it settles the account of an executor/administrator/trustee/guardian (5) If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian Exception: Appointment of a special administrator is not appealable - Remedy: Petition for certiorari under Rule 65, if there is grave abuse of discretion. (6) If it is the final order/judgment rendered in the case, and affects the substantial rights of the person appealing Exception: Orders granting/denying a MFR/MNT While some of the items in Rule 109. Sec. 1 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Rule 41, Sec. 2.

B. When to appeal In a special proceeding, the period of appeal is 30 days. The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final.

C. Modes of appeal NOTICE and RECORD ON APPEAL REQUIRED. Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the case should remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. However, a record on appeal is not necessary where no other matter remained to be heard and determined by the trial court after it issued the appealed order granting the petition for cancellation of birth record and change of surname in the civil registry. [Republic v. Nishina (2010)]

D. Rule on Advance Distribution Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate‘s parts which are not affected by the controversy/appeal be distributed, upon compliance with Rule 90.

REMEDIAL LAW REVIEWER Annex A Domestic Adoption (RA 8552) Governing Body When may adoption be resorted to

DSWD Adoption need not be the last resort

(1) Any FILIPINO CITIZEN (regardless of where residing) (a) of legal age, (b) at least sixteen (16) years older than the adoptee, (may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent) (c) in possession of full civil capacity and legal rights, (d) of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children,

Who may adopt

(e) who is in a position to support and care for his/her children in keeping with the means of the family. (2) Any ALIEN possessing the same qualifications as above stated for Filipino nationals: Provided, (a) that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, (b) that his/her country has diplomatic relations with the Republic of the Philippines, (c) he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and (d) that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: (e) that the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

Intercountry Adoption (RA 8043) Inter-country Adoption Board (ICAB) Adoption only as last resort: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally (Sec.11) (1) FILIPINO CITIZEN permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: (a) is at least twenty-seven (27) years of age (b) at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent: (c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; (d) has not been convicted of a crime involving moral turpitude; (e) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted (f) if married, his/her spouse must jointly file for the adoption; (g) is eligible to adopt under his/her national law; (h) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; (i) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws;

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REMEDIAL LAW REVIEWER (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or

262

(3) The GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. ( Sec. 7) (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; Who may adopted

be

(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption previously rescinded; or

has

(2) ALIEN with above qualifications

a) Filipino children (Sec. 3(a)) b) Below 15 years of age (Sec. 3(b)) c) Who are legally free, meaning children who have been voluntarily or involuntarily committed to the DSWD (Sec. 3(f) and Sec. 8) IRR of 2004 adds that: Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the subject of InterCountry Adoption xxx (Sec. 26)

been

(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). (Sec. 8) Petition for adoption shall be filed with Family Court of the province or city where the prospective adoptive parents reside (Rule on Adoption, Sec. 6)

Venue

Trial Custody

(j) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

Takes place in Philippines Only upon petition of adoptee, never by adopters (Sec.19)

Either with the Philippine RTC having jurisdiction over the child, or with the Intercountry Board through an intermediate agency, in the country of the adoptive parents (Sec. 10) IRR of 2004 provides that: Application shall be filed with the Board or the Central Authority or the Foreign Adoption Agency in the country where the applicant resides. In case of foreign nationals who file petition for adoption under RA 8552 or Domestic Adoption Law, the Court after finding petition to be sufficient in form and substance and proper case for inter-country adoption shall immediately transmit the petition to the board for appropriate action. (Sec. 30) Where adoptive parents reside No provision limiting act of rescission only to adoptee. In IRR, the procedure is provided for when adoption process is terminated:

Rescission

SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. - In the event of serious damage in the relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the

REMEDIAL LAW REVIEWER FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care. The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the pre-adoptive relationship. SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the pre-adoptive relationship, the Board shall identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family.

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REMEDIAL LAW REVIEWER Annex B

264 Rights involved Situations applicable Party authorized to file Respondents Before which court or judicial authority filed

Contents of the petition

COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR MINORS (A.M. 03-04-04) Right to liberty Petition for the rightful custody of a minor Rightful custody of the aggrieved party Actual violation of the aggrieved party‘s right Deprivation of rightful custody Party for whose relief it is intended or by some person in his behalf May or may not be an officer (1) RTC or any judge thereof (2) CA or any member thereof in instances authorized by law (3) SC or any member thereof (4) Special jurisdiction given to first level courts in the absence of RTC judges in a province or city (SECTION 35, BP 129) (5) In aid of appellate jurisdiction of the Sandiganbayan ( RA 8249 further expanding its jurisdiction)

Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (PDIC) (1) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (2) The officer or name of the person by whom he is so imprisoned or restrained or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without any legal authority, such fact shall appear.

A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The verified petition shall allege the following: (PRMO) (1) The personal circumstances of the petitioner and of the respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (3) The material operative facts constituting deprivation of custody and (4) Such other matters which are relevant to the custody of the minor. The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.

REMEDIAL LAW REVIEWER Annex C Writ Matrix (Comparison of the Writs) WHC – Writ of Habeas Corpus WD – Writ of Habeas Data RWD – Rules on Habeas Data CA - Court of Appeals RTC – Regional Trial Court Nature, scope, function

Limitations

Who may file

Where filed

Where enforceable

WA – Writ of Amparo RWA - Rules on the Writ of Amparo SC – Supreme Court SB – Sandiganbayan CoC – Clerk of Court

Habeas Corpus All cases of illegal confinement and detention which any person is deprived of his liberty or rightful custody of any person is withheld from the person entitled (102.1)

Amparo Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity

Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint May be suspended in cases of invasion or rebellion when public safety requires it (Consti. Art. III Sec. 15) By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf (102.3)

It covers extralegal killings and enforced disappearances or threats thereof.

Granted by: (1) SC or any member thereof, on any day and at any time (2) CA or any member thereof in instances authorized by law (3) RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district (102.2) (4) MTC OR FIRST LEVEL COURTS in the absence of RTC judges in a judicial region (section 35 BP 129) If SC or CA issued, anywhere in the Philippines

Habeas Data Involves the right to privacy in life, liberty or security violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Shall not diminish, increase or modify substantive rights (RWA Sec. 23)

Shall not diminish, increase or modify substantive rights (RWD Sec. 23)

Petition filed by the aggrieved party or by any qualified person or entity in the following order: (1) Any member of the immediate family (2) Any ascendant, descendant or collateral relative of the aggrieved within the 4th civil degree of consanguinity or affinity (3) Any concerned citizen, organization, association or institution Filing by the aggrieved suspends the right of all others (RWA Sec. 2 )

Any aggrieved party may file a petition for the WHD

Filed on any day and at any time: (1) SB, CA, SC, or any justice of such courts (2) RTC of place where the threat, act, or omission was committed or any element occurred (RWA Sec. 4)

Petition may be filed with RTC where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of petitioner

However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): (1) Any member of the immediate family of the aggrieved (2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, (RWD Sec. 2)

If public data files of government offices, petition shall be filed with the SC, CA, or SB (RWD Sec. 3)

Writ shall be enforceable anywhere in the Philippines

Writ shall be enforceable anywhere in the Philippines

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REMEDIAL LAW REVIEWER Habeas Corpus

266

Where returnable

If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region (Section 21, BP 129 which modified the term judicial district in Section 2, Rule 102 into judicial region) where the judge sits If the one that granted the writ: (1) Is the SC or CA, or a member thereof, returnable before such court or any member thereof or an RTC (2) An RTC, or a judge thereof, returnable before himself (102.2)

Docket Fees

upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires (102.19)

Essential allegations/ Contents of petition

Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth: (1) The person in whose behalf whose the application is made is imprisoned or restrained of his liberty (2) Name of the person detaining another or assumed appellation (3) Place where he is imprisoned or restrained of his liberty (4) Cause of detention (102.3)

When proper

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then:

Amparo (RWA Sec. 4)

Habeas Data (RWD Sec. 3)

If the one that granted the writ: (1) Is the SC or any of its justices, before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred (2) The SB or CA or any of their justices, before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred (RWA Sec. 3) Petitioner shall be exempted from the payment of the docket and other lawful fees - Court, justice or judge shall docket the petition and act upon it immediately (RWA Sec 4) Signed and verified and shall allege: (1) The personal circumstances of the petitioner (2) Name or appellation and circumstances of the respondent (3) The right to life, liberty, and security violated or threatened with violation, (4) The investigation conducted, if any, plus circumstances of each (5) The actions and recourses taken by the petitioner (6) Relief prayed for

If issued by: (1) The SC or any of its justices, before such Court or any justice thereof, or CA or SB or any of its justices, or the RTC of the place where the petitioner or respondent resides / has jurisdiction over the place where the data or information is gathered, stored or collected (2) The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC) (3) RTC, returnable before such court or judge (RWD Sec. 4) None for indigent petitioner Petition shall be docketed and acted upon immediately, w/o prejudice to subsequent submission of proof of indigency not later than 15 days from filing (RWD Sec. 5) Verified and written petition shall contain: (1) Personal circumstances of petitioner and respondent (2) Manner the right to privacy is violated or threatened and its effects (3) Actions and recourses taken by the petitioner to secure the data or information (4) The location of the files, registers, or databases, the government office, and the person in charge or control (5) The reliefs prayed for

May include a general prayer for other just and equitable reliefs (RWA Sec. 5) Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ

Such other relevant reliefs as are just and equitable (RWD Sec. 6) Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its

REMEDIAL LAW REVIEWER Habeas Corpus  the clerk of court (CoC) shall issue the writ under the seal of the court or  in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it (102.5)

How and who serves

Respondent

How executed and returned

Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned (102.5) Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) or person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service  If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody (102.7) May or may not be an officer

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: - the judge allowing the writ, - or, in his absence or disability, before some other judge of the same court

Amparo if on its face it ought to issue  CoC shall issue the writ under the seal of the court or  In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it

Habeas Data face it ought to issue.  CIC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance or  In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it (RWD Sec. 7)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service  In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (RWA Sec. 8)

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (RWD Sec. 9)

Respondent is a public official or employee or private individual or entity

A public official or employee or a private individual or entity engaged in gathering, collecting or storing data Respondent files the return

Respondent files the return

on the day specified in the writ,  unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein

When to return Contents return

file of

officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof (102.8) On the day specified on the writ When the person to be produced is imprisoned or restrained by an officer the person who makes the return shall state, and in other cases

Within 5 working days after service of the writ Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting

Same with WA (1) Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the

267

REMEDIAL LAW REVIEWER Habeas Corpus the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: (1) Truth of custody/power over the aggrieved (2) If has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held (3) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity (4) If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (102.10)

268

Formalities return

of

Penalties For refusing to issue or serve

For return

faulty

Return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced,  Unless the return is made and signed by a sworn public officer in his official capacity (102.11)  CoC who refuses to issue the writ after allowance and demand,  Or a person to whom a writ is directed, who: (1)neglects/refuses to obey or make return of the same according to the command thereof, (2)or makes false return, (3)or upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be

Amparo affidavits which shall, , contain: (1) Lawful defenses (2) The steps or actions taken to determine the fate or whereabouts of the aggrieved party (3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party (4) If the respondent is a public official or employee, the return shall further state acts: (a) To verify identity of aggrieved party (b) To recover and preserve evidence (c) To identify and collect witness statements (d) To determine cause, manner, location, and time of death or disappearance (e) To identify and apprehend persons involved (f) Bring suspected offenders before a competent court (RWA Sec.9) … the respondent shall file a verified written return together with supporting affidavits… (RWA Sec. 9)

Habeas Data source of information of media etc. (2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (a) A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection (b) The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information (c) The currency and accuracy of the data or information held

 CoC who refuses to issue the writ after its allowance, or  a deputized person who refuses to serve the same,

 COC who refuses to issue the writ after its allowance, or  a deputized person who refuses to serve the same,

shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions (RWA Sec. 7)

shall be punished by the court, justice, or judge for contempt without prejudice to other disciplinary actions (RWD Sec. 8)

 The court, justice, or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resist a lawful process or order of the court to be punished for contempt  Contemnor may be imprisoned or imposed a

The court, justice, or judge may punish with imprisonment or fine a respondent who commits contempt by: (1) Making a false return or (2) Refusing to make a return or (3) Any person who otherwise disobeys or resists a lawful process

Other allegations relevant to the resolution of the proceeding (RWD Sec.10)

Respondent shall file a verified written return together with supporting … (RWD Sec. 10)

REMEDIAL LAW REVIEWER Habeas Corpus punished for (102.16) Is period of return extendable? Is a general denial allowed? Defenses not pleaded

contempt

Amparo fine (RWA Sec. 16) No, not even on meritorious grounds.

Yes. No prohibition in Rule.

highly

No, by virtue if A.M. No. 07-912-SC If not raised in return deemed waived (RWA Sec 10)

Effect of failure to file return

Court or justice shall proceed to hear the petition ex parte (RWA Sec. 12)

Nature Hearing

Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties.  Hearing shall be from day to day until completed same priority as petitions for WHC

of

Date and time of hearing

As specified in the writ

Not later than 7 days from the issuance of the writ

Prohibited pleadings

In custody of minors: a motion to dismiss, except on the ground of lack of jurisdiction

Motion to dismiss, Motion for extension of time to file opposition, affidavit, position paper and other pleadings, Dilatory motion for postponement, Motion for bill of particulars, Counterclaims or cross-claims, Third-party complaint, Reply, Motion to declare respondent in default, Intervention, Memorandum, Motion for reconsideration of interlocutory orders or interim relief orders, petition for certiorari, mandamus, or prohibition (RWA Sec.11) Establish claims by substantial evidence  if respondent is a private individual or entity, ordinary diligence  if public official or employee, extraordinary diligence Public official or employee cannot invoke the presumption that official duty has been regularly performed (RWA Sec. 17)

Burden Proof

of

Presumption of Official duty

Habeas Data or order of the court (RWD Sec. 11) Yes, by the court, for justifiable reasons (RWD Sec. 10) No, by virtue of RWD Sec. 10, last sentence.

Preponderance of evidence

Yes. Consonant wit 102.13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence (RWD Sec. 14) Summary. With possibility of preliminary conference similar to the writ of amparo (RWD Sec. 14) Hearing on chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of public or privileged character (RWD Sec. 12) Not later than 10 working days from the date of issuance writ Same as writ of amparo (RWD Sec. 13)

Substantial evidence required to prove the allegations in the petition (RWD Sec. 16)

269

REMEDIAL LAW REVIEWER Habeas Corpus Judgment

270 Appeals Consolidation of actions Effect of filing criminal action

Within 48 hours from notice of the judgment of final order appealed

Amparo The court shall render judgment within 10 days from the time the petition is submitted for decision (RWA Sec. 18) 5 working days from the date of notice of adverse judgment Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWA Sec. 23) No more separate petition shall be filed. Reliefs available by motion in the criminal case (RWA Sec. 22)

Habeas Data Within 10 days from the time the petition is submitted for decision (RWD Sec. 16) 5 working days from the date of notice of adverse judgment Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWD Sec. 21) Same as WA

REMEDIAL LAW REVIEWER Annex D Applicability

Nature Who May File

Where Filed

Rule 103 Substantial Changes

Judicial 1. The person desiring to change his name 2. Some other person on his behalf RTC of the province in which the person desiring to change his name resides.

Rule 108 Substantial changes in entries in the civil registry (other than name)

Change of Nicknames

RA 9048 First Names

Judicial Natural person having direct and personal interest in the correction of error in an entry in the civil register RTC of the province where the civil registry is located

Change brought about by clerical or typographical errors Administrative A natural person having direct and personal interest in the change of first name or nickname in the civil register. The local civil registry office of the city or municipality where the record being sought to be corrected/changed is kept.

or

EXCEPTIONS:  If the petitioner has already migrated to another place in the country, the petition shall be filed with local civil registrar of the place where the interested party is presently residing or domiciled  If the petitioner is a Filipino citizen presently residing or domiciled in a foreign country, the petition shall be filed in the nearest Philippine Consulate. Rationale: It would not be practical for him, in terms of transportation expenses, time and effort, to appear in person before the local civil registrar keeping the documents to be corrected or changed Standing of the LCR Notice requirement

Not a party to the proceeding No mention of notice to be sent

Contents Petition

Title: In Re: Petition for Change of Name of X, also known as Y and Z, to ABC. X, Petitioner.

of

Names or Aliases of the Applicant (must appear in the caption of the petition)  Omission is fatal to the petition  To allow a reader of the published petition to notice the said aliases Petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the

Made a party to the proceeding as a respondent The court shall cause reasonable notice to be given to persons named in the petition 1. Facts necessary to establish the merits of the petition. 2. A showing that the petitioner is competent to testify to the matters stated. 3. Particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made.

271

REMEDIAL LAW REVIEWER Rule 103 date of such filing.

272

Rule 108

RA 9048

Cause for which the change of the petitioner's name is sought  Petitioner must show a proper or compelling reason for the change of name + the fact that he will be prejudiced by the use of his official name. Form Petition

of

Procedure for Changing of Name

Name asked for The petition shall signed and verified.

be

1. Filing of petition for change of name. 2. Court shall promulgate an order fixing a date and place for hearing the petition. The date set for the hearing shall not be:  Within 30 days prior to an election AND  Within 4 months after the last publication of the notice. 3. Court shall direct a copy of the order to be published before the hearing  At least once a week for 3 successive weeks  In some newspaper of general circulation published in the province. 4. Hearing shall be conducted.  The SolGen or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. 5. Judgment granting or denying the change of name. 6. Copy of judgments shall be furnished the civil registrar of the municipality or city where the court issuing

Verified petition

1. Filing of petition 2. Court shall promulgate an order fixing the time and place for hearing the petition and cause reasonable notice to be given to the persons named in the petition.  Civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding 3. Court shall direct a copy of the order to be published before the hearing  At least once a week for 3 successive weeks  In some newspaper of general circulation published in the province.

1. 2. 3.

In the form of an affidavit Verified Subscribed and sworn to before any person authorized by law to administer oaths. 1.Filing of petition and its supporting papers in 3 copies to be distributed to:  The concerned city or municipal civil registrar or the consul general  The Office of the Civil Registrar General  The petitioner 2.The City or Municipal Registrar or the Consul General shall post the petition in a conspicuous place for ten 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance. 3.The petition shall be published at least once a week for 2 consecutive weeks in a newspaper of general circulation.

5. Hearing shall be conducted.  Court may expedite the proceedings and also grant preliminary injunction for preservation of rights of the parties

4.The City or Municipal Registrar or the Consul General shall render a decision not later than 5 working days after the completion of the posting and/ or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision.  Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

6. Judgment granting or denying the change of name.

5.The Civil Registrar General shall, within 10 working days from receipt of the decision granting a

4. File opposition  Within 15 days from notice of the petition or from the last date of publication

REMEDIAL LAW REVIEWER Rule 103 the same is situated, who shall forthwith enter the same in the civil register.

Rule 108 7. Copy of judgments shall be furnished the civil registrar concerned who shall annotate the same in the records

RA 9048 petition, exercise the power to impugn such decision by way of an objection.  Grounds for objection (a) The error is not clerical or typographical (b) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person (c) The basis used in changing the first name or nickname of a person does not fall under one of the valid grounds. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period, such decision shall become final and executory. 6.The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. 7.Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action.

Opposition

Grounds Change Name

Any interested person

for of

Republic v. Hernandez: Valid Grounds for Change of Name (1) The name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) Change results as a legal consequence of legitimation (3) The change will avoid confusion. (4) A sincere desire to adopt a Filipino name to erase signs of

Civil registrar and any person having or claiming interest under the entry whose cancellation or correction is sought Entries subject to cancellation or correction: (1) Birth (2) Marriage (3) Death (4) Legal separation (5) Judgment of annulment (6) Judgment declaring marriage null and void (7) Legitimation (8) Adoption (9) Acknowledgment of natural children (10) Naturalization (11) Election, loss or recovery of citizenship

8.Appeal. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court. N/A NOTE: The Civil Registrar General is given the power to object to the decision of the Local Civil Registrar. Sec. 4: Grounds for Change of First Name or Nickname (1) The first name or nickname is ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community.

273


274

Rule 103 former alienage (Ang Chay vs. Republic, 1970) (5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage (Uy vs. Republic, 1965)

Rule 108 (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of minor (15) Changes of name

RA 9048 (3) The change will confusion.

avoid

Up Remedial Law Reviewer

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