CONTRIBUTORS: REMEDIAL LAW

Office of the Dean:

Atty. Gemy Lito L. Festin Dean, PUP

REVIEWER
College of Law CONTENTS:

Chapter I General Principles .............. Page 001

Faculty BarOps: Chapter II Jurisdiction .................. Page 004

Chapter III Civil Procedure .............. Page 012

Atty. Maria Christina Gimenez, Atty.
Arnel Mateo, Atty. Judy Lardizabal, Chapter IV Special Proceedings .................. Page 117
Atty. Benzon Judd Cong, Atty. Ronald
Crisanto Mercado and Faculty Club Chapter V Criminal Procedure .............. Page 153

Chapter VI Evidence .................. Page 191

BarOps Core Group:

Jay Salendab, Sylvia Sarmiento,

Romie Rose Alcaraz, Kolleen De
Guzman, Roberto Valerio, Erold John
Beunaflor

Remedial Law Team:

John Ramil Rabe, Khristian Jeff

Episcope, Sylvia Patricia Sarmiento,
Sabrina Herhandez
 REMEDIAL LAW REVIEWER
I. GENERAL PRINCIPLES
1.1. CONCEPT OF REMEDIAL LAW
Remedial law- branch of law which prescribes the
method of enforcing the rights and obtaining redress
for their invasions.
Remedial statutes refers to statutes relating to
remedies or modes of procedure, which do not create
new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of rights
already existing.
Mechanics of due process as part of remedial law
1. A court or tribunal clothed with judicial
power to hear and determine matters
before it
2. Jurisdiction must be lawfully acquired over
the person of the defendant or over the
property which is the subject of the
proceeding.
3. Defendant must be given an opportunity to
be heard and
4. Judgment must be rendered upon a lawful
hearing
1.2. SUBSTANTIVE LAW vis--REMEDIAL
LAW
Substantive law creates defines and regulates rights;
while procedural law prescribes the rules and forms
of procedure in the administration of justice.
Substantive law cannot be waived, while procedural
law can be waived or subject to agreement of the
parties.
Procedural laws have retroactive application.
They are considered applicable to actions pending
and unresolved at the time of their passage.
Procedural laws and rules are retroactive in that
sense and to that extent. The effect of procedural
statues and rules on rights of a litigant may not
Chapter I General Principles
preclude in their retroactive application to pending
actions.
Pg.
1.3. RULE-MAKING POWER OF THE 1
SUPREME COURT
Power to promulgate rules of procedure lodged with
the Supreme Court: Constitutional basis Sec. 5, Art.
VIII, par 5 of 1987 Constitution
5.) 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 under-privileged. Such
rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases, shall be uniform for all
courts of the same grade, and shall not
diminish, increase, or modify substantive
rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme
Court.
1.3.1 Limitations on the rule-making power of
the Supreme Court
a. Simplified and inexpensive procedure for
speedy disposition of cases
b. They shall be uniform in all courts of same
grade
c. They shall not dismiss, increase, or modify
substantive rights
1.3.2. Power of the Supreme Court to amend
and suspend procedural rules
It is discretionary upon courts to suspend procedural
procedures for the purpose of justice.
 REMEDIAL LAW REVIEWER
1.4. NATURE OF PHILIPPINE COURTS
1.4.1. Meaning of a court
Court is the tribunal clothed with the power and
authority to entertain and resolve legal disputes
between the parties to carry out dispensation of
justice in accordance with the law. A judge is a public
officer who exercises the power of the court in
dispersion of justice.
1.4.2. Court as distinguished from a judge
A judge is a public officer who exercises the power of
the court in dispersion of justice.
A court is more of a permanent status or existence
while judge is mere temporary.
1.4.3. Classification of Philippine courts
a. First level MTCs
b. Secondary level RTCs and Family Courts
c. Third level Court of Appeals and
Sandiganbayan
d. Fourth level - Supreme Court
Courts outside the Judicial System
Tribal courts - This are courts which are exiting under
the customs and traditions of an indigenous cultural
community and are not part of the Philippine Judicial
System.
Decisions of a tribunal based on a compromise may
be enforced or set aside, in and through regular
courts only.
Military Courts These are not judicial courts. They
are agencies of executive in character. Their decision
are not appealable to the courts but would pass the
reviewing and conferring authority, but the Supreme
Court may exercise its supervision or correcting
power over the court-martial proceedings when
jurisdictional errors are involved or when there is
grave abuse of discretion.
Chapter I General Principles
1.4.4. Courts of original and appellate
jurisdiction
A court is one with original jurisdiction when actions
or proceedings are originally filed with it. A court is
Pg.
one with appellate jurisdiction when it has the power
2
of review over the decisions or orders of a lower
court.
1.4.5. Courts of general and special jurisdiction
Courts of general jurisdiction are those with
competence to decide on their own jurisdiction and
to take cognizance of all cases, civil and criminal, of a
particular nature.
Courts of special (limited) jurisdiction are those which
have only a special jurisdiction for a particular
purpose or are clothed with special powers for the
performance of specified duties beyond which they
have no authority of any kind.
1.4.6. Constitutional and statutory courts
Constitutional SC
Statutory Court of Appeals, Sandiganbayan, Court
of Tax Appeals, Regional Trial Court, Shariah District
Court, Metropolitan Trial Court, Metropolitan Circuit
Court, Municipal Circuit Trial Court, Shariah District
Court
1.4.7. Courts of law and equity
Court of law decides a case according to what the
promulgated law is while a court of equity
adjudicates a controversy according to the common
precepts of what is right and just without inquiring to
the terms of statutes.
In Philippines, every court is both equity and law.
1.4.8. Principle of judicial hierarchy
The principles provides that a higher court will not
entertain direct resort to it unless the redress cannot
be obtained in the appropriate courts.
 REMEDIAL LAW REVIEWER Chapter I General Principles

1.4.9. Doctrine of non-interference or doctrine

of judicial stability
Courts of equal and coordinate jurisdiction cannot
interfere with each others orders. Thus, the RTC has
no power to nullify or enjoin the enforcement of a Pg.
writ of possession issued by another RTC. 3
 REMEDIAL LAW REVIEWER
II. JURISDICTION
Jurisdiction defined as the power of the court to jurisdiction.
hear and decide cases, and to execute judgment
thereon. It is also the authority to hear and determine
a cause the right to act in particular case. of judgment
Jurisdiction is lodged with the Court not with the
judge.
2.1 OVER THE PARTES
2.1.1. How jurisdiction over the plaintiff is acquired
Jurisdiction over the plaintiff is acquired by his filing
of the complaint or petition and payment of requisite
docket fees. By doing so, he submits himself to the
jurisdiction of the court.
2.1.2. How jurisdiction over the defendant is
acquired
Jurisdiction over the person of the defendant is
obtained either by a valid service of summons upon
him or by his voluntary submission to the courts
authority.
2.2 OVER THE SUBJECT MATTER
2.2 1. Meaning of jurisdiction over the subject
matter
It 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. It is the
power or authority to hear and determine cases to
which the proceeding is question belongs.
Chapter II Jurisdiction
2.2 2. Jurisdiction versus the exercise of jurisdiction
Jurisdiction is the power or authority of the court. The
exercise of this power or authority is the exercise of
Pg.
4
2.2 3. Error of jurisdiction as distinguished from error
Error of Jurisdiction Error of Judgment
One where the act One which the court
complained of was may commit in the
issued by the court exercise of its
without or in excess of jurisdiction, it includes
jurisdiction errors of procedure or
mistakes in the courts
findings.
2.2 4. How jurisdiction is conferred and
determined
Allegations in the complaint determines the
jurisdiction
Determinative of which regular court had jurisdiction
would be the allegations of the complaint.
2.2 5. Doctrine of primary jurisdiction
The principle provides that courts 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 the
sound administrative discretion requiring special
knowledge, experience and services of the
administrative tribunal to determine the technical
and intricate matters of fact.
2.2 6. Doctrine of adherence of jurisdiction
Once the court has acquired jurisdiction, that
jurisdiction continues until the court has done all that
it can do in the exercise of that jurisdiction.
2.2 7. Objections to jurisdiction over the subject
matter
When it appears from the pleadings or evidence on
record that the court has no jurisdiction over the
 REMEDIAL LAW REVIEWER
subject matter, the court shall dismiss the same.
Sec.1, Rule 9.
Jurisdiction over the subject matter may be raised at
any stage of the proceedings, even for the first time
on appeal.
When the court dismisses the complaint for lack of
jurisdiction over the subject matter, it is common
reason that the court cannot remand the case to
another court with the proper jurisdiction. Its only
power is to dismiss and not to make any other order.
2.2 8. Effect of estoppel on objections to
jurisdiction
The active participation of a party in a case is
tantamount to recognition of that courts jurisdiction
and will bar a party from impugning the courts
jurisdiction. The general rule remains that courts lack
of jurisdiction may be raised at any stage of the
proceedings even on appeal.
2.3 OVER THE ISSUES
Jurisdiction over the issues is conferred and
determined by the pleadings of the parties. The
pleadings present the issues to be tried and
determine whether or not the issues are of fact or
law.
Stipulations in pre-trial
The parties may also be determined and conferred by
stipulation of the parties as when in the pre-trial, the
parties enter into stipulations of facts and documents
or enter into agreement simplifying the issues of the
case.
Failure to object to the presentation of evidence
The parties may also be conferred by waiver or failure
to object to the presentation of evidence on a matter
not raised in the pleadings. Here the parties try with
their express or implied consent or issues not raised
Chapter II Jurisdiction
by the pleadings. The issues tried shall be treated in
all respects as if they had been raised in the pleadings.
Pg.
2.4 OVER PROPERTY IN LITIGATION 5
This refers to the jurisdiction over the res.
How the jurisdiction over the res acquired:
1. By placing it in custodial egis. It is the actual
seizure of the thing
2. Through legislative authority conferring
upon it the power to deal with the property
or thing within the courts territorial
jurisdiction.
2.5. JURISDICITON OF COURTS
What are the classifications of jurisdiction?
General
Special or limited
Original
Exclusive
Exclusive original
Appellate
Concurrent
Delegated
Territorial
General Power of the court to adjudicate all
controversies except those expressly withheld from
the plenary powers of the court.
RTC is a court of general jurisdiction. A court of
general jurisdiction is presumed to be acting within its
jurisdiction unless contrary is shown.
Special or limited One which restricts the courts
jurisdiction only to particular cases and subject to
such limitations as may be provided by the governing
law. Example, probate proceedings.
 REMEDIAL LAW REVIEWER
Courts of special jurisdictions:
Sandiganbayan
Court of Tax Appeals
Shariah Courts
RTC
Family Courts
MTC
Scope of limited jurisdiction has only the
jurisdiction expressly delegated and must appear
from the record that its acts are within the
jurisdiction.
Probate court is of limited jurisdiction:
Approval of the agreement entered other than
judicially approved compromise agreement is not
within its jurisdiction.
Original power of the court to take judicial
cognizance of a case instituted for a judicial action for
the first time under the conditions provided by law.
Courts that have original jurisdictions:
SC
CA
SB
RTC
Sharia Courts
MTC
Original jurisdiction of SC-
Sec. 5, Par 1 Article VII:
a) Over actions involving ambassadors, public
ministers and consuls
b) Over petition for certiorari,probhibition,
mandamus, quo warranto, habeas corpus
c) Petition for writ of amparo
d) Petition for habeas data
e) Petition for writ of continuing mandamus,
Sec. 2, Rule 8, Part II Rules of Procedure in
Environmental cases
f) Petition for writ for kalikasan
Chapter II Jurisdiction
Original jurisdiction of Court of Appeals-
a) Petition for certiorari, prohibition,
Pg.
mandamus, quo warranto, habeas corpus,
6
b) Writ of amparo
c) Habeas Data
d) Writ of Continuing Mandamus
e) Writ of Kalikasan
f) Action for annulment of judgment of RTC
g) Petition for freeze order or any monetary
instrument, property, or proceeds, relating
to or involving unlawful activity as defined
under Sec. 3 (j) of RA 9160 as amended by RA
9194.
Original Jurisdiction of RTC, Sec. 21 BP129:
a) Actions involving ambassadors, public
ministers and consuls;
b) Over petition for CPMQH.
c) Petitions for Amparo
d) Petition for Habeas Data
e) Petition for Continuing Mandamus
Original jurisdiction of Shariah Disctrict Courts, Art
413, Par 2 PD 1083:
a) Petition by mustlims for constitution for
family home, change of name, and
commitment of insane person to an asylum
b) All other personal or real actions not
mentioned in par 1d wherin parties are
muslim, except forcible entry and unlawful
detainer which shall be in MTC.
c) All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims for property involve belongs
exclusively to Muslims.
Exclusive The power to adjudicate a case or
proceeding to the exclusion of all other courts at that
stage.
Exclusive and original power of the court to take
judicial cognizance of a case instituted for judicial
action for the first time under the conditions provided
by law, and to the exclusion of all other courts.
 REMEDIAL LAW REVIEWER
Courts that have exclusive and original jurisdictions:
SC
CA
SB
RTC
Sharia Courts
MTC
Exclusive orginal jurisdiction of the Supreme Court-
Over petitions for certiorari, prohibition, and
mandamus against judgment, final order and
resolutions of the following:
a) CA
b) SB
c) CTA
d) COMELEC
e) COA
f) OMB in Criminal Cases ( Salvador vs Mapa )
Exclusive original jurisdiction of CA-
i. Petitions for CPM against:
a) Decision, final orders and resolution of RTC
b) Decisions, final orders and resolution of
NLRC [St. Martin Funeral Homes vs NLRC]
c) Decision, final orders of DOLE in its exercise
of appellate jurisdiction over decision, final
orders of the following offices:
1. POEA Admin in exercise of
adjudicatory function in case of
violation of Labor Code, POEA rules
and regulations.
2. Decision of Secretary of Labor over
decision of its duly authorized
representatives brought on appeal
in case of violation of
apprenticeship agreement which is
already final and executor
3. Decision of NWPC on appeal over
Wage Order by Tripartite Board
4. Decision over direct or indirect
contempt cases decided by NLRC
5. Decision of Secretary of Labor on
appeal in case of denial of union
Chapter II Jurisdiction
registration by Regional Director or
Bureau of Labor Relations
6. Decision of the Bureau of Labor
Relations on appeal over order of
cancellation of union registration.
7. Decision of the Secretary of Labor Pg.
7
on appeal over order of Bureau of
Labor Relations over intra labor
dispute.
ii. Exclusive original jurisdiction over actions of
annulment of final and executor judgment of RTC
which is governed by Rule 47.
Exclsuvie orginal jurisdiction of SB ( civil )
Over civil cases for forfeiture of illegally acquired
wealth under RA 1379.
Note Sec. 15, Article IX of Consti providing
imprescriptivity of unlawfully acquired wealth applies
only in civil actions and not to criminal cases.
Nature of Sandiganbayann is a special court of same
level as CA. Edgar vs Sandiganbayan.
Exclusive Orginal Jurisdiction of RTC-
Sec. 19 of BP129 as amended by RA 7691-
a) Cases wherein the subject is incapable of
precuniary estimation
b) Civil actions which involve title, or
possession of real property or any interest,
where assessed value exceeds 20k MM/ 50 k
OMM, except forcible entry or unlawful
detainer which shall be in MTC.
Note: Metro Manila 17 lGU:
Caloocan, Las Pias, Makati, Malabon,
Mandaluyong, Manila, Marikina,
Muntinlupa, Navotas, Paraaque,
Pasay, Pasig, Patero, sQuezon City, San
Juan, Taguig, Valenzuela
c) In all actions in admiralty and maritime
jurisdiction where claim exceeds
400MM/300 OMM.
 REMEDIAL LAW REVIEWER
d) In all matters of probate, testate or
intestate, where gross value of estate
exceeds 400MM/ 300 OMM.
e) IN all actions involving contract of marriage
and marital relations
f) In all cases not within the exclusive
jurisdiction of any court
g) In all civil actions and special proceedings
falling within EO jurisdiction of Juvenile and
Domestic Relations Court and Court of
Agrarian Relations as now provided by law.
h) In all other cases in which the demand,
exclusive of interest, damages of whatever
kind, atty fees, litigation expenses, costs of
value of property exceeds 400k MM / 300k
OMM.
Other cases falling within EO of RTC from special laws
a) Sec. 5.2 of Securities and Regulations Code
RA 8799-
1. Cases involving devices and
schemes employed by board of
directors, business association, its
officers or partnership, amounting
to fraud of misrepresentation
which is demerital to the interest of
public.
2. Controversies arising out of intra-
corproate or partnership relations,
3. Controversies in the e ections and
appointment of directors, trustees,
officers or managers of such
corporations.
4. Petitions of corporation,
partnership or associations to be
declared in state of suspension of
payments.
b) RTC acting as Special agrarian court that is
petition for determination of just
compensation for that province.
c) Over petition for annulment of judgment
over decision and final orders of MTC
d) Civil cases for infringement of Copyright and
Unfair Competition under IP Code
e) RTC Acting as family court has jurisdiction
over petition for guardianship, custody of
minor, habeas corpus relating to minor
f) Petition for custody of minor, habeas corpus
in relation to the latter
Chapter II Jurisdiction
g) Complaints for annulment of marriage and
declaration of nullity of marriage and those
relating to marital status and property
relation of husband and wife,
h) Petition for support and acknowledgement
i) Summary Judicial Proceedings brought Pg.
under Family Code 8
j) Petition for Constitution of Family Home
k) Petition for declaration of status of children
as abandoned, dependent, or neglected
children
l) Petition for involuntary commitment, or
child caring agency or individual or
commitment of disabled child.
m) Petition for civil forfeiture of monetary
instrument relating to an unlawful activity or
to a money laundering offenses.
Exclusive original jurisdiction of Shariah District
Court
i. All cases involving custody,
guardianship, legitimacy, and filiation
arising under the code
ii. All cases involving disposition and
settlement of estate of deceased
Muslims, probate of a will, issuance of
letters of administration or
appointment of administrator or
executors regardless of nature or
aggregate amount of property
iii. Petitions for declaration of absence and
death and for cancellation or correction
of entries in the Muslim Registries
iv. All actions from customary contract in
which parties are Muslims, if they have
not specified the law which shall govern
their relations.
v. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus,
and auxiliary writs and processes in aid
of its appellate jurisdiction
Exclusive original jurisdiction of MTC-
i. Just reversed the jurisdiction of RTC as
regards to amounts.
ii. Cases under Rules on Summary
Proceedings-
 REMEDIAL LAW REVIEWER
a) Forcible entry and unlawful
detainer
b) All other cases, except probate,
where the claim does not exceed
100k OMM / 200 k MM.
iii. Cases under Small Claims-
Payment of money where the value of the
claim does not exceed 100k exclusive of cost
and interst.
Purpose of small claims: No lawyers, formal
pleadings, strict legal rules of evidence. It is
designed to function quickly and informally.
Exclusive Original Jurisdiction of Shariah Circuit
Courts-
i. All civil actions and proceeding between parties
who are Muslims or have been married in
accordance with Article 13 involving disputes
relating to:
a) Marriage
b) Divorce recognized under the Code
c) Betrothal or breach of contract to
marriage
d) Customary dower
e) Disposition or distribution of property
upon divorce
f) Maintenance and support and
cosolatary gifts
g) Restitution of marital gifts
ii. All cases involving disputes relative to
communal properties
Special Jurisdiction -
The following courts have special jurisdiction:
Regitonal Trial Court
MTC
Chapter II Jurisdiction
Special jurisdiction of RTC, Sec. 23 BP 129
The Supreme Court may designate certain branches
of Regional Trial Courts to handle exclusively the
following special cases:
Pg.
9
a. Criminal cases
b. Juvenile and domestic relations cases
c. Agrarian Cases
d. Urban land reform cases which do not fall
under the jurisdiction of quasi-judicial
bodies and agencies
e. Such other special cases as the SC may
determine in the interest of speedy and
efficient administration of justice.
Special Jurisdiction of MTC, Sec. 35 BP 129
a. Petition for habeas corpus and;
b. Application for bail in criminal cases in the
province or city where the absent regional
trial judge sits.
Apellate power and authority conferred upon a
superior court to rehear and determine causes which
have been tried in lower courts, the cognizance which
a superior court takes a case to removed to it, by
appeal or writ of error from the decision of a lower
court, or the review by superior court of final
judgment or order of some lower courts.
The following have appellate jurisdiction:
SC
CA
SB
CTA
RTC
SDC
Apellate jurisdiction of the Supreme court [Sec. 5, Par
2, Article VIII)-
i. Review,revise,reverse,modify, or affirm on
appeal or certiorari judgment, as the Rules of
Court may provide, final judgment and orders of
lower courts in:
 REMEDIAL LAW REVIEWER Chapter II Jurisdiction

1. All cases in which the constitutionality
or validity of any treaty, international or
executive agreement, law, PD,
proclaimation, order, instruction,
ordinance, or regulation is in question
2. All cases involving the legality of nay tax,
impost, assessment, or toll or any pently
imposed in relation thereto
3. All cases in which the jurisdiction of any
lower court is in issue
4. All criminal cases in which the penalty
imposed is reclusion perpetua or higher
5. All cases in which only an error or
question of law is involved
ii. Cases which shall be decided by the Supreme
Court en banc, Article VIII 4(2), Consti-
A question of law exists when there is doubt or
controversy as to what law is applicable on certain set
of facts. Questions of fact exist when the doubt or
controversy arises as to truth or falsity of the alleged
facts.
Pg.
10
Appellate Jurisdiction of Court of Appeals- Sec. 9, BP
129
i. Over judgments, resolutions, orders or award
of the following courts or tribunal:
a) RTC in exercise of its original
jurisdiction, Rule 41.
b) RTC in exercise of its appellate
jurisdiction Rule 42.
c) Quasi-judicial bodies in exercise of
quasi-judicial functions under Rule 43.

a. All cases involving the constitutionality

of a treaty, international agreement or What are these quasi-judicial bodies?
law and,
b. All other cases which under the Rules of
1. Civil Service Commission
Court are required to be heard en banc,
2. Security and exchange commission
including those involving the
3. Office of the President
constitutionality, application, or
4. Land Registration Authority
operation of PD, proclamation, orders,
5. Social Security Commission
instruction, ordinances, and other
6. Civil Aeronautics Board
regulations.
7. Bureau of Patents and Trademarks and
Technology Transfer
8. National Electrification Administrations
Supreme Court may review decisions of the 9. Energy Regulatory Board
lower courts by way of petition for review on 10. National Telecommunication Commission
certiorari under Rule 45. 11. Department of Agrarian Reform
12. Government Service Insurance System
iii. Cases falling under the appellate jurisdiction 13. Employees Compensation Commission
of the Supreme Court- over judgments, infal 14. Agricultural Inventions Board
orders, and resolutions of the following courts: 15. Insurance Commission
16. Philippine Atomic Energy Comission
a. CA under R45. 17. Board of Investments
b. SD 18. Construction Industry Arbitration
c. CTA en banc Commission
d. RTC r45 19. Voluntary Arbitration
e. CA, SB, RTC in petition for writ of 20. Decision of OMB in administrative cases,
Amparo OMB vs Liggayu
f. CA, SB, RTC in petition for habeas data

Note as a rule, only pure questions of law may be a

ground for r45.
 REMEDIAL LAW REVIEWER
What are the powers of the Court of Appeals in the
exercise of exclusive and appellate jurisdiction?
Sec. 9(3) par. 2, BP 129
a. Try cases and conduct hearings
b. Receive Evidences
c. Perform any and all acts necessary to resolve
factual issues raised in cases falling within its
original and appellate jurisdiction, including
power to conduct new trial and further
proceedings.
Note Rules in the conduct of hearings before the CA
must be continuous and must be completed within
three months, unless extended by the CJ.
Appellate jurisdiction of Sandiganbayan-
Shall exercise exclusive appellate jurisdiction over
final judgment, resolutions, or orders of RTC whether
in exercise of their own original jurisdiction or their
appellate jurisdiction. Filomena Villanueva vs People,
2011
2.6. BARANGAY CONCILLATION
Purposes:
1. Reduce the number of court litigations
2. Prevent deterioration of the quality of
justice, brought about by the indiscriminate
filing of cases in court
General rule:
No complaint, petition, action or proceeding involving
any matter within the authority of the lupon shall be
filed or instituted directly in court or any other
government office for adjudication, unless there has
been a confrontation between the parties before the
lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary
as attested to by the lupon chairman or pangkat
chairman or unless the settlement has been
repudiated by the parties thereto.
Chapter II Jurisdiction
Exceptions:
1. Where one party is the government or any
subdivision or instrumentality thereof;
Pg.
2. Where one party is a public officer or employee,
11
and the dispute relates to the performance of his
official functions;
3. Offenses punishable by imprisonment exceeding 1
year or a fine exceeding P5000
4. Offenses where there is no private offended party
5. Where the dispute involves real properties located
in different cities or municipalities, unless the parties
thereto agree to submit their differences to amicable
settlement by an appropriate lupon
6. Disputes involving parties who actually reside in
barangays of different cities of municipalities, except
when such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon.
When they can go directly to court
1. Where the accused is under detention
2. Where the accused has otherwise been deprived of
personal liberty calling for habeas corpus proceedings
3. Where actions are coupled with provisional
remedies
4. Where the action may otherwise be barred by the
statute of limitations
2.7 TOTALITY RULE
Where there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint, the amount of the demand shall
be the totality of the claims in all the claims of action,
irrespective of whether the causes of action arose out
of the same or different transactions.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Special civil
actions are
III. CIVIL PROCEDURE governed by
the Rules 62-71
suppletory are
3.1. ACTIONS Pg.
the rules on
ordinary civil 12
3.1.1. Meaning of ordinary civil actions
actions.
A civil action is one by which a party sues another for
3.1.4. Civil actions versus special proceedings
the enforcement or protection of a right, or the
prevention or redress of a wrong,
A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.
3.1.2. Meaning of special civil actions
Civil actions are based from cause of action while in
Governed by the rules for ordinary civil actions,
special proceedings, it is not based on a cause of
subject to the specific rules prescribed for a special
action except in habeas corpus. Unlike civil actions,
civil action.
special proceedings are initiated through a petition
and may involve only one party
3.1.3. Meaning of criminal actions

A criminal action is one by which the State prosecutes

3.1.5. Personal actions and real actions
a person for an act or omission punishable by law.
Personal action - A personal action is one that is
founded on privity of contract.
Civil Action Criminal Special
Action Proceeding Real actions - Actions affecting title to or possession
of real property, or interest therein
One by which a Is one by Special
3.1.6. Local and transitory actions
party sues which the proceeding is
another for state a remedy by
Local action the venue depends on the location of
enforcement or prosecutes a which a party
protection of a person for an seeks to property.
right, or act or establish a
prevention of a omission status, a right, Transitory action the venue depends on the
wrong. punishable by or particular residence of the parties.
law. fact.
A civil action 3.1.7. Actions in rem, in personam and quasi in
may either Criminal It is governed rem
ordinary or proceedings by Rules 72-
special. Both are governed 109 of Rules Actions in rem action bought against the thing itself
are governed by 110-127 of of court, and and with a purpose of binding the whole world.
by the rules for Revised Rules rules on
ordinary civil on Criminal ordinary civil Actions in personam action directed against
actions, subject Procedure. actions only particular persons and the judgment of which is
to the specific applies in binding only upon the parties impleaded and their
rules suppletory successors in interest
prescribed for character.
special civil Action quasi-in-rem one bought against particular
action. persons but intended to bind the persons who might
have interest in the subject matter.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.1.8. Independent Civil Actions

Determined by Determined by
In the cases provided for in Articles 32, 33, 34 and the the allegations
2176 of the Civil Code, the independent civil action substantive in the
may be brought by the offended party. It shall law pleadings
Pg.
proceed independently of the criminal action and
13
shall require only a preponderance of evidence. Can be taken Not subject to
away by statute of
In no case, however, may the offended party recover statutes of limitations
damages twice for the same act or omission charged limitations like
in the criminal action. prescriptions

Requisites for right of action:

3.2. CAUSE OF ACTION 1. A cause of action

2. Compliance with all conditions precedent
3.2.1. Meaning of cause of action 3. Actions must be instituted by a proper party

Cause of action is the act or omission by which a party 3.2.3. Failure to state a cause of action
violates a right of another.
Failure to state a cause of action is one of the grounds
Elements: for dismissal of the complaint.

1. A right in favor of the plaintiff by whatever

means and under whatever law it arises or is
created;
2. An obligation on the part of the named Failure to State Cause Lack of Cause of Action
defendant to respect or not to violate such of Action
right; and
3. Act or omission on the part of such
1. The remedy is 1. The remedy is
defendant in violation of the right of the
motion to dismiss Demurrer to
plaintiff or constituting a breach of the
under Rule 16. Evidence.
obligation of the defendant to the plaintiff
2. Made before filing 2. Made after the
for which the latter may maintain an action
responsive prosecution rests
for recovery of damages or other
pleading its case
appropriate relief.
3. Nature of dismissal 3. The dismissal is
is without with prejudice.
3.2.2. Right of action versus cause of action
prejudice, remedy Remedy of the
of the plaintiff is to plaintiff is to file an
Right of action Cause of Action file an amended Apeal of dismissal.
Action pleading 4. If DTE is denied, the
4. If MTD is denied, remedy is to
file an answer. present evidence
The remedial Act or A suit to
right of the omission by enforce ones
3.2.4. Test of the sufficiency of a cause of action
plaintiff to which a party right or to
institute an violates the prevent or
The test is whether or not admitting the facts alleged,
action right of redress a
the court could render a valid verdict in accordance
another wrong
with the prayer of the complaint.
 REMEDIAL LAW REVIEWER
What is to be considered by the court are the material
allegations in the complaint. The court shall not take
cognizance of the external facts.
3.2.5. Splitting a single cause of action and its effects
A party may not institute more than one suit for a
single cause of action. Sec.3, Rule 2.
Effect of splitting single cause of action
If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for
the dismissal of the others. Sec. 4, Rule 2.
The ground of dismissal may be based on res judicata
or litis pendentia.
3.2.6. Joinder and mis-joinder of causes of action
A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may
have against an opposing party.
Requisites:
a. The party joining the causes of action shall
comply with the rules on joinder of parties;
b. The joinder shall not include special civil
actions or actions governed by special rules;
c. Where the causes of action are between the
same parties but pertain to different venues
or jurisdictions, the joinder may be allowed
in the Regional Trial Court provided one of
the causes of action falls within the
jurisdiction of said court and the venue lies
therein; and
d. Where the claims in all the causes action are
principally for recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction.
Non-joinder of causes of action has no legal
consequence. The plaintiff has the discretion whether
to assert all of his cause of action in one pleading.
Chapter III Civil Procedure
Misjoinder of cause of action
Misjoinder of causes of action is not a ground for
dismissal of an action.
Pg.
Remedy in case of misjoinder of cause of action
14
A misjoined cause of action may, on motion of a party
or on the initiative of the court, be severed and
proceeded with separately.
3.3. PARTIES TO CIVIL ACTION
3.3.1. Real parties-in-interest; indispensable
parties; representatives as parties; necessary
parties; indigent parties; alternative
defendants
Who may be parties
Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. Sec.
1, Rule 3.
Entities authorize by law to be a patties include:
1. Estate of a deceased person
2. Political party duly incorporated
3. Registered labor union
4. Partnerships
5. Dissolved corporations concerning suits filed
for or against it within 3 years from
dissolution in connection with winding up of
its affairs
Plaintiff - may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third
(fourth, etc.) party plaintiff.
Defendant - may refer to the original defending party,
the defendant in a counter-claim, the cross-
defendant, or the third (fourth, etc.) party
defendant.
Real parties in interest - A real party in interest is the
party who stands to be benefited or injured by the
 REMEDIAL LAW REVIEWER
judgment in the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Sec. 2, Rule 3.
Rule in representatives are parties
General rule: Where the action is allowed to be
prosecuted and defended by a representative or
someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case
and shall be deemed to be the real property in
interest. Sec. 3, Rule 3.
A representative may be a trustee of an expert trust,
a guardian, an executor or administrator, or a party
authorized by law or these Rules. Sec 3, Rule 3.
Where the name of the principal need not to be
disclosed
An agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the principal.
REMEDY:
If the complaint was prosecuted not in the name of
real party in interest, the same can be dismissed for
failure to state cause of action.
Indispensable parties - Parties in interest without
whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants. Sec.
7, Rule 3.
The presence of indispensable parties is a condition
for the exercise of juridical power and when an
indispensable party is not before the court, the action
should be dismissed.
Although as a general rule, the joinder of parties is
permissive, it is compulsory with respect to
indispensable parties.
Necessary parties A necessary party is one who is
not indispensable but who ought to be joined as a
party if complete relief is to be accorded as to those
Chapter III Civil Procedure
already parties, or for a complete determination or
settlement of the claim subject of the action. Sec. 8,
Rule 3.
Alternative defendants - Where the plaintiff is
Pg.
uncertain against who of several persons he is
15
entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to
relief against one may be inconsistent with a right of
relief against the other. Sec. 13, Rule 3.
Unknown identity or name of defendant. -
Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner heir
devisee, or by such other designation as the case may
require, when his identity or true name is discovered,
the pleading must be amended accordingly. Sec. 14,
Rule 3.
Indigent parties - satisfied that the party is one who
has no money or property sufficient and available for
food, shelter and basic necessities for himself and his
family. Sec. 21, Rule 3.
Rule in indigent parties Sec. Rule 3.
A party may be authorized to litigate his action, claim
or defense as an indigent if the court, upon an ex
parte application and hearing.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may
order to be furnished him. The amount of the docket
and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless
the court otherwise provides.
Any adverse party may contest the grant of such
authority at any time before judgment is rendered by
the trial court. If the court should determine after
hearing that the party declared as an indigent is in
fact a person with sufficient income or property, the
proper docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment is not
made within the time fixed by the court, execution
shall issue or the payment thereof, without prejudice
to such other sanctions as the court may impose
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.3.2. Compulsory and permissive joinder Neither misjoinder nor non-joinder of parties is
of parties ground for dismissal of an action.

Rule on compulsory joinder of parties
Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants.
Rule on permissive joinder of parties
Parties may be dropped or added by order of the
court on motion of any party or on its own initiative
Pg.
at any stage the action and on such terms as are just.
16
NOTE: If the plaintiff fails to comply with the orders
of the court for joinder of party, the same may be
dismissed under Rule 17.

All persons in whom or against whom any right to Any claim against a misjoined party may be severed
relief in respect to or arising out of the same and proceeded with separately Sec. 11, Rule 3.
transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may, Unwilling co-plaintiff
except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint, If the consent of any party who should be joined as
where any question of law or fact common to all such plaintiff can not be obtained, he may be made a
plaintiffs or to all such defendants may arise in the defendant and the reason therefor shall be stated in
action; but the court may make such orders as may be the complaint. Sec. 10, Rule 3.
just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with 3.3.4. Class suit
any proceedings in which he may have no interest.
Sec. 6, Rule 3. Class suit - When the subject matter of the
controversy is one of common or general interest to
3.3.3. Non-joinder of necessary parties to be many persons so numerous that it is impracticable to
pleaded ;Misjoinder and non-joinder of parties join all as parties, a number of them which the court
finds to be sufficiently numerous and representative
Non-joinder of necessary parties to be pleaded as to fully protect the interests of all concerned may
sue or defend for the benefit of all. Sec. 12, Rule 3.
Whenever in any pleading in which a claim is asserted
a necessary party is not joined, the pleader shall set Requisites or class suit:
forth his name, if known, and shall state why he is
omitted. Should the court find the reason for the 1. the subject matter of controversy is one of
omission unmeritorious, it may order the inclusion of common or general interest to many
the omitted necessary party if jurisdiction over his persons;
person may be obtained. 2. the parties affected are so numerous that it
is impracticable to bring them all to court;
The failure to comply with the order for his inclusion, and
3. the parties bringing the class suit are
without justifiable cause, shall be deemed a waiver of
sufficiently numerous or representative of
the claim against such party.
the class and can fully protect the interests
of all concerned.
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 Class suit Citizen Suit Derivative Taxpayers
prejudice to the rights of such necessary party. Sec. 9, Suit suit
Rule 3.
When the Suit filed Suit filed A suit
Misjoinder and non-joinder of parties subject by the by brought by
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

matter of the citizen of stockholde a taxpayer Whenever a party to a pending action dies, and the
controversy the r or for illegal claim is not thereby extinguished
is one of Philippines member expenditur
common or for their may bring e of It shall be the duty of his counsel to inform the court
general generation an action taxpayers within thirty (30) days after such death of the fact Pg.
interest to as well as in the money. thereof, and to give the name and address of his legal 17
many generation name of a representative or representatives. Failure of counsel
persons so s yet corporatio to comply with his duty shall be a ground for
numerous unborn n or disciplinary action.
that it is associatio
impracticable n for The heirs may be substituted
to join all as inaction of
parties, a the The heirs of the deceased may be allowed to be
number of officers of substituted for the deceased, without requiring the
them which such appointment of an executor or administrator and the
the court corporatio court may appoint a guardian ad litem for the minor
finds to be n or heirs.
sufficiently associatio
numerous n. The court shall forthwith order said legal
and representative or representatives to appear and be
representativ substituted within a period of thirty (30) days from
e as to fully notice.
protect the
interests of If no legal representative, remedy of the opposing
all concerned
party
may sue or
defend for If no legal representative is named by the counsel for
the benefit of the deceased party, or if the one so named shall fail
all. to appear within the specified period, the court may
order the opposing party, within a specified time to
Any party in interest have the right to intervene in procure the appointment of an executor or
class suit administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of
Any party in interest shall have the right to intervene
the deceased. The court charges in procuring such
to protect his individual interest. Sec. 12, Rule 2.
appointment, if defrayed by the opposing party, may
be recovered as costs.
3.3.5. Suits against entities without juridical
personality Remedy if a party becomes incompetent or
incapacitated
When two or more persons not organized as an entity
with juridical personality enter into a transaction, Upon motion with notice, the court may allow the
they may be sued under the name by which they are action to be continued by or against the incompetent
generally or commonly known. or incapacitated person assisted by his legal guardian
or guardian ad litem.
In the answer of such defendant, the name and
addresses of the persons composing said entity must Transfer of interest
all be revealed. Sec. 15, Rule 3.
In case of any transfer of interest, the action may be
3.3.6. Effect of death of party-litigant continued by or against the original party, unless the
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

court upon motion directs the person to whom the defendant/responde the court and
interest is transferred to be substituted in the action nt subject matter
or joined with the original party. Sec. 19, Rule 3. 4. May be stipulated by 4. Cannot be fixed
the agreement of the by the parties
Action and contractual money claims parties on exclusivity because it is Pg.
of venue conferred by law 18
When the action is for recovery of money arising from 5. Not a ground for 5. Ground for motu
contract, express or implied, and the defendant dies motu propio propio dismissal
before entry of final judgment in the court in which dismissal, except in
the action was pending at the time of such death, it summary procedure
shall not be dismissed but shall instead be allowed to and small claims.
continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a 3.4.2. Venue of real actions
deceased person. Sec. 20, Rule 3.
Actions affecting title to or possession of real
When notice to Solicitor General is necessary property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction
In any action involving the validity of any treaty, law, over the area wherein the real property involved, or
ordinance, executive order, presidential decree, rules a portion thereof, is situated.
or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be
Forcible entry and detainer actions shall be
heard in person or a representative duly designated
commenced and tried in the municipal trial court of
by him. Sec. 22, Rule 3. the municipality or city wherein the real property
involved, or a portion thereof, is situated. Sec. 1, Rule
4.
3.4. VENUE 3.4.3. Venue of personal actions
Venue the geographical area where the case should
All other actions may be commenced and tried:
be filed and tried.
1. where the plaintiff or any of the principal
3.4.1. Venue versus jurisdiction
plaintiffs resides, or
2. where the defendant or any of the principal
Venue Jurisdiction defendants resides, or in the case of a non-
resident defendant where he may be found,
at the election of the plaintiff. Sec. 2, Rule 4.
1. The geographical 1. Authority of the
place where the case courts to hear 3.4.4. Venue of actions against non-residents
should be filed and and determine
tried. cases and If any of the defendants does not reside and is not
2. Matter of procedural implement its found in the Philippines, and the action affects the
law decision personal status of the plaintiff, or any property of said
3. Establishes 2. Matter of defendant located in the Philippines, the action may
relationship between substantive law be commenced and tried:
plaintiff/petitioner 3. Establishes
and relation between 1. In the court of the place where the plaintiff
resides, or
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

2. In the court of the place here the property or Initiatory pleading a pleading that initiates an
any portion thereof is situated or found. Sec. action.
3, Rule 4.
Responsive pleading a pleading that responds to the
What kinds of action this applies: pleading of adverse party.
Pg.
19
1. Action affects the personal status of the 3.5.1. Kinds of pleadings
plaintiff
2. Any property of said defendant located in a) Complaint - The complaint is the pleading alleging
the Philippines the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be
3.4.5. When the rules on venue do not apply stated in the complaint.

1. In those cases where a specific rule or law
provides otherwise; or
2. Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof. Sec. 4, Rule 4.
3.4.6. Effects of stipulations on venue
b) Answer - An answer is a pleading in which a
defending party sets forth his defenses.
i. Negative defenses - is the specific denial of
the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action.

If the stipulation is restrictive, the suit may be filed
only in the place agreed upon by the parties. It must
be reiterated and made clear that under Rule 4, the
general rules on venue of actions shall not apply
where the parties, before the filing of the action, have
validly agreed in writing on an exclusive venue.
ii. Negative pregnant - It is a form of
negative expression which carries with it an
affirmation or at least an implication of some
kind favorable to the adverse party. It is a
denial pregnant with an admission of the
substantial facts alleged in the pleading.

iii. Affirmative defenses - is an allegation of

3.5. PLEADINGS
Pleadings - are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment
a new matter which, while hypothetically
admitting the material allegations in the
pleading of the claimant, would nevertheless
prevent or bar recovery by him.
It includes:

Note A motion is not a pleading because it is an

a. fraud,
application for relief other than by a pleading. b. statute of limitations,
c. release,
Pleadings allowed under the rules
d. payment,
e. illegality,
The claims of a party are asserted in a complaint,
f. statute of frauds,
counterclaim, cross-claim, third (fourth, etc.)-party
g. estoppel,
complaint, or complaint-in-intervention.
h. former recovery,
The defenses of a party are alleged in the answer to i. discharge in bankruptcy,
j. and any other matter by way of
the pleading asserting a claim against him.
confession and avoidance.
An answer may be responded to by a reply
 REMEDIAL LAW REVIEWER
c) Counterclaims - A counterclaim is any claim which
a defending party may have against an opposing
party.
i. Compulsory counterclaim - is one which,
being cognizable by the regular courts of
justice, arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing party's claim
and does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction..
Such a counterclaim must be within the
jurisdiction of the court both as to the
amount and the nature thereof, except that
in an original action before the Regional Trial
Court, the counter-claim may be considered
compulsory regardless of the amount.
ii. Permissive counterclaim - is one which,
being cognizable by the regular courts of
justice, does not arises out of or is connected
with the transaction or occurrence
constituting the subject matter of the
opposing party's claim and does not require
for its adjudication the presence of third
parties of whom the court cannot acquire
jurisdiction.
iii. Effect on the counterclaim when the
complaint is dismissed - If a counterclaim
has already been pleaded by the defendant
prior to the service upon him of the
plaintiffs motion to dismiss, and the court
grants the said motion to dismiss, the
dismissal shall be limited to the complaint.
Sec. 2, Rule 17
Rule in bring in new parties
When the presence of parties other than those to the
original action is required for the granting of
complete relief in the determination of a
counterclaim or cross-claim, the court shall order
them to be brought in as defendants, if jurisdiction
over them can be obtained. Sec. 12, Rule 6
Chapter III Civil Procedure
d) Cross-claims - is any claim by one party against a
co-party arising out of the transaction or occurrence
that is the subject matter either of the original action
or of a counterclaim therein. Such cross-claim may
include a claim that the party against whom it is
Pg.
asserted is or may be liable to the cross-claimant for 20
all or part of a claim asserted in the action against the
cross-claimant.
e) Third (fourth, etc.) party complaints - A third
(fourth, etc.) party complaint is a claim that a
defending party may, with leave of court, file against
a person not a party to the action, called the third
(fourth, etc.) party defendant for contribution,
indemnity, subrogation or any other relief, in respect
of his opponent's claim
Answer to third (fourth, etc.)party complaint.
party defendant may allege in his answer his
defenses, counterclaims or cross-claims, including
such defenses that the third (fourth, etc.) party
plaintiff may have against the original plaintiff's claim.
In proper cases, he may also assert a counterclaim
against the original plaintiff in respect of the latter's
claim against the third-party plaintiff.
f) Complaint-in-intervention a complaint filed, with
leave of court, by a person who has a legal
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is
so situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court or of an officer thereof may, with
leave of court. Sec. 1, Rule 19.
g) Reply A reply is a pleading, the office or function
of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense
in the answer and thereby join or make issue as to
such new matters. If a party does not file such reply,
all the new matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall
be set forth in an amended or supplemental
complaint. Sec. 10, Rule 6.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Reply is a responsive pleading. affidavits, or any 4. Petition for relief

other paper; from judgment;
3.5.2. Pleadings allowed in small claim cases and 6. Memoranda; 5. Motion for
cases covered by the Rules on Summary Procedure 7. Petition for extension of time
certiorari, to file pleadings, Pg.
mandamus, or affidavits or any 21
Pleadings allowed
prohibition against other paper;
any interlocutory 6. Memoranda;
Small Claims Summary Procedure order issued by the 7. Petition for
court; certiorari,
8. Motion to declare mandamus, or
the defendant in prohibition against
Verified Statement of Complaint
default; any interlocutory
Claims, (Form 1-SCC)
Compulsory counter- 9. Dilatory motions order issued by the
Permissive counter- claim pleaded in the for postponement; court;
claim as long as within answer 10. Reply; 8. Motion to declare
the scope of small 11. Third-party the defendant in
claims Cross-claim pleaded in complaints; and default;
the answer 12. Interventions. 9. Dilatory motions
Response with or for postponement;
without compulsory Answers thereto 10. Reply;
counter-claim 11. Third party
complaints;
12. Interventions.

Note pleadings under Summary Procedure shall be

Prohibited pleadings and motions verified.

3.5.3. Parts of a pleading

Small Claims Summary Procedure
a) Caption
1. Motion to dismiss 1. Motion to dismiss
the complaint the complaint or to The caption sets forth the name of the court, the title
except on the quash the of the action, and the docket number if assigned.
ground of lack of complaint or
jurisdiction; information except The title of the action indicates the names of the
2. Motion for a bill of on the ground of parties. They shall all be named in the original
particulars; lack of jurisdiction complaint or petition; but in subsequent pleadings, it
3. Motion for new over the subject shall be sufficient if the name of the first party on
trial, or for matter, or failure each side be stated with an appropriate indication
reconsideration of to comply with the when there are other parties.
a judgment, or for preceding section;
reopening of trial; 2. Motion for a bill of b) Signature and address
4. Petition for relief particulars;
from judgment; 3. Motion for new Every pleading must be signed by the party or counsel
5. Motion for trial, or for representing him, stating in either case his address
extension of time reconsideration of which should not be a post office box.
to file pleadings, a judgment, or for
opening of trial;
 REMEDIAL LAW REVIEWER
c) Verification and certification against forum
shopping
Rule on verification
Except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or
accompanied by affidavit
All initiatory pleadings shall be verified.
As a rule, responsive pleadings need not to be
verified. Exceptions:
1. Answer to allegations of usury in a complaint
2. Answer based on actionable document
3. Answer to written interrogatories
4. Answer to interrogatories to parties
5. Answer to written request for admission
6. Answer in Summary Proceedings
7. Response in Small claims
How verification is made.
A pleading is verified by an affidavit that the affiant
has read the pleading and that the allegations therein
are true and correct of his knowledge and belief.
A pleading required to be verified which contains a
verification based on "information and belief", or
upon "knowledge, information and belief", or lacks a
proper verification, shall be treated as an unsigned
pleading.
A verification may be signed by the counsel or
plaintiff.
Certification against Forum Shopping
The plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading asserting
a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced
any action or filed any claim involving the
same issues in any court, tribunal or quasi-
judicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein;
Chapter III Civil Procedure
(b) if there is such other pending action or
claim, a complete statement of the present
status thereof; and
(c) if he should thereafter learn that the
Pg.
same or similar action or claim has been filed
22
or is pending, he shall report that fact within
five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading
has been filed.
All initiatory pleadings need to have certification
against forum shopping.
As a rule, responsive pleadings need not to have
certification against forum shopping
Except:
1. Answer with Permissive Counterclaim
2. Answer with Permissive Counter
Counterclaim
3. Answer with Cross-claim
Non-compliance with certification of Non-Forum
Shopping
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after
hearing.
The submission of a false certification or non-
compliance with any of the undertakings therein shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions.
Willful non-compliance
If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall
be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for
administrative sanctions
NOTE: Only the plaintiff can sign the certification
against forum shopping. The counsel cannot sign it.
 REMEDIAL LAW REVIEWER
Exception: If the plaintiff is a corporation and the
counsel is duly authorized.
i. Requirements of a corporation executing
the verification/certification of non-forum
shopping
It may be executed by properly authorized
persons.
This person may be the lawyer of a
corporation. As long as he is duly authorized
by the corporation and has personal
knowledge of the facts required to be
disclosed in the certification against forum
shopping, the certification may be signed by
the authorized lawyer. National Steel Corp.
vs. CA, 388 SCRA 85
d) Effect of the signature of counsel in a pleading
Effect of signature of the counsel
The signature of counsel constitutes a certificate by
him that he has read the pleading; that to the best of
his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for
delay.
Effect of unsigned pleading
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended
for delay.
Deliberate filing of unisigned pleading
Counsel who deliberately files an unsigned pleading,
or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails
promptly report to the court a change of his address,
shall be subject to appropriate disciplinary action
Chapter III Civil Procedure
3.5.4. Allegations in a pleading
In general
Every pleading shall contain in a methodical and
Pg.
logical form, a plain, concise and direct statement of
23
the ultimate facts on which the party pleading relies
for his claim or defense, as the case may be, omitting
the statement of mere evidentiary facts. Sec. 1, Rule
8.
a) Manner of making allegations
i. Condition precedent - In any pleading a
general averment of the performance or
occurrence of all conditions precedent shall
be sufficient.
ii. Fraud, mistake, malice, intent,
knowledge and other condition of the mind,
judgments, official documents or acts - In all
averments of fraud or mistake the
circumstances constituting fraud or mistake
must be stated with particularity. Malice,
intent, knowledge, or other condition of the
mind of a person may be averred generally
b) Pleading an actionable document
Actionable document a document from which the
action or defense arises.
Whenever an action or defense is based upon a
written instrument or document,
1. The substance of such instrument or
document shall be set forth in the pleading
2. The original or a copy thereof shall be
attached to the pleading as an exhibit, which
shall be deemed to be a part of the pleading,
or said copy may with like effect be set forth
in the pleading.
How to contest such documents
1. The adverse party, under oath specifically
denies them, and
2. Sets forth what he claims to be the facts,
 REMEDIAL LAW REVIEWER
Effect if failed to contest under oath
The genuineness and due execution of the instrument
shall be deemed admitted
Exception to the rule on under oath denial
But the requirement of an oath does not apply when
the adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.
c) Specific denials
Absolute denial - A defendant must specify each
material allegation of fact the truth of which he does
not admit and, whenever practicable, shall set forth
the substance of the matters upon which he relies to
support his denial.
Partial denial - Where a defendant desires to deny
only a part of an averment, he shall specify so much
of it as is true and material and shall deny only the
remainder.
Denial by disavowal of knowledge- Where a
defendant is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made to the complaint, he shall so state,
and this shall have the effect of a denial
Effect of failure to make specific denials
Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied.
ii. When a specific denial requires an oath
1. Allegations of usury in a complaint to
recover usurious interest are deemed
admitted if not denied under oath.
2. When the action or defense is founded on
actionable documents
Striking out of pleading or matter contained therein.
Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by
these Rules, upon motion made by a party within
Chapter III Civil Procedure
twenty (20) days after the service of the pleading
upon him, or upon the court's own initiative at any
time, the court may order any pleading to be stricken
out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
Pg.
therefrom. Sec. 12, Rule 8 24
3.5.5. Effect of failure to plead
a) Failure to plead defenses and objections
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived.
This is also called omnibus motion rule.
Exceptions:
1. When it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter,
2. That there is another action pending
between the same parties for the same
cause
3. That the action is barred by a prior judgment
or by statute of limitations, the court shall
dismiss the claim.
b) Failure to plead a compulsory counterclaim and
cross-claim
A compulsory counterclaim, or a cross-claim, not set
up shall be barred
3.5.6. Default
a) When a declaration of default is proper
Requisites:
1. If the defending party fails to answer within
the time allowed therefor,
2. Upon motion of the claiming party with
notice to the defending party,
3. Proof of such failure,
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

answers thus filed and render judgment upon the

Order of default Judgment by default evidence presented.

e) Extent of relief
Order issued by the A judgment rendered
Pg.
court on plaintiffs by the court based on A judgment rendered against a party in default shall
25
motion and at the start the presentation of not exceed the amount or be different in kind from
of the proceedings, for the plaintiffs that prayed for nor award unliquidated damages.
failure of the defendant evidence ex parte
to file his responsive after the defendant f) Actions where default is not allowed
pleading has been declared in
default, and the 1. Action for annulment of marriage
award shall not 2. Declaration for nullity of marriage
exceed the amount or 3. Action for legal separation
be different from the
kind of prayer that Course of action of the court in case of default in
the plaintiff these cases.
complained as the
facts and evidence so If the defending party in an action for annulment or
warrants. declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the
b) Effect of an order of default prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
A party in default shall be entitled to notice of collusion, to intervene for the State in order to see to
subsequent proceedings but not to take part in the it that the evidence submitted is not fabricated.
trial
Remedies:
c) Relief from an order of default
After notice of order of default but before judgment:
A party declared in default may at any time after
notice thereof and before judgment file: a. Motion to lift order of default based on
FAME and that he has meritorious defense
1. A motion under oath to set aside the order i. Granted file an answer
of default ii. Denied MR, then Rule 65.
2. Upon proper showing that his failure to
answer was due to fraud, accident, mistake After judgment but before it become final and
or excusable negligence executory
3. That he has a meritorious defense.
Motion for new trial
In such case, the order of default may be set aside on
such terms and conditions as the judge may impose After judgment and already becomes final and
in the interest of justice. executory

d) Effect of a partial default 1. Petition for relief of judgment

2. Action for nullity of judgment
When a pleading asserting a claim states a common 3. Petition for certiorari under Rule 65
cause of action against several defending parties,
some of whom answer and the others fail to do so,
the court shall try the case against all upon the
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.5.7. Filing and service of plea dings office which will

forward the same by
a) Payment of docket fees registered ail

It is not simply the filing of the complaint or Service made by Within time specified in
Pg.
appropriate initiatory pleading but the payment of publication the order granting the 26
the prescribed docket fee that vests a trial court with leave to serve summons
jurisdiction over the subject matter or nature of the by publication which
action. shall not be less than 60
days after service
Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured by Defendant is non- 60 days from the the
amendment. resident on whom service
extrajudicial service is
The Rules now require that appellate docket and made
other lawful fees must be paid within the same period
for taking an appeal. Answer to the amended
complaint
b) Filing versus service of pleadings
a. Amendment as a a. 15days from the the
Filing act of presenting the pleading or other paper matter of right service of the amended
to the clerk of court
complaint
Service act of providing a party with a copy of the
b. 10 days from the
pleading or paper concerned b. Amendment not a notice of order of
matter of right admitting the same
c) Periods of filing of pleadings

Answer to counter- 10 days from the

Answer to the 15 days from the claim or cross-claim receipt of the service
complaint service of summons thereof
unless different period
is fixed Answer to the third- Same period in
party complaint answering the
Answer of a defendant complaint.
foreign private juridical
entity Reply 10 days from the
service of the pleading
a. If he has resident a. 15 days from the responded to
agent service of summons to
such agent Answer to 10 days from the notice
b. if he has no resident supplemental of the order admitting
agent but it has an b. 15 days after the
complaint the supplemental
agent or officer within service of summons to
complaint, unless
the PH said agent or officer
different period is set by
the court.
c. If no resident agent, c. 10 days from the
agent or office within service of summons to
PH, summons be made the corporations office
on proper government
 REMEDIAL LAW REVIEWER
d) Manner of filing
How the pleadings, orders, motion, etc to be filed?
Personal filing
By presenting the original copies thereof, plainly
indicated as such, personally to the clerk of court and
the clerk of court shall endorse on the pleading the
date and hour of filing.
Filing by mail
By sending them by registered mail, and the date of
the mailing of motions, pleadings, etc or payments or
deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered
the date of their filing, payment or deposit in court.
The envelope shall be attached to the records of the
case.
It does not matter when the court actually receives
the mailed pleading. (Alama B. Russel vs Teofista
Ebasan and Agapito Austria. )
e) Modes of service
i. Personal service
How personal service is being done?
1. By delivering personally a copy to that
party or his counsel
2. By leaving it in his office in his clerk or
with a person having in charge thereof
3. If no person is found in his office, or his
office is not known, or he has no office,
then by leaving the copy, between the
hours of eight in the morning and six in
the evening, at the partys or counsels
residence if known, with a person of
sufficient age and discretion then
residing therein.
ii. Service by mail
If by registered mail, it shall be made by
depositing the copy in the office, in a sealed
envelope plainly addressed to the party of
his counsel at his office, if known, otherwise
Chapter III Civil Procedure
at his residence if known, with postage fully
prepaid, and with instructions that the
postmaster to return the mail to the sender
after 10 days if undelivered.
Pg.
What is the rule if no registry service is
27
available in the locality of either the sender
or addressee?
The service can be made in ordinary mail.
iii. Substituted service
When to resort to substituted service
Service made if the pleadings, motions,
notices, resolutions, orders and other papers
cannot be made under the two preceding
sections, the office and place of resident of
the party or his counsel being unknown.
How it is being made:
Delivering the copy to the clerk of court, with
a proof of failure both personal service and
service by mail.
The service is complete at the time of such
delivery.
NOTE: It is the duty of the counsel to inform
the court of his change of address. In the
absence of proper and adequate notice to
the court of change of his address, the
service of the order or resolution of a court
upon the parties must be made at the last
address of their counsel on record.
Service to the counsel of record even
though deceased is valid.
It is the duty of the party-litigants to be in
contact with their counsel from time to time
in order to be informed of the progress of
their case. It is likewise the duty of the
parties to inform the court of the fact of their
counsels death. Their failure to do so means
they have been negligent in the protection
of their cause.
REMEDIAL LAW REVIEWER
iv. Service of judgments, final orders or
resolutions
How is service of judgment, final orders, or
resolutions being made?
Either:
1. Personally
2. Registered Mail
3. When a party summoned by
publication has failed to appear in
the action, judgments, final orders
or resolutions against him shall be
served upon him also by publication
at the expense of the prevailing
party.
This rule does not permit the service of
notice to file an answer by publication.
Service by publication is only applicable in
judgments, final orders, and resolutions
when a party summoned by publication
failed to appear.
After service, a judgment or order which is
not appealed nor made subject of a motion
for reconsideration within the prescribed 15
day period attains finality.
v. Priorities in modes of service and filing
Whenever practicable, the service and filing
of pleadings and other papers shall be done
personally.
A resort to other modes must be
accompanied by a written explanation why
the service or filing was not done personally.
Except - with respect to papers emanating
from the court,
vi. When service is deemed complete
1. Personal service upon actual
delivery
2. Ordinary mail complete upon
expiration of 10 day after the
Chapter III Civil Procedure
mailing, unless the court provides
otherwise.
3. Registered mail complete upon
the actual receipt by the addressee
as shown by the registry return
Pg.
card, or five (5) days from the date 28
he received the first notice of the
post master, whichever date is
earlier (also known as constructive
service).
Insofar as constructive notice is concerned,
there must be conclusive proof that a first
notice was duly sent by the postmaster to
the addressee.
NOTE: The presumption of official duty is not
applicable here.
Best evidence of the completeness of
service
The best evidence would be, certification
from the postmaster who should certify not
only that the notice was issued or sent but
also as to how, when and to whom the
delivery and receipt was made.
The mailman may also testify that the notice
was actually received.
vii. Proof of filing and service
How to prove the filing of the pleading?
Its existence in the record of the case.
If it is not in the record?
If claimed to have been filed personally, it
shall be proved by the written or stamped
acknowledgement of its filing by the clerk of
court on a copy of the same.
If filed by a registered mail, by the registry
receipt and by the affidavit of the person
who did the mailing, containing a full
statement of the date and place of
depositing the mail in the post office in a
sealed envelope addressed to court, with
 REMEDIAL LAW REVIEWER
fully prepaid, and with instructions to the
postmaster to return the mail to the sender
after ten days if not delivered.
3.5.8. Amendment
Amendment - Amendment is an act of adding,
changing, substituting or omitting something from a
pleading, or instrument.
How amendment is made
b. Adding or striking out an allegation, or the
name of any party, or
c. By correcting a mistake in the name of a
party, or
d. Correcting a mistaken or inadequate
allegation or description in any other respect
so that the actual merits the controversy may
speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
a) Amendment as a matter of right
A party may amend his pleading once as a matter of
right at any time before a responsive pleading is
served or, in the case of a reply, at any time within ten
(10) days after it is served
b) Amendments by leave of court
Substantial amendments may be made only upon
leave of court.
But such leave may be refused if it appears to the
court that the motion was made with intent to delay.
Requirements for amendment by leave of court
Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and
after notice to the adverse party, and an opportunity
to be heard.
Chapter III Civil Procedure
c) Formal amendment
It is an amendment for any defect in the designation
of the parties and other clearly clerical or
typographical errors
Pg.
29
How formal amendment is made
A defect in the designation of the parties and other
clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party
d) Amendments to conform to or authorize
presentation of evidence
The rule - When issues not raised by the pleadings are
tried with the express or implied consent of the
parties they shall be treated in all respects as if they
had been raised in the pleadings.
How amendment is made
Such amendment of the 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 at any time, even after judgment; but
failure to amend does not effect 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.
Amendment to confer jurisdiction
As a rule, this is not allowed. However, if the
amendment is as a matter of right, thats before a
responsive pleading is served, the party may amend
the pleading to confer jurisdiction.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Difference from supplemental pleadings 6. If substantial amendment, it requires

another certification against forum
shopping.
Amendment of Supplemental
Pleadings Pleadings
7. In case the complaint is amended, it Pg.
requires the service of summons if the 30
1. Refers to facts 1. Refers to facts
defendant has court has not yet
existing at the time arising after the acquired jurisdiction over his person.
of the filing of the original
commencement of pleading
the action 2. Taken together
2. Supersedes the with the original
3.6. SUMMONS
original pleading pleading
3.6.1. Nature and purpose of summons in
3. May be made 3. Always with leave
relation to actions in personam, in rem and
without leave of of court
quasi in rem
court before 4. A substantial
responsive pleading does not Summons - is a writ by which a defendant is notified
pleading is served require the filing of of the action brought against him or her. In civil
4. When amended a new copy of the action, service of summons means by which the court
pleading is filed, a entire pleading acquires jurisdiction over the person of defendant.
new copy of the
entire pleading Any judgment without such service, in the absence of
must be filed valid waiver is null and void. This is so because the
court does not acquire jurisdiction over the person of
the defendant.
f) Effects of amended pleading
Two fold purpose of summons:
1. An amended pleading supersedes the
1. To acquire jurisdiction over the person of the
pleading that it amends.
defendant
2. The admissions in the superseded 2. To notify the defendant that an action has
pleadings may be received in evidence been commenced so that he may be given
against the pleader the opportunity to be heard in the claim
against him.
3. Claims or defences alleged therein not
incorporated in the amended pleading
shall be deemed waived In an action in personam,

The purpose of summons is not only to notify the

4. The admissions made in the original
defendant of the action against him but also to
pleading shall be treated as an
acquire jurisdiction over his person.
extrajudicial admission which shall be
alleged and proved In an action in rem or quasi in rem,

5. All ancillary orders to the original Jurisdiction over the defendant is not required and
pleading are lifted. the court acquires jurisdiction over an action as long
as it acquires jurisdiction over the res.
 REMEDIAL LAW REVIEWER
The purpose of summons in these actions is not the
acquisition of jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of
due process.
Knds of Summons
Original Summons a writ issued by the clerk of the
court upon receipt of the complaint and the payment
of the requisite docket and other lawful fees by which
the defendant is notified of the action brought
against him and require him to file his responsive
pleading within the period prescribed by the rules.
Alias Summons a writ issued by the clerk of court
when the original summons has been lost of not duly
served without the fault on the part of the plaintiff.
Contents of summons
Summons shall be directed to the defendant, signed
by the clerk of court under seal and contain the
following:
1. The name of the court and the names of the
parties to the action.
2. A direction that the defendant answer
within the time fixed by these rules.
3. A notice that unless the defendant so
answers, the plaintiff will take judgment by
default and may be granted the relief
applied for,
4. A copy of the complaint and the order for
appointment of guardian ad litem, if any,
shall be attached to the original and each
copy of the summons. Sec. 2, Rule 14.
Who can serve summons:
Summons issued by the clerk of court may be served
by:
1. The sheriff
2. His deputy; or
3. Other proper court officer; or
Chapter III Civil Procedure
4. For justifiable reasons, by any suitable
person authorized by the court issuing
summons. Sec. 3, Rule 14.
Pg.
Issuance of alias summons 31
When can he court issue alias summons?
An alias summons may be issued after the server has
served a copy of the return to the plaintiffs counsel
stating the reason for the failure of service, on the
following instances:
a. If a summon is returned without being
served on any or all of the defendants, or
b. If the summons has been lost.
3.6.2. Voluntary appearance
The voluntary appearance of the defendant is
equivalent to service of summons.
Voluntary appearance is a waiver of the necessity of
formal notice.
The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary
appearance. Sec. 20, Rule 14.
Exception to the voluntary submission to the
jurisdiction of the court
Special appearance, Such that party who make special
appearance to challenge among others, the courts
jurisdiction over his person.
Therefore,
1. When the defendant objects precisely to the
jurisdiction of the court, it cannot be
considered a voluntary appearance.
2. When a party makes a appearance in court
based on the ground of invalid service, it is
not deemed to be voluntary appearance.
 REMEDIAL LAW REVIEWER
Filing of opposition amounts to voluntary appearance
considering that the defendant has participated in
the proceedings and he has given the opportunity to
file his opposition to the petition.
Filing a motion to set aside the order of the default
and motion to admit answer is tantamount to
submission to the authority of the court b/c the
pleader seeks affirmative relief.
Filing a motion to dismiss assailing the jurisdiction of
the court over his person is not equivalent to
voluntary appearance.
NOTE: If there is no valid service of summons, a
motion to dismiss can be filed on the ground of lack
of jurisdiction over the person of the defending party.
3.6.3. Personal service
Whenever practicable, the summons shall be served
upon the person of the defendant by:
a. Handing a copy thereof to the defendant in
person, or
b. If he refuses to receive and sign for it, by
tendering it to him.
NOTE: The personal service of summon is the
preferred mode, provided he is in the PH.
Reason it ensures that he notice desired under
constitutional requirement of due process is
accomplished. Therefore, the personal service of
summons must be the first option before substituted
service in case of in personam and the defendant is
in the PH.
The mode itself, and not just service of summon, is
strictly required.
3.6.4. Substituted service
When substituted service of summons be made
Substituted service may be resorted to only when
service of summons within a reasonable time is
impossible impossible prompt the service should
appear in the return of service.
Chapter III Civil Procedure
What are the requisites for valid substituted service
of summons?
a. Impossibility of prompt personal service
Party relying on substituted service or the Pg.
sheriff must show that the defendant cannot 32
be served promptly or there is impossibility
of prompt service
b. Specific details in the return
The sheriff must describe in the Return of
Summons the facts and circumstances
surrounding the attempted personal service
c. A person of a suitable age and discretion The
sheriff must determine if the person found
in the alleged dwelling or residence of the
defendant is of legal age,
d. Competent person in charge, who must have
sufficient knowledge to understand the
obligation of the defendant in summons, its
importance, and the prejudicial effects
arising from inaction on summons.
How can substituted service of summons be effected
If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the
preceding section, service may be effected by:
a. Leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion then residing
therein.
b. Leaving the copies at the defendants office
or regular place of business with some
competent person in charge thereof.
Service in person of the defendant is the preferred
mode of service.
If the defendant refuses the service, the server should
not resort to substituted server. He must TENDER it
to him. Tendering is a part of the service in person.
 REMEDIAL LAW REVIEWER
The sheriff or server must first exert all efforts to
serve the defendant in person. If this effort fails, then
substituted service can be made. This effort must be
stated in the proof of service.
3.6.5. Constructive service (by publication)
As a rule, summons by publication is available only in
actions in rem or quasi in rem.
It is not available as a means of acquiring jurisdiction
over the person of the defendant in an action in
personam.
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established. It is the
publication of such notice that brings the whole world
as a party in the case and vests the court with
jurisdiction to hear and decide it
a) Service upon a defendant where his identity is
unknown or his whereabouts are unknown
How can the summons be served in case defendants
identity or whereabouts are unknown?
a. In action where defendant is designated as
unknown owner, or
b. Whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry,
Service may, by the leave of court, be affected
upon him by:
a. Publication in a newspaper of general
circulation and in such places and for such
time as the court may order.
How can a party ask for the leave of court regarding
service of summons?
It must be:
1. Motion in writing
Chapter III Civil Procedure
2. Supported by affidavit of the plaintiff or
some person on his behalf, setting forth the
grounds for application.
Can it be allowed in case of action in personam? Pg.
33
Yes. Because Sec. 14 says in any action. Therefore,
service of summons by publication is allowed in an
action in personam if the defendants whereabouts is
unknown.
b) Service upon residents temporarily outside the
Philippines
Who are these?
Defendant who ordinarily resides within the PH but
who is temporarily out of it.
How summons made? with leave of court, the
summons can be be effected out of the Philippines as
in extra-territorial service of summons under Sec. 15,
of Rule 14.
3.6.6. Extra-territorial service, when allowed
When extra-territorial service of summons be
effected?
a. When the defendant does not reside or is
not found in the PH, or the action affects the
personal status of the plaintiff or relates to;
or
b. The subject of which is, property within the
PH, in which the defendant has or claims a
lien or interest, actual or contingent, or
which the relief demanded consists, wholly
or in part, in excluding the defendant from
any interest therein; or
c. The property of the defendant has been
attached within the PH,
The service may, by leave of court, be effected out of
the PH.
 REMEDIAL LAW REVIEWER
How can extra-territorial service of summons be
done?
a. By personal service as under Sec. 6, Rule 14.
b. By publication in a newspaper of general
circulation in such places and for such time
as the court may order, in which case a copy
of the summons and order of court shall be
sent by registered mail to the last known
address of the defendant.
c. In any other manner the court may deemed
sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty
[60] days after the notice, within which the defendant
must answer.
NOTE: In in rem proceedings, summon is through
publication. It is the notice to the whole world that
the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort to the right sought to be established.
They are all deemed notified in the publication.
NOTE: In case of a non-resident defendant and the
case is action in personam, the court cannot acquire
jurisdiction. Unless, the person voluntarily appears in
court.
But if it is in rem, then the jurisdiction over the person
of defendant is not required, and publication
validated the proceedings.
If the defendant is a PH resident, service of summons
may, by leave of court, be effected out of Philippines
(Rule 14, Sec. 15). NOTE: here, the defendant must be
a citizen of the Philippines otherwise, the PH court
cannot acquire jurisdiction.
3.6.7. Service upon prisoners and minors
To whom the summons shall be served in case of
prisoners
Chapter III Civil Procedure
Upon him by the officer having the management of
such jail or institution who is deemed deputized as a
special sheriff for the said purpose. Sec. 9, Rule 14.
To whom summons shall be served in case of a minor
Pg.
or incompetent? 34
a. Upon him by personally and on his legal
guardian if he has one,
b. If none, upon his guardian ad litem whose
appointment shall be applied for by the
plaintiff
c. In the case of a minor, service may also be
made on his father or mother. Sec. 10, Rule
14.
Summons to Domestic Juridical Entity
When defendant is a corporation, partnership, or
association organized under laws of PH with juridicial
personality, service may be made on the following:
a. President
b. Managing partner
c. General partner
d. Corporate secretary
e. Treasurer
f. In-house counsel
Otherwise, the service is insufficient.
The enumerations are exclusive.
What is the remedy of the plaintiff in case of
summons cannot be made to officers of the
corporation in action in personam?
The remedy of the plaintiff in case of failure to serve
the summons to the officers of a domestic
corporation in an action in personam is to amend his
complaint and asked for the issuance of writ of
preliminary attachment thereby converting the
action into an action quasi in rem where service of
summons by publication is allowed in order to action
jurisdiction over the res and the acquisition of
jurisdiction is merely for observance of due process.
 REMEDIAL LAW REVIEWER
3.6.8. Proof of service
It must be in writing.
Contents of the proof of service of summons:
1. Manner, place and the date of service
2. Specify any papers which have been served
with the process
3. Name of the person who received the same
4. It shall be sworn to when made by a person
other than the sheriff or his deputy
Proof of the service of summons by publication
1. Affidavit of the printer, his foreman or
principal clerk or of the editor, business or
advertising manager, to which affidavit a
copy of the publications shall be attached,
2. By an 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.
3.7. MOTIONS
3.7.1. Motions in general
a) Definition of a motion
Motion - A motion is an application for relief other
than by a pleading.
A partys request, written or oral, to the court for an
order or other action. It shall include an informal
written request to the court, such as a letters. Rules
on Small Claims
b) Motions versus pleadings
Motion Pleadings
A motion is an Pleadings are the
application for relief written statements of
the respective claims
Chapter III Civil Procedure
other than by a and defenses of the
pleading. parties submitted to
the court for
A Motion is no a appropriate judgment
pleading
Pg.
35
Motions must be in writings
All motions shall be in writing except those made in
open court or in the course of a hearing or trial. Sec.
2, Rule 15.
c) Contents and forms of motions
A motion shall state:
1. the relief sought to be obtained and
2. the grounds upon which it is based, and
3. if required by these Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers.
d) Notice of hearing and hearing of motions
Except for motions which the court may act upon
without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the
applicant.
Three day notice rule
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at
least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter
notice.
Ten day notice rule
The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the
hearing which must not be later than ten (10) days
after the filing of the motion
Proof of service is necessary
No written motion set for hearing shall be acted upon
by the court without proof of service thereof.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Omnibus motion rule Bill of Particulars a more definite statement of fact

and material allegations in the pleadings.
Subject to the provisions of section 1 of Rule 9, a
motion attacking a pleading, order, judgment, or Motion for bill of particulars application before the
proceeding shall include all objections then available, court for a more definite statement of fact and Pg.
and all objections not so included shall be deemed material allegations in the pleadings. 36
waived
NOTE: Failure to allege fraud does not constitute
Exceptions to the omnibus motion rule:
ground for dismissal because it can be cured in a bill
of particulars
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata Bill of particulars in Bill of particulars in
4. Statute of limitations Civil Cases Rule 12 Criminal Cases Rule 116

f) Litigated and ex parte motions 1. Must be filed 1. Must be filed before

before responsive arraignment
Litigated - a motion which is made with notice to the pleading, or 10 2. Directed against the
adverse party to give an opportunity to oppose. days in case of criminal complaint
reply or information
Ex parte - A motion made without the presence or a 2. Directed against 3. The accused may
notification to the other party because the question the pleading proceed with the
generally presented is not debatable. 3. The moving party arraignment and
may file his enter his plea,
Other kinds of motions responsive unless the denial is
pleading within tainted with grave
Non litigated a motion where notice and hearing the period he is abuse of discretion,
are not required. entitled to but in hence Petition for
no case less than Certiorari is the
Special a motion addressed to the sound discretion five days, unless remedy.
of the court. the denial is
tainted with grave
Written motions not made in open court. This is the abuse of
general rule. discretion, hence
Petition for
Oral a motion made in open court. Certiorari is the
remedy.
Motion of course the applicant is entitled to the
relief sought subject to the discretion of the court.

g) Pro-forma motions

A motion that fails to comply with the requirements a) Purpose and when applied for
of the rule is a pro-forma motion. The same produces
Purpose
no legal effect and the court has no authority to act
upon it.
The purpose of the motion is to seek an order from
the court directing the pleader to submit a bill of
3.7.2. Motions for bill of particulars
particulars which avers matters with sufficient
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

definitiveness or particularity to enable the movant to 3. Make such other order as it deemed just
prepare his responsive pleading.

When a party can apply for bill of particulars d) Effect on the period to file a responsive pleading

Effect of filing motion for bill of particulars Pg.

Before a responding to a pleading. Therefore, within
37
the time required to file a responsive pleading and The filing of the motion of bill of particulars stays the
before a responsive pleading is filed by him. filling of the answer or responsive pleading.

In a reply, it must be within 10 days from the service Effect of service of a more definite statement or the
thereof. denial of the motion
The moving party may file a responsive pleading
The motion for bill of particulars should contain:
within the period to which he was entitled at the time
1. The defects complained of of filing in his motion, which shall not be less than 5
2. Paragraphs wherein they are contain days in any event.
3. Details desired
In what proceedings Bill of Particualrs is prohibited?
b) Actions of the court
a. Prohibited in intra-corproate controversies
Upon filing, the clerk of court must immediately bring Bill of particulars is prohibited in Intra-Corporate
it to the attention of the court, in which the court Controversies under Interim Rules of Procedure on
may: Intra-Corporate Controversies.

1. Deny It is therefore essential for the complaint to show on

2. Grant it outright its face what are claimed to be fraudulent corporate
3. Allow the parties the opportunity to be acts if the complainant wishes to invoke the courts
heard special jurisdiction. Reason fraud in intra-corporate
controversies must be based on devises and
When to comply if the motion is granted? schemes employed by, or any act, the board of
directors, business associates, officers or partners,
1. Within 10 days from the notice of order amounting to fraud o misrepresentation which may
2. Unless a different period if fixed by the court be detrimental to the interest of public and/or of the
It may be in whole or in part. stock holders, partners, or members of any
corporation partnership, or association.
How to file bill of particulars?
The act of fraud and misrepresentation complained in
1. By separate pleading the pleading of becomes a criterion in determining
2. Amended pleading, whether the complaint on its fact has merits, or
within the jurisdiction of special commercial court, or
c) Compliance with the order and effect of merely a nuisance suit.
noncompliance
b. Prohibited in Summary Procedure expressly
Effects of non-compliance of insufficient compliance provided in Sec. 19, b.
c. Prohibited in Small Claim Cases Sec. 14, b.
1. Order the striking out of the pleading d. Prohibited in Environmental Cases Rule 2, Sec.
2. Order the striking the portions to which the 2, b.
order directed
 REMEDIAL LAW REVIEWER
3.7.3. Motion to dismiss
Motion to dismiss an application for the dismissal
of the action based on the grounds set forth in the
Sec. 1, Rule 16.
It is filed answering to a complaint or pleading.
a) Grounds
A motion to dismiss may be made on any of the
following grounds:
a. That the court has no jurisdiction over the
person of the defending party;
b. That the court has no jurisdiction over the
subject matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending
between the same parties for the same
cause;
f. That the cause of action is barred by a prior
judgment or by the statute of limitations;
g. That the pleading asserting the claim states
no cause of action;
h. That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
i. That the claim on which the action is
founded is enforceable under the provisions
of the statute of frauds; and
j. That a condition precedent for filing the
claim has not been complied with.
b) Resolution of motion
The hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of
the pleading.
The court shall not defer the resolution of the motion
for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor.
c) Remedies of plaintiff when the complaint is
dismissed
Chapter III Civil Procedure
If without prejudice, the plaintiff may refile the
action.
If with prejudice, Appeal from the order of dismissal.
Pg.
If with prejudice, and with grave abuse of discretion
38
Petition for certiorari.
d) Remedies of the defendant when the motion is
denied
a. File an answer with the reglementary
period, If the motion is denied, the movant
shall file his answer within the balance of the
period prescribed by Rule 11 to which he was
entitled at the time of serving his motion,
but not less than five (5) days in any event,
computed from his receipt of the notice of
the denial. If the pleading is ordered to be
amended, he shall file his answer within the
period prescribed by Rule 11 counted from
service of the amended pleading, unless the
court provides a longer period. Sec. 4, Rule
16.
b. If the denial is with grave abuse of
discretion, petition for certiorari under Rule
65.
c. File an answer, proceed to trial, and await
judgment before interposing an appeal
e) Effect of dismissal of complaint on certain grounds
Subject to the right of appeal, an order granting a
motion to dismiss based on paragraphs (f), (h) and (i)
of section 1 hereof shall bar the refiling of the same
action or claim.
Where there is a bar for refiling the same action or
claim
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;
i. That the claim on which the action is
founded is enforceable under the provisions
of the statute of frauds
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Therefore, dismissal based on other grounds would
tantamount to dismissal without prejudice, and the
plaintiff can still refile the case.
f) When grounds pleaded as affirmative defenses
Remedy is no motion to dismiss has been filed
No motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and,
in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss had
been filed.
If as between the two cases, only the identities of the
parties can be shown, but not identical cause of
action, the res judicata as conclusiveness of
judgment applies.
Pg.
Conclusiveness of Judgment 39
Where there is identity of parties in the first and
second cases, but no identity of causes of action the
first judgment is conclusive only as to those matters
actually and directly controverted and determined
not as to matters merely involved therein. This is the
concept of res judicata known as conclusiveness of
judgment.

The dismissal of the complaint under this section shall Effect the binding effect and enforceability of that
be without prejudice to the prosecution in the same earlier dictum can no longer be re-litigated in a later
or separate action of a counterclaim pleaded in the since the issue has already been resolved and finally
answer.
laid to rest in the earlier case.
g) Bar by dismissal
h) Distinguished from demurrer to evidence under
Res judicata as a ground for dismissal is based on two Rule 33
grounds, namely:
Motion to dismiss Demurrer to evidence
a. public policy and necessity, which makes it to the
interest of the State that there should be an end
to litigation (republicae ut sit litium); and Filed before filing an Made after the plaintiff
b. the hardship on the individual of being vexed answer to a complaint rests its case (after
twice for the same cause (nemo debet bis vexari or pleading presentation of
et eadem causa). evidence)
Grounds set forth in
Two concepts of res judicata Sec. 1, Rule 16. Ground is that the
plaintiff is not entitled
1. Bar by prior judgment If denied, remedy is to to relief
2. Conclusiveness of judgment file an answer, and wait
for the case to be If denied, present
Requisites for barred by prior judgment-
terminated and allege evidence.
on appeal the grounds
1. The former judgment or order must be final
for motion to dismiss.
2. It must be a judgment on the merits
3. It must have been rendered by a court
having jurisdiction over the subject matter
and the parties
4. There must be between the first and second
actions, identity of parties, subject matters
and cause of actions.
 REMEDIAL LAW REVIEWER
3.8. DISMISSAL OF ACTIONS
3.8.1. Dismissal upon notice by plaintiff; two-
dismissal rule
A complaint may be dismissed by the plaintiff by filing
a notice of dismissal at any time before service of the
answer or of a motion for summary judgment.
When to be made:
1. Any time before service of the answer
2. Motion for summary judgment
3. If there is none, before the introduction of
evidence at the trial or hearing.
Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without
prejudice. Sec. 4, Rule 17.
Two dismissal rule
A notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim.
3.8.2. Dismissal upon motion by plaintiff; effect
on existing counterclaim
Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's
instance save upon approval of the court and upon
such terms and conditions as the court deems proper.
Effect of the counter-claim
If a counterclaim has been pleaded by a defendant
prior to the service upon him of the plaintiffs motion
for dismissal, the dismissal shall be limited to the
complaint.
The dismissal shall be without prejudice to the right
of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to
have his counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice.
Chapter III Civil Procedure
Requirement for dismissal upon motion of the
plaintiff in class suit
A class suit shall not be dismissed or compromised
without the approval of the court.
Pg.
40
3.8.3. Dismissal due to the fault of plaintiff
When there can be dismissal due to the fault of the
plaintiff
If, for no justifiable cause,
1. The plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or
2. The plaintiff fails to prosecute his action for
an unreasonable length of time, or
3. The plaintiff fails to comply with these Rules
or any order of the court
How the dismissal can be made
The complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute
his counterclaim in the same or in a separate action.
Effect of the dismissal under this Rule
This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the
court
3.8.4. Dismissal of counterclaim, cross-claim or
third-party complaint
The provisions of this Rule shall apply to the dismissal
of any counterclaim, cross-claim, or third-party
complaint.
A voluntary dismissal by the claimant by notice as in
section 1 of this Rule, shall be made before a
responsive pleading or a motion for summary
judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.9. PRE-TRIAL (Rule 18) Court annexed mediation

3.9.1. Concept of pre-trial Court annexed mediation (CAM) is a part of pre-trial

and now mandatory. Once agreed, it will be
Pre-trial A procedural device used prior to trial to submitted to the courts approval. Mediators are Pg.
narrow issues to be tried, and to secure stipulations accredited and trained from Philippine Mediation 41
as to matters and evidence to be heard, and to take Center.
all other steps necessary to and in the disposition of
the case. 3.9.3. Notice of pre-trial

When to Conduct Rule in notice of pre-trial conference

After the last pleading has been served and filed. It
shall be the duty of the plaintiff to promptly move ex
parte that the case be set on pre-trial.
If the plaintiff fails to move ex parte to set the case on
pre-trial, the clerk of court shall set the same.
3.9.2. Nature and purpose
1. The notice shall be served on counsel
2. Or to the party is he has no counsel
The counsel is then charged with eth duty of notifying
the party represented by him.
3.9.4. Appearance of parties; effect of failure to
appear

A pre-trial is mandatory. It shall be the duty of the parties and their counsel to
appear at the pre-trial.
Purposes of Pre-trial
How can a party be excused from appearing in the
1. The possibility of an amicable settlement or pre-trial
of a submission to alternative modes of
dispute resolution; 1. Valid cause is shown therefore,
2. The simplification of the issues; 2. If a representative shall appear in his behalf,
3. The necessity or desirability of amendments he shall be fully authorized in writing to:
to the pleadings; a. Enter amicable settlement
4. The possibility of obtaining stipulations or b. Submit to alternative modes of dispute
admissions of facts and of documents to
resolution
avoid unnecessary proof;
c. Enter into stipulation or admissions of
5. The limitation of the number of witnesses;
facts and documents.
6. The advisability of a preliminary reference of
issues to a commissioner;
7. The propriety of rendering judgment on the Effects of failure to appear in pre-trial
pleadings, or summary judgment, or of
dismissing the action should a valid ground If plaintiff fails to appear,
therefor be found to exist;
8. The advisability or necessity of suspending 1. He will be declared non-suited
the proceedings; and 2. It will cause dismissal of the action,
9. Such other matters as may aid in the prompt a. with prejudice,
disposition of the action. b. unless provided by the court.

The dismissal is without prejudice to the counter

claim raised by the defendant which can be
prosecuted in another case.
 REMEDIAL LAW REVIEWER
Since the dismissal is with prejudice and it has
adjudication on merits, the remedy is appeal. If the
court provided that it shall be not with prejudice, then
certiorari is the remedy.
If defendant fails to appear,
1. Allow the plaintiff to present evidence ex-
parte
2. Allow the court render judgment on basis
thereof, in this case, there is no limitation on
extend of award or relief prayed.
Possible remedy of the defendant
a. Before judgment since it is interlocutory
order, certiorari under R 65
b. After judgment but before finality MR or
New Trial based on FAME, if denied, appeal
on the judgment, unless tainted with GAD
then certiorari is available.
c. After finality of judgment Petition for
relief of judgment, Rule 38, Motion for
annulment of judgment if the MR or NT is
not available, petition for certiorari,
collateral attack.
3.9.5. Pre-trial brief; effect of failure to file
When filed
In such manner as to insure their receipt at least 3
days before the date of pre-trial.
Contents of pre-trial brief
1. A statement of their willingness to enter into
amicable settlement or alternative modes of
dispute resolution, indicating the desired
terms thereof;
2. A summary of admitted facts and proposed
stipulation of facts;
3. The issues to be tried or resolved;
4. The documents or exhibits to be presented
stating the purpose thereof;
5. A manifestation of their having availed or
their intention to avail themselves of
Chapter III Civil Procedure
discovery procedures or referral to
commissioners; and
6. The number and names of the witnesses,
and the substance of their respective
testimonies.
Pg.
42
What is the effect of non-filing?
Same effect of failure to appear. Therefore, a plaintiff
may be declared non-suited and the case be
dismissed with prejudice. In case of defendant, there
will be an ex parte presentation of evidence and
judgment will be rendered based on the same.
Contents of records of pre-trial
1. Recite in detail the matters taken up
2. Action taken
3. Amendments allowed to the pleadings
4. Agreements or admissions made by the
parties as to any of the matters considered.
5. Should the action proceed to trial, the order
shall, explicitly define and limit the issues to
be tried.
6. The contents of the order shall control the
subsequent course of the action, unless
modified before trial to prevent manifest
injustice
May pre-trial order be amended or modified?
Yes. The contents or order shall control the
subsequent course of action, unless modified before
tiral to prevent manifest of justice.
3.9.6. Distinction between pre-trial in civil case
and pre-trial in criminal case
Civil Pre-Trial Criminal Pre-Trial
1. The plaintiff move 1. The court orders
ex parte to set the pre-trial, no
case for pre-trial motion is required
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

2. Filed after the last 2. Filed 30 days after Matters cannot be compromised
pleading have been the court acquired
1. Civil status of persons
served and filed jurisdiction
2. Validity of marriage
3. There is a 3. No possibility of 3. Legal separation
Pg.
possibility of amicable 4. Grounds for legal separation 43
amicable settlement 5. Future support
settlement 6. Legitime
4. Agreements and 7. Jurisdiction
4. Agreements and admissions must Lawyers are allowed to attend in mediation and their
admissions in pre- be signed by the role is that of an adviser, consultant or free legal aid
trial need not be parties and
counselor for indigent litigants.
signed by the counsel.
parties and their
Alternative Dispute Resolution Act
counsel. It is 5. In case of non-
implied. appearance,
Sec. 24 states that RTC does not have jurisdiction over
sanctions are
disputes that are properly subject of arbitration
5. In case of non- imposed against
pursuant to arbitration clause, and mandates the
appearance of the counsel of
plaintiff, it will accused and referral to arbitration.
cause dismissal prosecutor
Uncitral Law
with prejudice, if it
is the defendant,
Sec. 35 states that foreign arbitral awards must be
there will be ex-
parte presentation confirmed by the RTC to be enforceable.
of evidence.
NOTE: Parties are bound by delimitation of issues
during the pre trial because they themselves agreed
to the same. Munasque vs CA

3.9.7. Alternative Dispute Resolution (ADR) 3.10. INTERVENTION

a) Special Rules of Court on ADR (A.M. No. 07-11-08- Intervention - a proceeding whereby a party, with
SC) leave of court, is allowed to intervene in an action
whenever he has a legal interest in the matter in
Cases that are mediatable- litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be
1. All civil cases adversely affected by the distribution or other
2. Settlement of Estate disposition of property in the custody of the court or
3. Cases coginizable by Lupon Tagapamayapa of an officer thereof.
4. Cases governed by Summary Procedure
5. Civil aspect of criminal negligence under RPC 3.10.1. Requisites for intervention
6. Family law issues, such as support, custody,
visitation, guardianship and property Requisites:
matters
1. The party has a legal interest in the matter in
7. Civil aspect of BP22, simple theft, libel and
litigation, or in the success of either of the
estafa.
parties, or an interest against both, or is so
situated as to be adversely affected by a
 REMEDIAL LAW REVIEWER
distribution or other disposition of property
in the custody of the court or of an officer
thereof
2. With leave of court
3. The same is not intended for delay or
prejudice the adjudication of the rights of
the original parties
3.10.2. Time to intervene
The motion to intervene may be filed at any time
before rendition of judgment by the trial court. A copy
of the pleading-in-intervention shall be attached to
the motion and served on the original parties.
The intervenor shall file:
1. A complaint-in-intervention if he asserts a
claim against either or all of the original
parties, or
2. An answer-in-intervention if he unites with
the defending party in resisting a claim
against the latter.
The answer to the complaint-in-intervention shall be
filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed
by the court
3.10.3. Remedy for the denial of motion to
intervene
The remedy in case of denial is to file a separate
action, or appeal, or mandamus if the denial is tainted
with grave abuse of discretion, petition for certiorari
under Rule 65 if there are no other plain, speedy, and
adequate remedy.
3.11. SUBPOENA (Rule 22)
Subpoena a coercive process issued by the court or
judge stating the name of the court and the title of
the action for investigation, direct to a person and
requiring him to attend the hearing on the trial of an
action, at the state date, time and place.
Chapter III Civil Procedure
Kinds of Subpoena-
1. Subpoena ad testificandum
2. Subpoena duces tecum.
Who may issue subpoena? Pg.
44
1. The court before whom the witness is
required to attend
2. The court of the place where the deposition
is to be taken
3. The officer or body authorized by law to do
so in connection with investigations
conducted by the said officer or body
4. Any justice of the SC or CA in any case or
investigation pending within the PH
Subpoena to a prisoner
When application for a subpoena to a prisoner is
made, the judge or officer shall examine and study
carefully such application to determine whether the
same is made for a valid purpose.
Limitation in issuance of subpoena - No prisoner
sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal
institution shall be brought outside the said penal
institution for appearance or attendance in any court
unless authorized by the Supreme Court
3.11.1. Subpoena duces tecum
A subpoena for the taking of his deposition. It may
also require him to bring with him any books,
documents, or other things under his control
3.11.2. Subpoena ad testificandum
A subpoena directed to a person requiring him to
attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by
competent authority
 REMEDIAL LAW REVIEWER
3.11.3. Service of subpoena
How subpoena is served?
Service of a subpoena shall be made in the same
manner as personal or substituted service of
summons.
What is the duty of the person serving the
subpoena?
1. The original shall be exhibited
2. A copy thereof delivered to the person on
whom it is served,
3. Tendering to him the fees for one day's
attendance and the kilometrage allowed by
these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof,
the tender need not be made.
What is the manner of service?
The service must be made so as to allow the witness
a reasonable time for preparation and travel to the
place of attendance. If the subpoena is duces tecum,
the reasonable cost of producing the books,
documents or things demanded shall also be
tendered
What is the effect if person is in court?
A person present in court before a judicial officer may
be required to testify as if he were in attendance upon
a subpoena is sued by such court or officer. Sec. 7,
Rule 22.
3.11.4. Compelling attendance of witnesses;
contempt
Courses of action of the court in case of failure of the
witness to attend:
Chapter III Civil Procedure
Upon proof of the service thereof and of the failure of
the witness, may-
1. May issue a warrant to the sheriff of the
province, or his deputy, to arrest the witness
Pg.
and bring him before the court or officer 45
where his attendance is required, and
2. The cost of such warrant and seizure of such
witness shall be paid by the witness if the
court issuing it shall determine that his
failure to answer the subpoena was willful
and without just excuse. Sec. 8, Rule 22.
3.11.5. Quashing of subpoena
When to file
Upon motion promptly made, in any event, at or
before the time specified therein. Sec. 4, Rule 22.
Grounds for quashing subpoena duces tecum:
1. If it is unreasonable and oppressive
2. Relevancy of the books, documents or things
does not appear
3. If the person in whose behalf the supoeana
is issued fails to advance the reasonable cost
of production thereof.
Grounds for quashing subpoena ad testificandum:
1. The witness is not bound thereby
2. In either case, the subpoena may be
quashed on the ground that witness fees and
kilometrage allowed by these Rules were not
tendered when subpoena is served. Sec. 4,
Rule 22.
 REMEDIAL LAW REVIEWER
3.12. MODES OF DISCOVERY
Modes of discovery It is a device to obtain
information about relevant matters on case form
adverse party in preparation of pre-trial.
Purposes of modes of discovery-
1. Used as device to narrow and clarify basic
issues between the parties
2. Used as device for ascertaining facts relative
to the issues between the parties
3. To obtain full knowledge of the issues and
facts of the case
4. To avoid perjury and detection of false and
fraudulent claims and defenses
5. To expedite the proceedings
6. To simplify the issues of the case
Nature of modes of discovery
It rests upon the sound discretion of the court. In the
same vein, their sanctions for failure to comply also
rest on sound discretion of the court.
What are the modes of discoveries under the Rules?
1. Deposition pending action - Rule 23
2. Deposition before action or pending appeal -
Rule 24
3. Interrogatories to parties - Rule 25
4. Admission by adverse party - Rule 26
5. Production or inspection of documents or
things Rule 27
6. Physical and mental examination of persons
- Rule 28
Kinds of deposition
a. As to nature
1. Deposition de bene esse testimony of
a witness or party pending action
2. Deposition in perpetuam rei memoriam
testimony of a witness or a party
before action
Chapter III Civil Procedure
b. As to maker of taking
1. Deposition by oral examination
2. Deposition by written interrogatories
Pg.
Purpose of taking depositions 46
1. Assist the parties ascertaining the truth
in checking and preventing injury
2. Provide an effective means of detecting
and exposing false, fraudulent claims
and defenses
3. Make available in a simple, convenient
and inexpensive way, facts which
otherwise could not be proved except
with greater difficulty
4. Educate the parties in advance of trial s
to real value of their claims and
defenses thereby encouraging
settlement
5. Expedite litigation
6. Prevent delay
7. Simplify and narrow down issues
8. Expedite both preparation and trial
3.12.1. Depositions pending action (Rule 23);
depositions before action or pending appeal
(Rule 24)
a) Meaning of deposition
Deposition defined it its the taking of the
testimony of any person, upon oral or written
interrogatories whether a part or not, at instance of
any party.
Depositions pending action; how made
By leave of court, after the court acquired jurisdiction
over the defend ant or property of the subject matter.
Without such leave, after an answer has been served.
Sec. 1, Rule 23.
 REMEDIAL LAW REVIEWER
Depositions before action; how made
Any person who desires to perpetuate his own
testimony or that of another person may file petition
regarding:
1. Any matter that may be cognizable before in
any court of PH
2. In court of the place of residence of expected
adverse party. Sec. 1, Rule 24
Deposition pending appeal; how made
If an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper cases,
or before the taking of an appeal if the time therefor
has not expired, the court in which the judgment was
rendered may:
1. Allow the taking of depositions of witnesses
to perpetuate their testimony for in the
event of further proceedings in the said
court. Sec. 7, Rule 24.
Primary function of modes of discovery 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 of the trial.
b) Uses; scope of examination
Uses of depositions
At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of
evidence, may be used against any party who was
present or represented at the taking of the deposition
or who had due notice thereof, in accordance with
any one of the following provisions;
(a) Any deposition may be used by any party
for the purpose of contradicting or
impeaching the testimony of deponent as a
witness;
Chapter III Civil Procedure
(b) 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; Pg.
47
(c) The deposition of a witness, whether or
not a party, may be used by any party for any
purpose if the court finds: (1) that the
witness is dead, or (2) 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 (3) that
the witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment, or (4) that the party offering
the deposition has been unable to procure
the attendance of the witness by subpoena;
or (5) 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
(d) 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.
Scope of depositions
Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be
examined regarding any matter, not privileged, which
is 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.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

c) When may objections to admissibility be made justice, with an offer on the part of the court making
the request, to do the like for another, in a similar
Subject to the provisions of section 29 of this Rule, case.
objection may be made at the trial or hearing, to
receiving in evidence any deposition or part thereof
Pg.
for any reason which would require the exclusion of Commission Letter Rogatory
48
the evidence if the witness were then present and
testifying
1. An instrument 1. Instrument
d) When may taking of deposition be terminated or issued by a court of whereby a foreign
its scope limited justice, or other court is informed
competence of pendency of a
At any time during the taking of the deposition, on
tribunal to case and the name
motion or petition of any party or of the deponent,
authorize a person of the witness, and
and upon a showing that the examination is being
to take depositions, Is requested to
conducted:
or do any other act cause their
1. in bad faith or by authority of such depositions to be
2. in such manner as unreasonably to annoy, court or tribunal. taken in due
embarrass, or oppress the deponent or 2. Addressed to non- course of law for
party, judicial foreign furtherance of
officer who will justice, with an
The court in which the action is pending or the take deposition offer on the part of
Regional Trial Court of the place where the deposition 3. Rules applicable the court making
is being taken may order the officer conducting the
are those of the request, to do
examination to cease forthwith from taking the
requesting court the like for
deposition, or may limit the scope and manner of the
4. Allowed if another, in a
taking of the deposition, as provided in section 16 of
this Rule. permission of the similar case.
foreign country is 2. Addressed to
If the order made terminates the examination, it shall given judicial officer of a
be resumed thereafter only upon the order of the foreign country
court in which the action is pending. Upon demand of who will direct the
the objecting party or deponent, the taking of the taking of
deposition shall be suspended for the time necessary deposition
to make a notice for an order. In granting or refusing 3. Rules applicable is
such order, the court may impose upon either party
the of foreign court
or upon the witness the requirement to pay such
4. Allowed if
costs or expenses as the court may deem reasonable.
commission was
Commission an instrument issued by a court of disallowed by the
justice, or other competence tribunal to authorize a foreign country
person to take depositions, or do any other act by
authority of such court or tribunal.

Letter rogatory instrument whereby a foreign court

is informed of pendency of a case and the name of the
witness, and Is requested to cause their depositions
to be taken in due course of law for furtherance of
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Deposition vs Affidavit appeal from adverse judgment where incorporated

in said appeal is the grounds for assailing the
interlocutory order.
Deposition Affidavit
Exception is the order disallowing the petitioners Pg.
written interrogatories are patently erroneous, hence 49
1. Taking of testimony 1. It may be taken ex
certiorari is warranted.
requires notice to parte
other party 2. It does not need
a) Response to the written interrogatories;
2. May be taken in form such form Consequences of refusal to answer
of question and 3. May or may not
answer based on be used in a Requirements in response to interrogatories:
written examination proceeding
or written a. Answered fully in writing
interrogatories b. Shall be signed and sworn by the person
before authorized making them.
persons;
3. May be used as When to file answer to interrogatories?
evidence pending a
a. Shall file and serve a copy of the answers on
case
the party submitting the interrogatories
within fifteen (15) days after service thereof
b. Unless the court on motion and for good
3.12.2. Written interrogatories to adverse cause shown, extends or shortens the time.
parties (Rule 25) Sec. 2, Rule 25.
If the adverse party fails to properly respond to the
Rule on written interrogatories to adverse parties written interrogatories, he shall be deemed as in
default, and will be subject to judgment by default.
Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and b) Effect of failure to serve written interrogatories
relevant facts from any adverse parties shall:
The effects of failure to serve written
a. File and serve upon the latter written interrogatories:
interrogatories to be answered by the party
served Unless thereafter allowed by the court for good cause
b. If the party served is a public or private shown and to prevent a failure of justice, a party not
corporation or a partnership or association, served with written interrogatories may not be:
by any officer thereof competent to testify in
its behalf. Sec. 1, Rule 25. a. Compelled by the adverse party to give
testimony in open court, or
b. To give a deposition pending appeal. Sec. 6,
Remedy in case of denial of written interrogatories Rule 25.

It is interlocutory in nature, and the extraordinary

remedy of writ of certiorari is generally not an
available remedy to challenge an interlocutory order
of a trial court. The proper remedy in such a case is
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

inadmissible. Lacbayan vs Samoy, GR

Written Interrogatories Written 165427, March 21 2011
Rule 23 Interrogatories Rule 25
a. Deponent is a third a. Directly served to
person not adverse party How can a request by adverse party be made? Pg.
necessarily a party b. No officer to take 50
b. An officer is deposition is At any time after issues have been joined, a party may
required to take required file and serve upon any other party may file and serve
depositions upon any other party a written request for:

1. The admission by the latter of the

genuineness of any material and relevant
document described in and exhibited with
Bill of Particulars Written the request or
Interrogatories Rule 2. The truth of any material and relevant
25 matter of fact set forth in the request.
a. Intended for a. Seek to disclose all 3. Copies of the documents shall be delivered
purpose of material and with the request unless copy have already
clarifying relevant facts form been furnished.
ambiguities in a a party
pleading or to state b. Not directed to
with sufficient pleadings, but to a) Implied admission by adverse party
definiteness the material and
allegations in the relevant facts Implied admission rule
pleading within the
Each matter must be denied specifically under oath
b. Direct to the knowledge of
setting forth in detail the reason why he cannot
pleadings with adverse party
truthfully admit or deny. The silence of the defendant
ambiguous
on the plaintiffs request for admission amounts to an
allegations
implied acceptance of the facts set forth therein with
the effect that plaintiffs claim stood undisputed.
3.12.3. Request for admission (Rule 26)

Admission defined, Limitations to the rule

An admission is any statement of fact made by a party
against his interest or unfavorable to the conclusion
for which he contents or is inconsistent with the facts
alleged by him.
Requirements for admission to be admissible:
1. Involve matters of fact and not of law
2. Be categorical and definite
3. Be knowingly and voluntarily made
4. Be adverse to the admitters interests,
otherwise it would be self-serving and
The redundant and unnecessarily vexatious nature of
the petitioners request for admission rendered it
ineffectual, futile and irrelevant so as to proscribe the
operation of the implied admission. Limos vs Sps.
Odones
b) Consequences of failure to answer request for
admission
If the adverse party fails to answer the request for
written admission, the admission shall be deemed
admitted.
 REMEDIAL LAW REVIEWER
The plaintiff may now move for Motion for Judgment
on the Pleadings because there is no more genuine
issue.
What are the actions that can be made by party a
written request for admission is served?
Each of the matters of which an admission is
requested shall be deemed admitted unless, within a
period designated in the request, the party served
will:
a. File 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 which
shall not be less than 15 days after the
service thereof.
b. Within such further time as the court may
allow on motion
Rule in case of filing an objection
a. Submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement as
contemplated in the preceding paragraph
and
b. His compliance therewith shall be deferred
until such objections are resolved, which
resolution shall be made as early as
practicable.
c) Effect of admission
What are the effects of admission
a. It is only for the purpose of the pending
action
b. Shall not constitute an admission by him for
any other purpose
c. Nor said admission be used against him in
any proceedings.
Chapter III Civil Procedure
d) Effect of failure to file and serve request for
admission
Pg.
Effect of failure to file and serve request for
51
admission
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, shall not
be permitted to present evidence on such facts.
Exception For good cause shown and to prevent a
failure of justice
3.12.4. Production or inspection of documents
or things (Rule 27)
Two motions under Rule 27
1. Motion for production and inspection of
documents and things
2. Motion to allow entry upon a designated
place for purposes of inspection, measuring,
and surveying of property
Courses of action on the motion for production and
inspection of documents and things
(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, 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
(b) 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
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

photographing the property or any 3. It can be availed of production of

designated relevant object or operation by motion evidence
thereon. The order shall specify the time, 2. Directed against
place and manner of making the inspection any person which
and taking copies and photographs, and may includes litigants Pg.
prescribe such terms and conditions as are 3. By means of a 52
just. request issued ex
parte
Things that are privileged and cannot be subject of
Rule 27:

1. Privileged communication between husband

and wife, Sec. 24(a) Rule 130 Production and Exception to the Best
2. Between attorney and client Sec. 24 b Rule Inspection of Evidence Rule when
130 Documents the original is in the
3. Between physician and patient, Sec. 24c Rule possession of adverse
130 party under Sec. 3 (b)
4. Communication of public officer and public Rule 130
interest Sec. 24 e, Rule 130
5. Editors may not be compelled to disclose 1. It can be availed of
source of published news through motion 1. It can be done by
6. Voters may not be compelled to disclose 2. Movant has no notice.
whom they voted prior knowledge on 2. Has the knowledge
7. Trade secrets the contents of the contents of the
8. Information contained in tax census returns documents to be documents to be
9. Bank deposits produced produced

Limitations on the remedy of production and

inspection of documents and things 3.12.5. Physical and mental examination of
persons (Rule 28)
Inspection should be limited to those documents
When can the court order it? When mental or
designated with sufficient particularity in the motion
physical condition of a party is in controversy
such that the adverse party can easily identify the
documents he required to procure. Action of the court the action which the action is
pending in its discretion order him to submit to a
Production and Subpoena Duces Tecum physical or mental examination by physician.
inspection of
Requisites for order of examination:
Documents
1. On motion for good cause shown
1. Mode of discovery 1. A writ or process of 2. Upon notice to the party to be examined and
2. Directed against compelling to all other parties
party litigants
 REMEDIAL LAW REVIEWER
3. Shall specify the time, place, manner,
conditions and scope of examination and the
person or persons whom it is to be made.
What are the rules on findings of physician on
examination conducted?
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.
What are the effects of submission to examination
by the party?
By requesting and obtaining a report of the
examination so ordered or by taking the deposition of
the examiner:
1. The party examined waives any privilege he
may have in that action or
2. He also waived any privileged on 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
3.12.6. Consequences of refusal to comply with
modes of discovery (Rule 29)
The determination of the sanction a court should
impose for failure of a party to comply with the
modes of discovery rest on the sound discretion of
the court, taking into account the overriding interest
of justice and the circumstances of each case.
Chapter III Civil Procedure
Consequences in case of refusal to answer any
question?
A party or other deponent refuses to answer any
question upon oral examination the court may: Pg.
53
1. The examination may be completed on other
matters or adjourned as the proponent of
the question may prefer.
2. The proponent may thereafter apply to the
proper court of the place where the
deposition is being taken, for an order to
compel an answer.
3. The same procedure may be availed of when
a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or
25.
Effects if failed to serve answers
1. The court on motion and notice may:
2. Strike out all or any part of the pleading of
that party
3. Dismiss the action or proceeding
4. Enter a judgment by default against that
party
5. In its discretion, order him to pay reasonable
expenses incurred by other, including attys
fees
Judgment by default for failure to file answer to
interrogatories
Before there could be a judgment by default, the
court must first require an application by the
proponent to compel an answer. Sec. 1, Rule 29.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.13. TRIAL (Rule 30) 8. Amicable settlement during mediation

Definition judicial process of investigating and
determining legal controversies, starting with the
production of evidence by the plaintiff and ending
with his closing arguments. Acosta vs People
Nature of Trial
It is adversarial in character, and which requires
presentation of evidence and witnesses before the
court.
Constitutional right to speedy trial, Sec. 16 Art. III
1987 Constitution
It extends to call cases.
before Philippine Mediation Center
9. Amicable settlement during JDR
10. Amicable settlement by virtue of ADR
11. When the parties to any action agree, in Pg.
writing, upon the facts involved in the 54
litigation and submit the case for judgment
based on the facts agreement upon without
introduction of evidence, Sec. 6 Rule 30
NOTE: Plaintiff must rely on the strength of his own
evidence and not upon the weakness of defendants.
Even through evidenced adduced by the plaintiff is
stronger than defendants, the evidence must still be
sufficient to substation his cause of action.

Factors to determine delay: Upon the entry of a case in the trial calendar, the
clerk or court shall
1. Duration of the delay
2. Reason thereof 1. Notify the parties of the date of its trial
3. Assertion of the right or failure to assert it 2. In such manner as shall ensure his receipt of
4. Prejudice caused by such delay that notice at least five (5) days before such
date.

Trial vs Hearing
Hearing is more broader in scope as it include pre-trial
conference, hearing on motion and trial, while trial is
limited only to presentation of evidence and
witnesses before the court.
3.13.1. Adjournments and postponements
The court may adjourn a trial from day to day, and to
any stated time, as the expeditious and convenient
transaction of business may require. Sec. 2, Rule 30.

General rule Trial is necessary to secure a judgment. Limitation -

Exceptions BUT shall have no power to adjourn a trial for a longer

1. Cases falling under Summary Procedure in
Civil cases
2. Parties entered into amicable settlement or
compromise of their claims
3. Dismissal of action on Rule 16
4. Dismissal based on Sec 3, Rule 17
5. Dismissal of action for failure to appear
during pre-trial conference, Rule 18
6. Judgment of pleadings under Rule 34
7. Summary judgment on Rule 35
period than one month for each adjournment nor
more than three months in all except, authorized in
writing by the Court Administrator, Supreme Court.
Postponement is not a matter of right and addressed
to sound discretion of the court. Graces vs Valenzuela
Grounds for postponements:
1. Absence of evidence
2. Illness of a party or counsel
 REMEDIAL LAW REVIEWER
3.13.2. Requisites of motion to postpone trial
a) For absence of evidence
Requisites of motion to postpone trial for absence of
evidence:
1. A motion for postponement shall be filed
2. The motion must be supported by an
affidavit or sworn certification showing the
a. Materiality or relevancy of
evidence
b. That due diligence has been used to
procure it
3. If the adverse party admits the facts given in
evidence the trial shall not be postponed
even if he reserved the right to object to the
admissibility of the evidence.
b) For illness of party or counsel
Requisites of motion to postpone trial for illness of
party or counsel:
1. Motion for postponement must be filed
2. Motion must be supported by an affidavit or
sown certification showing the
a. Presence of the party or counsel at
the trial is indispensable
b. That the character of his illness is
such as to render his non-
attendable excusable.
3.13.3. Agreed statement of facts
The parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon, without
the introduction of evidence.
If the parties agree only on some of the facts in issue,
the trial shall be held as to the disputed facts in such
order as the court shall prescribe.
Chapter III Civil Procedure
3.13.4. Order of trial; reversal of order
The order of trial is as follows: Sec. 5, Rule 30.
Subject to the provisions of section 2 of Rule 31, and
Pg.
unless the court for special reasons otherwise directs,
55
the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows:
a. The plaintiff shall adduce evidence in
support of his complaint;
b. The defendant shall then adduce evidence in
support of his defense, counterclaim, cross-
claim and third-party complaints;
c. The third-party defendant if any, shall
adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
complaint;
d. The fourth-party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them;
e. The parties against whom any counterclaim
or cross-claim has been pleaded, shall
adduce evidence in support of their defense,
in the order to be prescribed by the court;
f. The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
upon their original case; and
g. Upon admission of the 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 third-party defendants, and
so forth, having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence
Reversal of order
In civil cases
If the defendant set-ups an affirmative defense, he
must be the first one to present evidence. Thus, the
regular order of trial will be reversed.
 REMEDIAL LAW REVIEWER
In criminal cases
When the accused admits the act or omission charged
in the complaint or information but interposes a
lawful defense, the order of trial may be
modified.(Criminal cases) Sec. 11, Rule 119.
3.13.5. Consolidation or severance of hearing or
trial (Rule 31)
When actions involving a common question of law or
fact are pending before the court,
1. it may order a joint hearing or trial of any or
all the matters in issue in the actions;
2. it may order all the actions consolidated, and
3. it may make such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or delay. Sec. 1, Rule 31.
3.13.6. Delegation of reception of evidence
Gen Rule The judge of the court shall personally
receive the evidence adduced by the parties. Sec. 9,
Rule 30.
Exception a. in default or b. ex parte hearings, and
c . in case where the parties agreed in writing, the
court may delegate the reception of evidence to its
clerk of court who is member of the bar.
The clerk of court cannot make a ruling on objections.
These objections shall be resolved by the court upon
submission of his report and transcripts within 10
days from the termination of the hearing.
3.13.7. Trial by commissioners (Rule 32)
a) Reference by consent or ordered on motion
By written consent of both parties, the court may
order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties
or to be appointed by the court.
Chapter III Civil Procedure
As used in these Rules, the word "commissioner"
includes a referee, an auditor and an examiner. Sec.
1, Rule 32.
b) Powers of the commissioner
Pg.
56
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference. The order may specify or limit the powers
of the commissioner, and may direct him to report
only upon particular issues, or to do or perform
particular acts, or to receive and report evidence only
and may fix the date for beginning and closing the
hearings and for the filing of his report.
Subject to other specifications and limitations stated
in the order, the commissioner has and shall exercise
the power
1. to regulate the proceedings in every hearing
before him and
2. to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order.
3. He may issue subpoenas and subpoenas
duces tecum,
4. swear witnesses, and
5. unless otherwise provided in the order of
reference, he may rule upon the
admissibility of evidence.
The trial or hearing before him shall proceed in all
respects as it would if held before the court.
c) Commissioners report; notice to parties and
hearing on the report
Report of the commissioner
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.
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. Sec. 9, Rule 32.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Notice to the parties of filing of report 3.14.4. Waiver of right to present evidence

Upon the filing of the report,
1. the parties shall be notified by the clerk, and
2. they shall be allowed ten (10) days within
which to signify grounds of objections to the
findings of the report, if they so desire.
If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have
waived the right to present evidence
Pg.
57
3.14.5. Demurrer to evidence in a civil case
versus demurrer to evidence in a criminal case

Objections to the report based upon grounds which

were available to the parties during the proceedings Demurrer to evidence Demurrer to evidence
before the commissioner, other than objections to in civil case in criminal case
the findings and conclusions therein, set forth, shall
not be considered by the court unless they were 1. A motion for leave 1. May be with or
is not required without leave of
made before the commissioner. Sec. 10, Rule 32.
2. If granted, it is court
Hearing upon report appealable. 2. If granted, not
3. If denied, the appealable
Upon the expiration of the period of ten (10) days defendant may still because it will
referred to in the preceding section, the report shall present evidence. constitute double
be set for hearing, after which the court shall issue an 4. The plaintiff has to jeopardy already.
order adopting, modifying, or rejecting the report in file a motion to 3. If denied, the
whole or in part, or recommitting it with instructions, deny the Demurrer application is with
or requiring the parties to present further evidence to Evidence leave of court, the
before the commissioner or the court. Sec. 11, Rule accused may still
32. present evidence.
If without leave, he
cannot anymore
present evidence.
3.14. DEMURRER TO EVIDENCE (Rule 33) 4. The court can motu
propio deny the
3.14.1. Ground Demurrer to
Evidence
Upon the facts and the law the plaintiff has shown no
right to relief.

When made

After the plaintiff has completed the presentation of

his evidence, the defendant may move for dismissal
under the rule on Demurrer to Evidence.

3.14.2. Effect of denial

If his motion is denied he shall have the right to

present evidence

3.14.3. Effect of grant

The grant will dismiss the complaint.

 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.15. JUDGMENTS AND FINAL ORDERS (Rule pendency of the appeals. The grounds are excess of
36) jurisdiction or grave abuse of discretion.
Judgment is the final ruling by a court of competent Grave abuse of discretion such capricious and
jurisdiction regarding the rights or other matters whimsical exercise of judgment that is equivalent to
submitted to it in action or proceeding. It is Pg.
lack of jurisdiction. 58
synonymous with the term decision.
Order for support pedente lite is an interlocutory
Constitutional basis of valid judgment order.
Sec. 14, Art. II of the Constitution KINDS OF JUDGMENT
No court shall render a decision A2-C4-D4-F-E-M-N-P-S7-V
without stating clearly and distinctly
the facts and the law on which it is 1. Judgment upon compromise
based. 2. Judgment upon confession
3. Judgment upon merits
No petition for review or motion for 4. Clarificatory judgment
reconsideration of a decision of the 5. Judgment nunc pro tunc
court shall be refused due course or 6. Judgment sin perjuico
denied without stating the legal 7. Judgment by default
basis therefore. 8. Judgment on pleadings
9. Summary judgments
Final order is an order issued by the court which
10. Several judgments
disposes of the subject matter in its entirely or
11. Separate
terminates a particular proceeding or action, leaving
12. Special judgments
nothing more to be done except to enforce by
13. Judgment for specific acts
execution what the court has determined, but the
14. Judgment on demurrer to evidence
latter does not completely dispose of the case but
15. Conditional judgment
leave something else to be decided upon.
16. Final judgment
Interlocutory order one that does not finally 17. Final and execotry judgment
dispose of the case and does not end the Courts task 18. Void judgment
of adjudicating the parties content and determining 19. Amended and clarified judgment
their rights and liabilities as regards each other, but 20. Supplemental judgment
obviously indicates that other things remain to be 21. Alternative judgment
done by the court. 22. Deficiency judgment
23. Declaratory judgment
Interlocutory refers to something intervening
between the commencement and the end of the suit
which decides some point or matter but is not a final 1. Judgment upon compromise
decision for the whole controversy.
A judgment based on a compromise
Note the remedy from interlocutory order is not an agreement.
appeal but special civil action of certiorari. The reason
A compromise agreement is a contract
is to avoid multiplicity of appeals in a single action,
whereby the parties , by making reciprocal
which necessarily suspends the hearing and the
concessions avoid a litigation or put an end
decision on the merits of the action during the
to one already commenced.
 REMEDIAL LAW REVIEWER
Requisites
1. Consent of the contracting parties
2. Object certain that is the subject
matter of the contract
3. Cause of the obligation that is
established.
4. The terms and conditions must not
be contrary to law, morals, good
customs, public policy and public
order. Else, it produces no legal
effect at all.
Nature it is immediately final and excutory
and cannot be subject to appeal.
2. Judgment by confession
A judgment made based on the voluntary act
of confession of the defendant himself.
A judgment by confession is not a plea but
an affirmative and voluntary act of the
defendant himself. The court exercises a
certain amount of supervision over the entry
of judgment, as well as equitable jurisdiction
over their subsequent status.
3. Judgment upon merits-
A judgment when it amounts to declaration
of the respective rights and duties of the
parties base done the disclosed facts.
4. Clarificatory Judgment-
A judgment made by the court to remove the
ambiguity of an earlier judgment which is
difficult to execute and comply because of
ambiguity of terms. It is done through a
motion by a party.
5. Judgment nunc pro tunc (now for then)
The office or function of this judgment is to
record some act of the court done at a
former time which was not then carried into
the record, and the power of the court to
make such entries is restricted to placing
Chapter III Civil Procedure
upon the record evidence of judicial action
which has been actually taken.
The court has no power to construe what the
judgment means, but only to enter the
Pg.
record of judgment formerly rendered, but 59
which had not been entered of record as
rendered.
It does not render a new judgment.
6. Judgment sin perjuico
Judgment rendered by the court without
prejudice to the refilling of the case.
7. Judgment by default. ( Sec 3, Rule 9 )
A judgment by default is a judgment
rendered by the court based on the
presentation of the plaintiffs evidenc ex
parte after the defendant has been declared
in default.
A judgment by default is a judgment
rendered against the defendant for his
failure to file an answer.
8. Judgment on pleadings
A judgment based exclusively upon the
allegation appearing in the pleadings of the
parties and annexes, if any, without
consideration of any evidence aliunde.
However, when it appear that all the
materials allegations of the complaint were
admitted in the answer for some of them
were either denied or disputed, and the
defendant has set up certain special
defenses which, if proven, would have effect
of nullifying plaintiffs main cause of action,
judgment on pleadings cannot be rendered.
9. Summary Judgment Rule 35
A procedural device resorted to in order to
avoid long drawn out litigations and useless
delays where the pleadings on the file show
 REMEDIAL LAW REVIEWER
that there are no genuine issues of fact to be
tried.
10. Several Judgment Sec. 4, Rule 36
It is a judgment rendered by the court
whenever proper in an action against several
defendants against one or more of them,
leaving the action to proceed against the
others.
11. Separate Judgment Sec. 5, Rule 36
It is a judgment rendered by the court when
more than one claim for relief is presented
in an action, the court, at any stage, upon a
determination of the issues material to a
particular claim and all counterclaims arising
out of the transaction or occurrence which is
the subject matter of the claim, may render
a separate judgment disposing of such claim.
12. Special judgments Sec. 11, Rule 39
When a judgment requires the performance
of any act other than those mentioned in the
two preceding sections, 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. (9a)
The special judgment in this section is one
which requires the performance of any act
other than the payment of money or the sale
or delivery of real or personal property,
which a party must personally do because
his personal qualifications and
circumstances have been taken into
considered. Refusal to comply is punishable
by contempt.
13. Judgment for specified acts, Sec. 10 Rule 39
Chapter III Civil Procedure
It directs a party to execute conveyance of
land, or to deliver deeds or other documents
or to perform any other specific acts in
connection there with but which acts can be
performed by persons other than the said Pg.
party. 60
14. Judgment on demurrer to evidence, Rule 33
It is a judgment rendered by the court on the
ground of insufficiency of evidence after the
plaintiff has rested its case. The nature is like
motion to dismiss.
15. Conditional judgment
Where the judgment is indefinite, or
requires the performance of a condition, the
court must first determine whether or not
the condition imposed therein had been
complied with before it could issue writ of
execution.
16. Final judgment Sec. 47 Rule 39
Once a judgment becomes final and
executory, all the issues between the parties
are deemed resolved and laid to rest.
The prevailing party is entitled to a writ of
execution, the issuance of which is the trial
courts ministerial duty.
17. Final and executor judgment
A final and executor judgment is one
rendered by the court when there is no
motion for reconsideration or appeal is filed,
or the same has already been denied with
finality.
What is the remedy? Petition for relief form
final order under Rule 38 on the ground of
extrinsinc fraud and error or jurisdiction.
18. Void judgment
A judgment is null and void when the court
which rendered it had no power to grant the
 REMEDIAL LAW REVIEWER
relief or no jurisdiction over the subject
matter or over the parties or both.
Effects of void judgment it is a not a
decision in contemplation of law and hence,
can never be executor.
19. Amended and clarified judgment
A judgment in which the lower 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.
The amended and clarified decision is an
entirely new decision which supersedes the
original decision.
20. Supplemental judgment
A kind of judgment which serves to bolster
or adds something to the primary decision.
Amended judgment vs Supplemental
judgment
21. Alternative judgment
Rule when the dispositive part of a final
order of decision is definite, clear and
unequivocal and can be wholly given effect
without need of interpretation or
construction, the same is considered as the
judgment of the court, to the exclusion of
anything said in the body thereof.
22. Deficiency judgment
A contingent claim and must be filed with
probate court where the settlement of the
estate of the deceased mortgagor is
pending, within the period of time fixed for
the filling of claims.
23. Declaratory judgment
Where the petition for declaratory judgment
is coupled with a prayer for issuance of
Chapter III Civil Procedure
injunction, the same is equivalent to an
action for prohibition against public officers.
Pg.
3.15.1. Judgment without trial 61
The same can be had in Summary Judgments.
Sec. 1, of Rule 35 provides that a party seeking to
recover upon a claim, counterclaim, or cross-claim or
to obtain a declaratory relief may, at any time after
the pleading in answer thereto has been served,
move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon
all or any part thereof.
In small claims and summary proceedings, the
judgment can be had even without trial.
Judgment can be also attained in case of settlement
of a case.
3.15.2. Contents of a judgment
The judgment or order determining the merits of the
case must be:
1. In writing
2. Directly and personally prepared by the
judge
3. Stating clearly and distinctly the facts and
the law on which it is based
4. Signed by him
5. Filed with the clerk of court
The filing of judgment or order with clerk of court
constitutes rendition of judgment.
Two essential parts of a decision:
1. Body this is where the facts and the law on
which it is based are stated.
2. Decetal portion the controlling part.
The omission of either makes the judgment in
violative of rules of court and constitution.
 REMEDIAL LAW REVIEWER
Findings of facts Statement of fact, not to the
conclusions of law. The decision should not only state
the ultimate facts but also should specify the
supporting evidentiary facts.
Findings of facts and law are important part of due
process.
Effects of lack of jurisdiction on the judgment it is
null and void and may be attacked anytime. It creates
no rights and produces no effects.
3.15.3. Judgment on the pleadings
Grounds for judgments on the pleadings
1. Where an answer fails to tender an issue
2. Admits the material allegations of the
adverse party's pleading,.
The court may; on motion of that party, direct
judgment on such pleading.
Where there can be no Judgment on the Pleadings
However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be
proved
3.15.4. Summary judgments (Rule 35)
Summary judgment A procedural device resorted
to in order to avoid long drawn out litigatins and
useless delays where the pleadings on the file show
that there are no genuine issues of fact to be tried.
Genuine issue is such issue of fact which require
presentation of evidence as distinguished from sham,
fictitious, contrived or false claim.
Even the pleading raised an issue but the affidavits
show that it has no genuine issue, a summary
judgment is available.
a) For the claimant
When the claimant may move for summary
judgment? After the pleading in answer to the
Chapter III Civil Procedure
claim, counter-claim, cross claim, and declaratory
relief has been served.
The claimant may either seeking to recover:
Pg.
a) A claim 62
b) Counterclaim
c) Cross-claim
d) To obtain declaratory relief
The motion must be supported with affidavits,
depositions or admissions for summary judgment.
b) For the defendant
A defendant against whom the claims are asserted
may any time move for summary judgment.
Requirements for summary judgment-
a) Motion shall be served at least 10 days
before the time specified for the hearing
b) The adverse party may serve opposing
affidavits, deposition or admissions at least
3 days before the hearing.
c) After the hearing, the judgment sought shall
be rendered forthwith if the pleadings,
supporting affidavits, depositions on file,
show that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.
Except as to the amount of damages.
c) When the case not fully adjudicated
If the judgment cannot be rendered on the whole
case the court shall
1. Ascertain what material facts exist without
substantial controversy and what are
actually and in good faith controverted
2. It shall thereupon make an order specifying
the facts that appear without substantial
controversy, including the extent to which
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

the amount of damages or other relief is not 3.15.5. Judgment on the pleadings versus
in controversy summary judgments
3. Directing such further proceedings in the
action as are just.
Judgment on the Summary Judgments
4. The facts so specified shall be deemed pleadings Pg.
established, and the trial shall be conducted 63
on the controverted facts accordingly.
1. The answer does 1. There is an issue
not tender an issue tendered in the
2. Basis is the answer, but it is not
d) Affidavits and attachments
pleadings alone genuine or real
3. Three days notice issue.
Supporting and opposing affidavits shall be made on:
of hearing 2. The basis are
4. Entire case is pleadings,
a) Personal knowledge
terminated affidavits,
b) Shall set forth facts as would be admissible 5. Only the plaintiff or depositions and
in evidence the defendants as admissions
c) Show affirmatively that the affiant is far as the 3. Ten days notice
competent to testify as to the matters stated counterclaim, rule
therein cross-claim or 4. May be terminated
d) Certified true copies of all papers or parts third-party partially
thereof referred to in the affidavits shall be complaint is 5. Either plaintiff or
attached thereto or served therewith. concerned can file defendant may file
the same the same
6. If filed by the 6. After filing of an
Rule in affidavits in bad faith plaintiff, the same answer by the
must be made after adverse party
This speaks of: the pleading in
answer to the
a) Affidavits in bad faith claim, counter-
b) Solely for the purpose of delay claim, cross claim,
and declaratory
relief has been
served. If by the
In which case, the court then shall:
defendant, it may
be filed any time
Order the offending party or counsel to pay to the
other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur
including attorney's fees, 3.15.6. Rendition of judgments and final orders

It may, after hearing further adjudge the offending Rendition of judgment is the filing of the same with
party or counsel guilty of contempt. the clerk of court.

A judgment or final order determining the merits of

the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by
 REMEDIAL LAW REVIEWER
him, and filed with the clerk of the court. Sec. 1, Rule
36.
3.15.7. Entry of judgment and final order (Rule
36)
When the entry can be done?
If no appeal or motion for new trial or reconsideration
is filed within the time provided in the rules.
The date of finality of judgment is the date of its entry.
It shall contain the dispositive part of the judgment,
signed by the clerk with a certificate the judgment has
become final and executory.
A summary judgment that satisfies the requirements
of final orders shall be considered as res judicata also.
An order or judgment is deemed final when it finally
disposes of pending action, so that nothing more can
be done with it in the trial court.
Immutability of judgment
A decision that has acquired its finality becomes
immutable and unalterable and may no longer be
modified in any respect, even is the modification is
meant to correct erroneous conclusions of fact or law
and whether it will be made by the court that
rendered it or by the highest court of the land.
3.16. POST JUDGMENT REMEDIES
3.16.1. Motion for new trial or reconsideration (Rule
36)
Motion for new trial it is a complete retrial of the
case after judgment has been rendered based on the
grounds specified in the sec. 1, Rule 37.
It is an application for relief requesting that the judge
set aside the judgment and order a new trial on the
basis that the trial was improper or unfair due to the
specified errors occurred.
Chapter III Civil Procedure
Cosntitutional basis
Sec. 14, Art. II of the Constitution
No court shall render a decision
Pg.
without stating clearly and distinctly 64
the facts and the law on which it is
based.
No petition for review or motion for
reconsideration of a decision of the
court shall be refused due course or
denied without stating the legal basis
therefore.
Purpose of motion for reconsideration is to point
out the findings and conclusions of the decision
which, in the movants view, are not supposed by law
or evidence. The movant is therefore, confined to the
amplification or further discussion of the same issue
already passed upon by the court.
Right of the defendant to file motion for new trial or
reconsideration
The parties may not deprive each other the right to
file a motion for reconsideration or move for a new
trial or an execution pending appeal by immediate
filing a notice of appeal.
a) Grounds
Grounds for Motion for New Trial
a) FAME, which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has been probably
impaired in his rights.
b) Newly discovered evidence, which he could
not, within reasonable diligence have
discovered and produced at the trial, and if
presented, would probably alter the result.
 REMEDIAL LAW REVIEWER
Newly discovered evidence
These must not be raised for the first time on appeal.
Under the rules of court, the requisites of newly
discovered evidence are:
1. The evidence was discovered after trial
2. Such evidence could not have been
discovered and produced at the trial with
reasonable diligence
3. It is material, and not merely cumulative,
corroborative or impeaching, and is of such
weight that, if admitted, will probably
change the judgment.
Extrinsic fraud refers to any fraudulent act of the
prevailing party in litigation which is committed
outside the trial of the case, whereby the
unsuccessful party has been prevented from
exhibiting fully his case.
Accident It is an event that takes place without
ones foresight or expectation. An event hat
proceeded from an unknown cause; or is unusual
effect of a known cause and therefore, not expected.
Mistake An error in action, a blunder. An incorrect
belief held by some concerned about a fact involved
in a transaction or a proceeding, or an incorrect
opinion about the law which governs the transactions
and proceedings.
Rule Client is bound by the counsels mistake.
Exception where the lawyers gross negligence
would result in grave injustice of depriving his client
due process of law.
Excusable negligence A negligence is excusable
where it is caused by failure to receive notice of the
action or trial, by a genuine and excusable mistake or
miscalculation, by reliance upon assurance given by
those upon whom the party had a right to depend, as
the adverse party or counsel retained in the case, or
a competent adviser, that would necessary for him to
take an active part in the case.
Chapter III Civil Procedure
Affidavit of merit a sworn statement which states
the nature of character of FAME on which the motion
for new trial is based, or the facts constituting the
movants good and substantial defense for valid
causes of action. Pg.
65
Grounds for Motion for Reconsideration-
a) Damages awarded are excessive
b) The evidence is insufficient to justify the
decision or final order
c) The decision or final order is contrary to law
b) When to file
Motion for new trial - Within the period for taking an
appeal.
Motion for reconsideration Within the same period
An appeal is being taken by filing a notice of appeal
and it is perfected upon the expiration of the last day
of the period to appeal by any party.
In cases where a record on appeal is required, appeal
is taken by filing a notice of appeal and the record on
appeal and the appeal is perfected upon approval of
the record on appeal.
Motion for extension of time to file motion for
reconsideration does not toll the period to appeal,
The extension if proper is the procedural infirmity was
not entirely attributable to the fault or negligence of
the petitioner.
c) Denial of the motion; effect
A decision is final and executory after 15 days of
receipt of denial of first MR.
Exception: If a motion for leave to file and admit a
second motion for reconsideration is granted, the 2 nd
MR is not anymore prohibited.
d) Grant of the motion; effect
Effect of granting of motion for new trial
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

1. Original judgment or final order shall be

Rule 37 (MR) Rule 52 ( MR)
vacated
2. The action shall stand for trial de novo;
3. The recorded evidence taken upon the a) Available only a) Available only
former trial, insofar as the same is material in the trial in appellate Pg.
and competent to establish the issues, shall courts, RTC, courts, CA 66
be used at the new trial without retaking the MTC, MCTTC b) Does not
same. b) Provides provide for
ground for specific
excessive grounds
e) Remedy when motion is denied, fresh 15-day damages, c) Shall be
period rule evidence is resolved within
insufficient to 90 days when
An order denying a motion for new trial or justify the the court
reconsideration is not appealable, the remedy being decision, or declares it
an appeal from the judgment or final order
decision is submitted for
Neypes or Fresh Period Rule contrary to resolution
law
From the case of Domingo Neypes vs Court of c) Shall be
Appeals To standardize the appeal period provided resolved
in the Rules and to afford litigants fair opportunity to within 30 days
appeal their cases, the Court has deemed it practical from the date
to allow a fresh period of 15 days within which to file it was
the notice of appeal to be counted from receipt of the submitted for
order denying the motion for new trial, motion for resolution
reconsideration whether full or partial, or any final
order or resolution.

3.16.2. Appeals

Rule 37 (New Trial) Rule 53 ( New Trial ) In general

a) Available only in a) Available only in
the trial courts, appellate courts, CA
RTC, MTC, MCTTC b) Grounded only on
b) Provides ground newly discovered
for FAME evidence
c) Shall be resolved c) Shall be resolved
within 30 days within 90 days
from the date it when the court
was submitted for declares it
resolution submitted for
resolution
The right to appeal is not part of due process but a
mere statutory privilege that has to be exercised only
in the manner and in accordance with the provisions
of law
Final Order Interlocutory Order
Disposes of the subject Does not completely
matter in its entirely or disposes of the case but
terminates a particular leaves something to be
proceeding or action, decided upon
leaving nothing more
to be done except to Deals with preliminary
enforce by execution matters and the trial on
the merits is yet to be
 REMEDIAL LAW REVIEWER
what the court has held and the judgment
determined rendered.
Certain rules on appeal
a) There can be no trial de novo anymore. The
appellate courts must decide on the basis of
the record, except when the proceedings
where not duly recorded
b) There can be no new parties
c) There can be no change of theory
d) there can be no new matters
e) There can be amendments of pleadings to
conform to the evidence before the trial
court
f) The liability of solidarity defendant who did
not appeal is not affected by the appeal by
solidarity debtor
g) Appeal by the guarantor does not inure to
the principal
h) RTC cannot award to the appellant on his
counterclaim more than the amount of
damages beyond the jurisdiction of the MTC.
i) Appellate court cannot dismiss the appealed
case for failure to prosecute because the
case must be based on records
a) Judgments and final orders subject to appeal
Appeal may only be taken from judgments or final
orders that completely dispose of a case.
b) Matters not appealable
1. Order denying motion for new trial or
reconsideration
2. Order denying a petition for relief and any
similar motion seeking relief from judgment
3. An interlocutory order
4. Order disallowing or dismissing an appeal
5. An order denying a motion to set aside
judgment by consent, confession or
compromise, on the ground of fraud,
mistake, duress, or any other ground
6. An order of execution
7. A judgment or final order for or against one
or more several parties or in separate claims,
Chapter III Civil Procedure
counterclaims, cross-claims and third party
complaints, while the main case is pending,
unless the court allows an appeal therefrom
8. An order dismissing an action without
prejudice
Pg.
67
c) Remedy against judgments and orders which are
not appealable
In any of the foregoing circumstances, the aggrieved
party may file an appropriate civil action as provided
in Rule 65.
Rationale of non-appealable character of
interlocutory order - allowing appeals from
interlocutory orders would result in the sorry
spectacle of a case being subject of
counterproductive ping pong to and from appellate
court as often as trial court is perceived to have made
an error in any of its interlocutory rulings.
d) Modes of appeal
The three modes of appeal-
1. Ordinary appeal. The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the
judgment or final order appealed from and
serving a copy thereof upon the adverse
party. No record on appeal shall be required
except in special proceedings and other
cases of multiple or separate appeals where
law on these Rules so require. In such cases,
the record on appeal shall be filed and
served in like manner.
2. Petition for review. 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 in accordance with Rule 42.
3. Appeal by certiorari / petition for review on
certiorari. In all cases where only
questions of law are raised or involved, the
appeal shall be to the Supreme Court by
petition for review on certiorari in
accordance with the Rule 45.
 REMEDIAL LAW REVIEWER
e) Issues to 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 or 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 Sec. 15, Rule 44.
1) In an Ordinary Appeal, the appeal raises the
questions of fact or mixed questions of fact and law.
2) In Petition for Review, the appeal raises questions
of fact, of law or mixed questions of fact and law.
3) In a Petition for Review on Certiorari, the appeal
raises purely questions of law.
Mixed question of law and of facts; purely question
of law remedy
Where a litigant files an appeal raises only questions
of law with the CA, CA should dismiss the appeal
outright as the appeal is not reviewable by that court.
Question of fact exists when the doubt centers on the
truth or falsity of alleged facts while question of law
exists if the doubt centers on what the law is on a
certain set of facts.
Where the Supreme Court can act upon questions of
fact
The exception applies only in the presence of
extremely meritorious circumstances like:
1. When the inference made is manifestly
mistaken, absurd or impossible.
2. When there is a grave abuse of discretion
3. When the findings are grounded entirely on
speculations, surmises or conjectures.
4. When the judgment of the Ca is based on
misapprehension of facts
5. When eh findings of fact of the lower courts
are conflicting
6. When the CA, in making its findings, went
beyond the issues of the case and the same
is contrary to the admissions of both
appellant and appellee.
Chapter III Civil Procedure
7. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
8. When the CA manifestly overlooked certain
relevant facts not disputed by the parties Pg.
and which, if properly considered, would 68
justify a different conclusion,
9. Went eh findings of fact of the CA are
premised on the absence of evidence and
are contradicted by evidence on record.
10. When the findings are contrary to those of
trial court.
11. Adverse decision in a petition for writ of
amparo;
12. Adverse decision in a petition for writ of
habeas corpus;
13. Adverse judgment in a writ of kalikasan;
f) Period of appeal
What is the period of taking an appeal-
1. 15 days after the notice to the appellant of
the judgment or final order appealed from;
or
2. Where a record on appeal is required, the
appellant shall file a notice of appeal and
record on appeal within 30 days after the
notice of judgment or final order
The effect of filing MR on period to appeal-
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration.
Limitation - No motion for extension of time to file a
motion for new trial or reconsideration shall be
allowed. (n)
Exception for suspension of period to appeal in filing
MR-
1. To serve substantial justice Habaluyas
Enterprises vs Japson
2. When the procedural infirmity was not
entirely attributable to the fault or
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

negligence of the petitioner Barnes vs

Padilla

g) Perfection of appeal Pg.

69
Appeal is deemed perfected when:

1. A partys appeal by notice of appeal is

deemed perfected as to him upon filing of
the notice of appeal in due time
2. A partys appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the
approval of the record on appeal filed in due
time.

Effect of perfection of appeal-

In appeals by notice of appeal, the court loses

jurisdiction over the case upon the perfection of
appeals filed in due time and the expiration of time to
appeal of the other parties

What are the residual powers of the court?

Prior to the transmittal of the original record of the

record on appeal, the court may issue:

1. Orders for protection and preservation of

the rights of the parties which do not involve
any matter litigated by appeal;
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal in
accordance with Sec. 2 of Rule 39.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Table of Appeals

Rule 40 Rule 41 Rule 42 Rule 43 Rule 45

APPEAL FROM APPEAL FROM THE PETITION FOR APPEALS FROM THE APPEAL BY Pg.
METROPOLITAN / REGIONAL TRIAL REVIEW WITH COURT OF TAX CERTIORARI TO THE 70
MUNICIPAL TRIAL COURTS TO THE COURT OF APPEALS APPEALS AND SUPREME COURT
COURTS TO THE COURT OF APPEALS (RTC in exercise of QUASI-JUDICIAL
REGIONAL TRIAL COURT (RTC in exercise of Appellate AGENCIES TO THE
original jurisdiction Jurisdiction to CA) COURT OF APPEALS
to CA)

When to 15 days for Notice of 15 days for Notice of 15 days from notice 15 days d from notice 15 days from notice
Appeal Appeal / 30 days for Appeal / 30 days for of the decision, may of the award, of judgment or final
Record on Appeal Record on Appeal be extended for 15 judgment, final order order or resolution
days. or resolution, or from appealed from, may
the date of its last be extended for 30
publication, if days.
publication is
required by law for
its effectivity, maybe
extended for 15
days.

How to Notice of Appeal / Notice of Appeal / Verified Petition for Verified Petition for Verified Petition for
Appeal Record on Appeals Record on Appeals Review Review Review
(required in special (required in special
proceedings and multiple proceedings and
appeals ) multiple appeals )

Certification Not required Not required Required Required Required

against non-
forum
shopping

Issues Questions of fact, of law, Questions of fact, of Questions of fact, of Questions of fact, of General rule,
or mixed questions of law, or mixed law, or mixed law, or mixed questions of law.
fact and law questions of fact and questions of fact questions of fact and
law and law law.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Quasi-judicial power defined the term which
applies to the discretion, etc., of public administrative
officers or bodies, who are required to investigate
facts, or ascertain the existence of facts, holding
hearings, and draw conclusions from them, as a basis
for their official function and to exercise discretion of
judicial nature.
Decision of the Ombudsman in administrative cases
is reviewable by the CA under Rule 43.
Findings of facts of the Ombudsman in administrative
cases are accorded with respect and finality.
Decision of Department of Agrarian Reform is
reviewable under Rule 43.
depriving the litigants the privilege of review
by an appellate tribunal. Hence, the CA has
still authority to review decisions of the NLR
but not on Rule 43, but through petition for
certiorari under Rule 65 a remedy wherein Pg.
the SC exercises concurrent jurisdiction with 71
CA.
Petition for Review on Certiorari (Rule 45)
Article VIII, Sec. 5, (2) Review, revise, reverse, modify,
or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and
orders of lower courts in:

Sec. 61 of RA No. 6657 clearly mandates that judicial a) All cases in which the constitutionality or
review of DAR Secretary decisions, orders or validity of any treaty, international or
resolutions are governed by rule 43 of ROC. executive agreement, law, presidential
decree, proclamation, order, instruction,
Excluded quasi-judicial bodies under the coverage of ordinance, or regulation is in question.
the rules b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
1. Court of Tax Appeals It must be noted
imposed in relation thereto.
however, that by virtue of AM No 05-11-07-
c) All cases in which the jurisdiction of any
CTA 2005 of RA 9282 or Revised Rules of
lower court is in issue.
Court of Appeals, as amended, Sec. 1 Rule 16
d) All criminal cases in which the penalty
thereof, a party adversely affected by a
imposed is reclusion perpetua or higher.
decision of the CTA en banc may appeal
e) All cases in which only an error or question
therefrom by filing with SC a verified petition
of law is involved.
for review on certiorari under Rule 45.
2. Central Board of Assessment Appeals Sec
2(e), Rule 4 of Revised Rules of CTA, the CTA
Rule 45 Rule 65
en banc will also exercise exclusive appellate
jurisdiction over cases involving the a) Petition is based on a. The petition raises
assessment and taxation of real property questions of law the issue whether
which the or not the lower
originally decided by the provincial or city
appellant desires court acted
board of assessment of appeals. the court to resolve without or in
3. Labor Cases with NLRC the procedure in b) It is a mode of excess of
labor cases enunciated by the Court in case appeal involving jurisdiction or gave
of St. Martin Funeral Home vs NLRC has the review of abuse of
remained to be prevailing rule and authority judgment, award jurisdiction
governing judicial review of decisions and or final order on b. Directed against
the merits the interlocutory
interlocutory orders of the NLRC. The
c) It is a mode of order of the court
peculiar decision has reached the court appeal which prior to appeal
solely for the purpose of drastically centers on the form judgment or
reducing the workload of the SC without review on the where there is no
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

merits of final appeal or any other A judgment, resolution or final order of the COMELEC
order of the lower plain, speedy and may be brought by the aggrieved party to the SC on
court involving adequate remedy certiorari under Rule 65 in relation to Rule 64, by filing
pure questions of c. Is an original action
the petition within 30 days from notice.
law that dwells on the
d) Must be made jurisdictional errors Pg.
Review of Judgment or Final Orders from Civil 72
within the of whether the
Service Commission
reglementary lower court acted
period for appeal without or in
A judgment, final order or resolution of the Civil
or within 15 days excess of its
Service Commission may be taken to the CA under
from the receipt of jurisdiction or with
Rule 43. Note the difference between the mode of
the assailed grave abuse of
appeal from a judgment of the CSC and the mode of
judgment jurisdiction
appeal from the judgments of other constitutional
e) Stays thed. May be filed not
commissions.
judgment, award, later than 60 days
or order appealed from the notice of
Review of Judgment or Final Orders from Civil
from judgment, order or
f) Petition and resolution sought Service Commission
respondent are the to be assailed
original parties to e. Unless a writ of A judgment, resolution or final order of the
the action, and the preliminary Commission on Audit may be brought by the
lower court or injunction or aggrieved party to the SC on certiorari under Rule 65
quasi-judicial temporary in relation to Rule 64, by filing the petition within 30
agency is not restraining order days from notice.
impleaded shall have been
g) Prior filing of issued, does not 3.16.3. Relief from judgments, orders and other
motion for stay the challenged proceedings (Rule 38)
reconsideration is proceeding
not required f. The parties are the Petition for relief a legal remedy whereby a party
h) The appellate court aggrieved party seeks to set aside a judgment rendered against him
is in the exercise of against the lower by a court whenever he was unjustly deprived of
its appellate court or quasi- hearing or was prevented from taking an appeal
jurisdiction and the judicial agency and because of FAME.
power of review the prevailing
parties Requirements-
g. Motion for
reconsideration is 1. Verified,
required as a
2. Filed within sixty (60) days after the
general rule.
h. The higher court petitioner learns of the judgment, final
exercises original order, or other proceeding to be set aside,
jurisdiction under and not more than six (6) months after such
its power of control judgment or final order was entered, or such
and supervision proceeding was taken
over the 3. Must be accompanied with affidavits
proceedings of the
showing the fraud, accident, mistake, or
lower court
Appeal from Constitutional Bodies excusable negligence relied upon (Affidavit
of merit)
Review of Judgment or Final Orders from COMELEC 4. State the facts constituting the petitioner's
good and substantial cause of action or
 REMEDIAL LAW REVIEWER
defense, as the case may be. (Affidavit of
merit)
a) Grounds for availing of the remedy
Final and executory decision can only be annulled by
a petition to annul the same on the ground of
extrinsic fraud lack or jurisdiction, or by a petition for
relief from a final order of judgment under the Rule
38.
b) Time to file petition
The petition for relief shall be filed within sixty (60)
days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and not
more than six (6) months after such judgment or final
order was entered, or such proceeding was taken
c) Contents of petition
1. Must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon (Affidavit
of merit)
2. State the facts constituting the petitioner's
good and substantial cause of action or
defense, as the case may be. (Affidavit of
merit)
If the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall-
1. Shall issue an order requiring the adverse
parties to answer the same within fifteen
(15) days from the receipt thereof.
2. The order shall be served in such manner as
the court may direct, together with copies
of the petition and the accompanying
affidavits.
Chapter III Civil Procedure
Inunction is allowed
Injunction is allowed, but there must be a bond in
favor of the adverse party conditioned that if the
petition is dismissed or the petitioner fails on the trial
Pg.
of the case upon its merits, he will pay the adverse 73
party all damages and costs that may be awarded to
him by reason of the issuance of such injunction or
the other proceedings following the petition
BUT, such injunction shall not operate to discharge or
extinguish any lien which the adverse party may have
acquired upon, the property, of the petitioner
3.16.4. Annulment of judgments or final orders
and resolutions (Rule 47)
a) Grounds for annulment
The annulment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion
for new trial or petition for relief.
b) Period to file action
If based on extrinsic fraud, the action must be filed
within four (4) years from its discovery; and if based
on lack of jurisdiction, before it is barred by laches or
estoppe
c) Effects of judgment of annulment
A judgment of annulment shall set aside the
questioned judgment or final order or resolution and
render the same null and void, without prejudice to
the original action being refiled in the proper court.
However, where the judgment or final order or
resolution is set aside on the ground of extrinsic
fraud, the court may on motion order the trial court
to try the case as if a timely motion for new trial had
been granted therein.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3.16.5. Collateral attack of judgments 3.17.2. When execution shall issue

A collateral attack is an attack on the judgment is Execution shall issue as:

made as an incident in said action.
a. A matter of right, Pg.
This is proper only when the judgment, on its face, is
b. Or motion, 74
null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction.
When to appeal
Examples:
Upon a judgment or order that disposes of the action
1. A petition for certiorari under Rule 65 is a or proceeding upon the expiration of the period to
direct attack. It is filed primarily to have an appeal therefrom if no appeal has been duly
order annulled. perfected
2. An action for annulment of a judgment is
likewise a direct attack on a judgment. If the appeal has been duly perfected and finally
3. A motion to dismiss a complaint for resolved:
collection of a sum of money filed by a
corporation against the defendant on the
The execution may forthwith be applied for
ground that the plaintiff has no legal
capacity to use is a collateral attack on the in the court of origin,
corporation. A motion to dismiss is
incidental to the main action for sum of a. On motion of the judgment obligee,
money. It is not filed as an action intended to b. Submitting therewith certified true copies of
attack the legal existence of the plaintiff. the judgment or judgments or final order or
orders sought to be enforced and of the entry
thereof,
c. With notice to the adverse party.
3.17. EXECUTION, SATISFACTION, AND
EFFECT OF JUDGMENT (Rule 39)
The appellate court may:
Execution Remedy afforded by law for the
a. On motion in the same case, when the
enforcement of a judgment. Its object is to obtain
interest of justice so requires,
satisfaction of the judgment on which the writ is
b. Direct the court of origin to issue the writ of
issued. It issues by order of a court a quo, on motion
execution. (n)
of the judgment oblige, upon finality or order sought
to be enforced.
General rule Execution as a matter of right,
requisites-
3.17.1. Difference between finality of judgment
for purposes of appeal; for purposes of
execution 1. It will be a matter or right only when,
2. The judgment has become final and
For purposes of appeal, an order is final if it disposes executor,
of the action as opposed to an interlocutory order
3. When the judgment debtor has renounced
which leaves something to be done in the trial court
or waived his right of appeal
with respect to the merits of the case.
4. When the period for appeal has lapsed with
For purposes of execution, an order is final or an appeal having been filed, the appeal
executory after the lapse of the reglementary period
to appeal and no such appeal has been perfected.
 REMEDIAL LAW REVIEWER
resolved and the records to the case have
been returned to the court of origin.
Exception to the general rule- Execution pending
appeal on the existence of good reasons. Good
reasons are compelling circumstances that justify the
immediate execution lest the judgment becomes
illusory.
Effect of finality the winning party has the
correlative right to enjoy the finality of the resolution
of his case by the execution and satisfaction of
judgment which is the life of the law.
As a rule, once the judgment has become final and
executor, the court cannot refuse to issue a writ of
execution, except:
1. When the subsequent facts and
circumstances transpire which render the
execution unjust and impossible
2. On equitable grounds, as when there has
been a change in the situation of parties
which makes the execution equitable
3. Where the judgment has been novated by
the parties
4. When a petition for relief or an action to
enjoin the judgment is filed and a
preliminary injunction I sprayed for and
granted
5. Where the judgment has become dormant,
the 5 year period under Sec. 6 of this rule
having been expired with judgment being
revived.
6. Where the judgment turns out to be
incomplete.
Motion for execution need not be served on the
defeated party; granting of writ of execution is a
matter of right not a violation of due process.
Issuance of writ of execution is trial courts
ministerial duty once decision is final
Chapter III Civil Procedure
Mandamus is available in case of execution of final
and executory judgment. Valenzuela vs Court of
Appeals 1993, 226 SCRA 306
The remedy for issuance of order of execution is Pg.
Certiorari under Rule 65, Sec. 1 75
Execution of a judgment or final order pending
appeal:
a. On motion of the prevailing party
b. With notice to the adverse party filed in the
trial court
c. 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:
a. Upon good reasons
b. To be stated in a special order after due
hearing.
Execution of several, separate or partial judgments:
a. A several,
b. Separate or
c. Partial judgment
May be executed under the same terms and
conditions as execution of a judgment or
final order pending appeal.
 REMEDIAL LAW REVIEWER
Execution pending appeal is a matter of discretion
When an appeal had been duly perfected, execution
of the judgment, whether wholly or partially, was not
a matter or right, but discretion provided good
reasons therefor existed. Associated Anglo-American
Tobacco Corporation vs CA, April 23, 2010
Good Reasons, meaning compelling circumstances
that justify immediate execution lest the judgment
becomes illusory.
Requisites for execution pending appeal-
1. There must be a motion by the prevailing
party
2. There must be good reasons for issuing the
writ of execution
3. Good reasons must be stated in special
order. Maceda, Jr vs DBP, 313 SCRA 233
Execution pending appeal is not applicable in a land
registration proceeding. Top Management Programs
Corporation vs Luis Fajardo, June 15, 2011
Residual power of the Court of Appeals, execution
pending appeal under Rule 42
Rule 42 of the Rules of Court governs the appeal of a
decision of the RTC rendered in the exercise if its
appellate jurisdiction; the appeal is made by filing a
petition for review with the CA.
Despite the filing of a petition with CA, however, Rule
42 grants the RTC residual jurisdiction to order
execution pending appeal, so long as:
1. The CA has not yet given due course to the
petition
2. The requirements of Sec. 2, Rule 39 are
observed. ALPA-PCM Inc, vs Vincent
Bulasao, March 19, 2012
Posting of a bond to answer for damage is not alone
a sufficient reason, otherwise execution pending
Chapter III Civil Procedure
appeal could be obtained through the mere filing of
such bond.
3.17.3. How a judgment is executed
Pg.
a) Execution by motion or by independent action 76
A final and executory judgment or order may be
executed:
a. On motion within five (5) years from the date
of its entry.
b. By action, after the lapse of such time, and
before it is barred by the statute of
limitations,
The revived judgment may also be enforced:
a. By motion within five (5) years from the date
of its entry
b. By action before it is barred by the statute of
limitations.
Once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of
right by mere motion within five years from the date
of entry of judgment. If the prevailing party fails to
have the decision enforced by a motion after the
lapse of five years, the said judgment is reduced to a
right of action which must be enforced by the
institution of a complaint in regular court within ten
years from the time the judgment becomes final.
Instances of execution by motion after five years;
Excluded period in computing the time for execution
The court held that in computing the time limit for
enforcing a final judgment, the general rule is that
there should not be included the time when the
execution is stayed, either by agreement of the
parties for a definite time, by injunction, by taking of
an appeal or writ of error so as to operate as
supersedeas, by death of the party or otherwise.
Any interruption or delay occasioned by the debtor
will extend the time within which the writ may be
 REMEDIAL LAW REVIEWER
issued without scire facias. Thus, the time during
which the execution is stayed should be excluded,
and the said time will be extended by any delay
occasioned by the debtor.
The five year period of execution may be extended
Where the delay is through no fault of the prevailing
party but due to the delay caused or occasioned by
actions of the judgment obligor for his benefit or
advantage. Camacho vs CA, 287 SCRA 311, 1998
Nature of action for revival of judgment
Action for revival of judgment is a new and
independent action, different and distinct from either
recovery of the property case or reconstitution case,
wherein the cause of action is the decision itself and
not the merits of the action upon which judgment is
sought to be enforced.
Execution by motion or independent action is not
applicable in a petition for writ of possession
The rule on execution by motion or by independent
action under Sec. 6 Rule 39 applies only to civil actions
and not to special proceedings such as an ex parte
petition for the issuance of writ of possession as it is
not the nature of civil action. Sps. Topacio vs Banco
Filipino Savings and Mortage Bank, Nov. 17, 2010
b) Issuance and contents of a writ of execution
The writ of execution shall:
a. Issue in the name of the Republic of the
Philippines from the court which granted the
motion;
b. State the name of the court, the case
number and title, the dispositive part of the
subject judgment or order; and
c. Require the sheriff or other proper officer to
whom it is directed to enforce the writ
according to its terms, in the manner
hereinafter provided:
Chapter III Civil Procedure
c) Execution of judgments for money
Immediate payment on demand.
The officer shall enforce an execution of a judgment Pg.
for money by: 77
Demanding 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-
a. Pay in cash,
b. Certified bank check payable to the
judgment obligee,
c. Or any other form of payment acceptable to
the latter,
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.
a. 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
b. if the same is not practicable,
deposit said amounts to a fiduciary
 REMEDIAL LAW REVIEWER
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:
a. 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.
Satisfaction by levy.
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,
a. Of for value and
b. Not otherwise exempt from
execution
Giving the latter the option to immediately
choose which 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
Chapter III Civil Procedure
a. Personal properties, if any, and
then on the
b. Real properties if the personal
properties are insufficient to
answer for the judgment. Pg.
78
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.
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either real
or personal property,
May be levied upon in like manner and with
like effect as under a writ of attachment.
Garnishment of debts and credits.
The officer may levy on:
a. Debts due the judgment obligor and
b. Credits, including bank deposits, financial
interests, royalties, commissions and
c. Personal property not capable of manual
delivery in the possession or control of third
parties.
Levy shall be made by:
Serving notice upon the
a. Person owing such debts or
b. Having in his possession or control
such credits to which the judgment
obligor is entitled.
 REMEDIAL LAW REVIEWER
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 paragraph (a) with respect to
delivery of payment to the judgment obligee.
d) Execution of judgments for specific acts
Conveyance, delivery of deeds, or other specific acts;
vesting title.
Chapter III Civil Procedure
If a judgment directs a party to execute:
1. A conveyance of land or personal property,
or
2. To deliver deeds or other documents, or Pg.
3. To perform, any other specific act in 79
connection therewith,
And the party fails to comply within the time
specified,
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.
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. (10a)
Sale of real or personal property.
If the judgment be for the sale of real or personal
property,
1. To sell such property, describing it, and
2. Apply the proceeds in conformity with the
judgment. (8[c]a)
(c) Delivery or restitution of real property.
1. 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
2. Restore possession thereof to the judgment
obligee,
 REMEDIAL LAW REVIEWER
Otherwise, the officer shall:
a. Oust all such persons therefrom with the
assistance, if necessary, of appropriate
peace officers, and
b. Employing such means as may be reasonably
necessary to retake possession, and place
the judgment obligee in possession of such
property.
c. Any costs, damages, rents or profits awarded
by the judgment shall be satisfied in the
same manner as a judgment for money.
(13a)
(d) 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:
1. Special order of the court,
2. Issued upon motion of the judgment obligee
3. After the hearing and
4. After the former has failed to remove the
same within a reasonable time fixed by the
court. (14a)
(e) 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. (8a)
Chapter III Civil Procedure
e) Execution of special judgments
When a judgment requires the performance of any
act other than those mentioned in the two
preceding sections,- Pg.
80
1. Aa certified copy of the judgment shall be
attached to the writ of execution and
2. 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
f) Effect of levy on third persons
The levy on execution shall:
1. Create a lien in favor of the judgment obligee
over the right, title and interest of the
judgment obligor in such property at the
time of the levy,
Subject to liens and encumbrances then existing.
3.17.4. Properties exempt from execution
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt
from execution:
(a) The judgment obligor's family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith;
(b) Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
(c) 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;
REMEDIAL LAW REVIEWER
(d) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
(e) 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;
(f) Provisions for individual or family use
sufficient for four months;
(g) 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;
(h) 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;
(i) 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;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
(l) The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from the
Government;
(m) Properties specially exempted by law.
Chapter III Civil Procedure
But 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. Sec. 13, Rule
39.
Pg.
81
3.17.5. Proceedings where property is claimed by
third persons
If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto or
right to the possession thereof, stating the grounds of
such right or title, and serves the same upon the
officer making the levy and copy thereof, stating the
grounds of such right or tittle, and a serves the same
upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be
bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond
approved by the court to indemnity the third-party
claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such
value, the same shall be determined by the court
issuing the writ of execution.
Bond is required
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.
Officer is not liable if bond is filed
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. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee
from claiming damages in the same or a separate
action against a third-party claimant who filed a
frivolous or plainly spurious claim.
 REMEDIAL LAW REVIEWER
When the writ of execution is in favor of the
Republic of the Philippines
When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose. Sec.
16, Rule 39
a) In relation to third-party claim in attachment and
replevin
Remedies available to a third person not party to the
action but whose property is the subject of execution:
1. Terceria - By making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title.
2. Exclusion or release of the property - Upon
application of the third person through a
motion to set aside the levy on attachment,
the court shall order a summary hearing for
the purpose of determining whether the
sheriff has acted rightly or wrongly in the
performance of his duties in the execution of
the writ of attachment.
3. Motion for intervention a motion for
intervention may be filed before the
rendition of judgment by the trial court.
4. Accion Reivindicatoria - The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in
the same or in a separate action. He may file
a separate action to nullify the levy with
damages resulting from the unlawful levy
and seizure. This action may be a totally
distinct action from the former case.
3.17.6. Rules on redemption
Who may redeem the property sold
Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the
following persons:
Chapter III Civil Procedure
(a) The judgment obligor; or his successor in
interest in the whole or any part of the
property;
(b) A creditor having a lien by virtue of an Pg.
attachment, judgment or mortgage on the 82
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor
is termed a redemptioner. Sec. 27, Rule 39
Time and manner of, and amounts payable on,
successive redemptions; notice to be given and filed.
The judgment obligor, or redemptioner, may redeem
the property from the purchaser, at any time within
one (1) year from the date of the registration of the
certificate of sale, by paying the purchaser the
amount of his purchase, with the per centum per
month interest thereon in addition, up to the time of
redemption, together with the amount of any
assessments or taxes which the purchaser may have
paid thereon after purchase, and interest on such last
named amount at the same rate; and if the purchaser
be also a creditor having a 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.
Property so redeemed may again be redeemed within
sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with
two per centum thereon in addition and the amount
of any assessments or taxes which the last
redemptioner may have paid thereon after
redemption by him, with interest on such last named
amount, and in addition, the amount of any liens held
by said last redemptioner prior to his own, with
interest. The property may be again, and as often as
a redemptioner is so disposed, redeemed from any
previous redemptioner within sixty (60) days after the
last redemption, on paying the sum paid on the last
previous redemption, with two per centum thereon in
addition, and the amounts of any assessments or
taxes which the last previous redemptioner paid after
the redemption thereon, with interest thereon, and
 REMEDIAL LAW REVIEWER
the amount of any liens held by the last redemptioner
prior to his own, with interest.
Written notice is required
Written notice of any redemption must be given to
the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any
assessments or taxes are paid by the redemptioner or
if he has or acquires any lien other than that upon
which the redemption was made, notice thereof must
in like manner be given to the officer and filed with
the registry of deeds; if such notice be not filed, the
property may be redeemed without paying such
assessments, taxes, or liens.
3.17.7. Examination of judgment obligor when
judgment is unsatisfied
When the return of a writ of execution issued against
property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the
judgment remains unsatisfied, in whole or in part,
1. the judgment obligee, at anytime after such
return is made,
2. shall be entitled to an order from the court
which rendered the said judgment,
3. requiring such judgment obligor to appear
and be examined concerning his property
and income before such court or before a
commissioner appointed by it at a specified
time and place; and
4. proceedings may thereupon be had for the
application of the property and income of
the judgment obligor towards the
satisfaction of the judgment.
But no judgment obligor shall be so required to
appear before a court or commissioner outside the
province or city in which such obligor resides or is
found.
3.17.8. Examination of obligor of judgment
obligor
When the return of a writ of execution against the
property of a judgment obligor shows that:
Chapter III Civil Procedure
1. the judgment remain unsatisfied, in whole or
in part, and
2. upon proof to the satisfaction of the court
which issued the writ, that a person,
corporation, or other juridical entity has
Pg.
property of such judgment obligor or is 83
indebted to him,
The court may, by an order, require such
person, corporation, or other juridical entity,
or any officer, or member thereof, to appear
before the court or a commissioner
appointed by it, at a time and place within
the province or city where such debtor
resides or is found, and be examined
concerning the same.
The service of the order shall bind all credits due the
judgment obligor and all money and property of the
judgment obligor in the possession or in the control
of such person corporation, or juridical entity from
the time of service; and the court may also require
notice of such proceedings to be given to any party to
the action in such manner as it may deem proper. Sec.
37, Rule 39.
3.17.9. Effect of judgment or final orders
The effect of a judgment or final order rendered by a
court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as
follows:
In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person,
or in respect to the personal, political, or legal
condition or status of a particular person or his
relationship to another,
The judgment or final order is conclusive upon the
title to the thing, the will or administration or the
condition, status or relationship of the person,
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;
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

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; and
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.
3.17.10. Enforcement and effect of foreign
judgments or final orders
The effect of a judgment or final order of a tribunal of
a foreign country, having jurisdiction to render the
judgment or final order is as follows:
3.18. PROVISIONAL REMEDIES
3.18.1. Nature of provisional remedies
Pg.
Provisional remedies can be availed of at the
84
commencement of the action, or at the time of filing
of the complaint or by motion.
Provisional remedies are temporary, auxiliary, and
ancillary remedies resorted to by litigants to preserve
or protect their rights or interests while the main
action is pending, to secure judgment, to preserve the
status quo, or to preserve the subject matter of the
action.
Purposes of provisional remedies
1. To preserve or protect their rights or
interests while the main action is pending
2. To secure judgment,
3. To preserve the status quo, or
4. To preserve the subject matter of the action.

In case of a judgment or final order upon a specific Kinds of provisional remedies under the Rules-
thing,
1. Preliminary attachment Rule 57
2. Preliminary injunction Rule 58
The judgment or final order, is conclusive upon the
3. Receivership Rule 59
title to the thing, and
4. Replevin Rule 60
5. Support pendent lite Rule 61
In case of a judgment or final order against a person,

The judgment or final order is presumptive evidence

Other provisional remedies under the rules
of a right as between the parties and their successors
promulgated by the Supreme court:
in interest by a subsequent title.
a. Environmental protection order ( just like
How to repel foreign judgment or final order TRO in environmental cases ), AM No 09-6-
8-SC, Sec. 8, Rule 2, Part II
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of b. Writ of Amparo AM No. 07-9-12, Rules on
notice to the party, collusion, fraud, or clear mistake
Writ of Amparo
of law or fact. Sec. 48, Rule 39.

1. Temporary Protection order Sec.

14(a)
2. Inspection Order Sec. 14(a)
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

3. Production Order Sec. 14(a) 2. Preliminary attachment against

4. Witness Protection Order Sec. 14(a)
c. Writ of Habeas Data AM No. 08-1-16-SC
1. Inspection Order Sec. 14
2. Production Order Sec. 14
d. Declaration of Nullity Absolute Nullity of
Void Marriages and Annulment of Void
Marriages, AM No. 02-11-10-SC, 2003, and
Provisional Orders AM No. 02-11-12, 2003
1. Spousal Support, Sec. 2onRule on
Provisional Orders
2. Child Support, Sec., 3
3. Child Custody, Sec. 4
4. Visitation Rights, Sec. 5
5. Hold Departure Order, Sec. 6
6. Order of Protection, Sec. 6
e. Custody of Minors and Writ of Habeas
Corpus in relation to Custody of Minors, AM
No. 03-04-04, 2003
property or garnishment of funds in
custody of bank or a third person
3. Appointment of a receiver
4. Detention, preservation, delivery or Pg.
inspection of property 85
5. Assistance in the enforcement of an
interim measure of protection
granted by the arbitral tribunal,
which the latter cannot enforce
effectively
h. Civil forfeiture, assets preservation, and
freezing of monetary instrument, property,
or proceeds, representing, involving, or
relating to an unlawful activity or money
laundering offense under RA 9160, as
amended. AM No. 5-11-04
1. Asset preservation order, Sec. 11,
Title III, AM No. 05-11-04
Courts which can grant provisional remedies

1. Provisional Order awarding Supreme Court, CA, RTC, MTC, McTC, MTC can issue
custody, Sec. 13 the provisional remedies:
2. Temporary Visitation Rights, Sec. 15
1. Attachment
3. Hold Departure Order, Sec. 16
2. Injunction
4. Protection Order, Sec. 17
3. Receivership, and
4. Replevin
f. Violence against women and children, AM
No. 04-10-11, 2004
The support pedente lite can only be issued by
1. Protection Order (TRO) Sec. 7. Regional Trial Court/Family Court since an action for
2. Barangay Protection Order, Sec. 42. support can only be filed with it being an action
subject matter of which is incapable of pecuniary
g. Alternative Dispute Resolution AM No. estimation.
070-11-08, 2009
3.18.2. Jurisdiction over provisional remedies
Interim Measure of Protection, Rule 5.6: The court which grants or issues a provisional remedy
is the court which has jurisdiction over the main
1. Preliminary injunction directed action.
against a party to arbitration
Even an inferior court may grant a provisional remedy
in an action pending with it and within its jurisdiction.
 REMEDIAL LAW REVIEWER
3.18.3. Preliminary attachment (Rule 57)
Preliminary attachment is a provisional remedy
issued upon order of the court where the action is
pending, to be levied upon the property or properties
of the defendant therein, the same to be held
thereafter by the sheriff as security for the
satisfaction of whatever judgment might be rendered
in said action in favor of the attaching creditor against
the defendant, Virata vs Aquino, Sept 10. 1973
Nature of attachment Purely statutory remedy
The provisions thereof must be strictly construed.
Courts have consistently held that no court has no
authority to issue writ of attachment without express
statutory permission.
a) Grounds for issuance of writ of attachment
Grounds for preliminary attachment-
1. In an action for the recovery of a specified
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is
about to depart from the Philippines with
intent to defraud his creditors;
2. In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
or an officer of a corporation, or 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;
3. In an 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;
Chapter III Civil Procedure
4. In an 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; Pg.
5. In an action against a party who has 86
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors; or
6. In an action against a party who does not
reside and is not found in the Philippines, or
on whom summons may be served by
publication. (1a)
When preliminary attachment can be availed of-
At the commencement of the action or at any time
before entry of the judgment, a plaintiff or any proper
party may have the property of the adverse party
attached as security for satisfaction of any judgment
that may be recovered in the cases enumerated
above.
The mere change in the name of the plaintiff in the
amended complaint does not affect the validity of
the attachment.
Attachment is not available if the property is in
possession of the attaching creditor. Calo vs Roldan,
76 Phil 445
Attachment is available if the defendant disposing
his properties, to evade the payment of his
indebtedness to the plaintiff. The subsequent lifting
of the writ upon filing of a counterbond by the
defendant did not ipso facto make the writ unlawful.
Lien obtained by attachment is equivalent to a
vested interest, an actual and substantial security
affording specific security for satisfaction of debt, put
in a suit, which constitutes a cloud in the title. Even
though inchoate, it is a lien in a real sense.
Government, et. al vs Mercado
 REMEDIAL LAW REVIEWER
Preference of attachment over an unsecured debt,
Not even a judgment on an unsecured debt could
prevail over a prior attachment.
Attachment is inferior to the mortgage of the
consortium bank
Properties of a non-resident defendant in the
Philippines can be attached, through the process of
garnishment or attachment.
b) Requisites
Requirements for issuance of writ of attachment:
When it appears by the affidavit of the applicant, or
of some other person who personally knows the facts
that:
1. That a sufficient cause of action exists,
2. That the case is one of those mentioned in
section 1 hereof,
3. That there is no other sufficient security for
the claim sought to be enforced by the
action,
4. That 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.
5. The affidavit, and the bond required by the
next succeeding section, must be duly filed
with the court before the order issues
c) Issuance and contents of order of attachment;
affidavit and bond
The party applying for the order must thereafter 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:
1. The latter will pay all the costs which may be
adjudged to the adverse party and
Chapter III Civil Procedure
All damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.
d) Rule on prior or contemporaneous service of
Pg.
summons
87
When the contemporaneous service of summons
are not required In levy on attachment-
The requirement of prior or contemporaneous
service of summons shall not apply:
1. Where the summons could not be served
personally or by substituted service despite
diligent efforts, or
2. The defendant is a resident of the Philippines
temporarily absent therefrom, or
3. The defendant is a non-resident of the
Philippines, or
The action is one in rem or quasi in rem.
e) Manner of attaching real and personal property;
when property attached is claimed by third person
How can property be attached-
The sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await
judgment and execution in the action, only so much
of the property in the Philippines of the party against
whom the writ is issued, not exempt from execution,
as may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to the
bond fixed by the court in the order of attachment or
to the value of the property to be attached, exclusive
of costs.
What is the remedy of the party against whom the
writ was issued-
A party against whom the writ was issued may make
a deposit with the court from which the writ is issued,
 REMEDIAL LAW REVIEWER
or gives a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court in the
order of attachment or to the value of the property to
be attached, exclusive of costs.
What are the requirements before the sheriff can
effect levy on attachment-
No levy on attachment pursuant to the writ issued
under section 2 hereof shall be enforced unless it is
preceded, or contemporaneously served by:
1. Service of summons
2. Cop of the complaint
3. Applicants affidavit and bond
4. The order and writ of attachment, on the
defendant within the Philippines
Real property:
Real property, or growing crops thereon, or any
interest therein, standing upon the record of the
registry of deeds of the province in the name of the
party against whom attachment is issued, or not
appearing at all upon such records, or belonging to
the party against whom attachment is issued and held
by any other person, or standing on the records of the
registry of deeds in the name of any other person, by:
1. Tiling with the registry of deeds a copy of the
order, together with a description of the
property attached, and
2. A 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, and
3. By 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.
4. 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
Chapter III Civil Procedure
and page in the registration book where the
certificate is registered, and the registered
owner or owners thereof.
Duty of the Registry of Deeds after levy on Pg.
attachment- 88
The registrar of deeds must:
1. Index attachments filed under this section in
the names of the applicant, the adverse
party, or the person by whom the property
is held or in whose name it stands in the
records.
2. If the attachment is not claimed on the
entire area of the land covered by the
certificate of title, a description sufficiently
accurate for the identification of the land or
interest to be affected shall be included in
the registration of such attachment
Personal property:
Stocks or shares, or an interest in stocks or shares, of
any corporation or company:
1. By leaving with the president or managing
agent thereof, a copy of the writ.
2. A notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such writ;
Stocks and shares of the defendant may be
attached if their situs is within the
Philippines. The situs of corporation stocks
and shares is within the PH if the corporation
is domiciled therein.
Debts and credits, including bank deposits, financial
interest, royalties, commissions, and other property
not capable of manual delivery by:
a. Leaving with the person owing such debts, or
having in his possession or under his control,
such credit or other personal property, or
with his agent, a copy of the writ.
 REMEDIAL LAW REVIEWER
b. Leaving 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.
f) Discharge of attachment and the counter-bond
What is the remedy of the party whose property has
been attached?
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the
security given.
Discharge by filing a counter-bond
The court shall, after due notice and hearing, order
the discharge of the attachment subject to the
condition that:
1. The movant makes a cash deposit, or files a
counter-bond executed to the attaching
party with the clerk of the court where the
application is made, in an amount equal to
that fixed by the court in the order of
attachment, exclusive of costs.
2. If the attachment is sought to be discharged
with respect to a particular property, the
counter-bond shall be equal to the value of
that property as determined by the court.
3. In either case, the cash deposit or the
counter-bond shall secure the payment of
any judgment that the attaching party may
recover in the action. A notice of the deposit
shall forthwith be served on the attaching
party.
Chapter III Civil Procedure
What are the effects of the discharge?
Upon the discharge of an attachment in accordance
with the provisions of this section the discharge has
the following effects: Pg.
89
1. The property attached, or the proceeds of
any sale thereof, shall be delivered to the
party making the deposit or giving the
counter-bond, or to the person appearing on
his behalf
2. The deposit or counter-bond aforesaid
standing in place of the property so released.
Remedy of the applicant if the counter-bond is
insufficient or failed to file additional bond-
Should such counter-bond for any reason be found to
be or become insufficient, and the party furnishing
the same fail to file an additional counter-bond, the
attaching party may apply for a new order of
attachment.
The subsequent lifting of the writ upon the filing of
a counter-bond by the defendant did not ipso facto
make the writ unlawful.
Only the defendant, or the party whose property has
been attached, and no a stranger, may apply for the
discharge of an attachment.
Discharge by other gourds
What is the remedy of the party against whom
attachment is issued?
The party whose property has been ordered attached
may:
File a motion with the court in which he action is
pending, before or after levy or even after the
release of the attached property, for an order to set
aside or discharge the attachment
 REMEDIAL LAW REVIEWER
What are the grounds for setting aside of the writ of
attachment-
a. That the same was improperly or irregularly
issued or enforced
b. The bond is insufficient.
c. If the attachment is excessive, the discharge
shall be limited to the excess.
The burden of proof lies with the creditor if the
motion to quash is filed.
Remedy of the attaching party-
If the motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment
was made.
Courses of action of the court-
After due notice and hearing, the court shall order
the setting aside or the corresponding discharge of
the attachment if it appears that it was improperly or
irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and
the defect is not cured forthwith.
Family home is exempt from execution and also
exempt from attachment and forced sale, Art. 155 of
Family Code.
g) Satisfaction of judgment out of property attached
How can the judgment be satisfied by the attached
property?
If judgment be recovered by the attaching party and
execution issue thereon, the sheriff may cause the
judgment to be satisfied out of the property attached,
if it be sufficient for that purpose in the following
manner:
1. By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
Chapter III Civil Procedure
the court, or so much as shall be necessary
to satisfy the judgment;
2. if any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if Pg.
enough for that purpose remain in the 90
sheriff's hands, or in those the clerk of the
court;
3. By collecting from all persons having in their
possession credits belonging to the
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such credits
and debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over
to the judgment obligee.
The sheriff must make a return-
The sheriff shall forthwith make a return in writing to
the court of his proceedings under this section and
furnish the parties with copies thereof
3.18.4. Preliminary injunction (Rule 58)
Preliminary injunction 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 refrain from a particular act or acts. It may
also require the performance of particular acts, which
is known as preliminary mandatory injunction.
Injunction is a judicial writ, process or proceeding
whereby a party is directed to either to do a particular
act, in which case it is called a mandatory injunction
or to refrain from doing an act, in which case is called
prohibitory injunction.
Purpose of injunction / definition of status quo
The primary purpose of the injunction is to preserve
the status quo by restraining action or interference or
furnishing preventive relief.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

The status quo is the last actual peaceable,

uncontested status which precedes the pending The court in May be Bond is not
controversy. which the granted ex required
application for parte if it shall
a) Definitions and differences: preliminary preliminary appear from
Pg.
injunction and temporary restraining order; status injunction was facts shown by 91
quo ante order made may affidavits or by
issue a TRO ex the verified
parte for a application
Preliminary Temporary Status Quo period not that great or
injunction restraining Order exceeding 20 irreparable
order days from injury would
service to the result to the
An order Issued to Nature of party sought applicant
granted at any preserve the cease and to be enjoined. before the
stage of an status quo636 desist order; matter can be
action or until the heard on
proceeding hearing of the notice.
prior to the application for
judgment or preliminary b) Requisites
final order, injunction.
requiring a Requisites for injunction:
party or a
court, agency 1. There must be a verified petition
or a person to 2. The application must establish that he has a
either refrain right of relief
from or to 3. The applicant must establish that there is a
perform a need to restrain the commission or
particular act continuance of the acts complained
or acts during 4. A bond must be posted, unless exempted
the pendency 5. The threatened injury must be incapable of
of the action. pecuniary estimation

Remains until Has a lifetime No specified c) Kinds of injunction

it is dissolved only of 20 days duration (lasts
Kinds of injunction
or 60 days. until revoked)
Cannot be
Preliminary injunction an order granted at any
granted An order to
stage of an action or proceeding prior to the
without notice maintain the
and hearing. status quo judgment or final order.
between and
Prohibitory injunction which commands a party to
among the
refrain from doing a particular act
parties until
the
Mandatory injunction which commands the
determination
performance of some positive act to correct a wrong
of the prayer
in the past.
for a writ of
preliminary
Preliminary prohibitory injunction an order
injunction
granted at any stage of an action or proceeding prior
 REMEDIAL LAW REVIEWER
to the judgment or final order, requiring a party, or
court, agency or a person to refrain from doing
particular act or acts.
Preliminary mandatory injunction an order granted
at any stage of the action or proceeding prior to the
judgment or final order requiring the performance of
particular act or acts.
Final/Permanent injunction one issued in the
judgment in the case permanently restraining the
defendant or making the preliminary
Writ of injunction is not a judgment on merits:
Hearing on the application is therefore required.
The nature of action for injunction is in personam,
until the final determination of the case. Munoz vs
Yabut, June 6 2011
d) When writ may be issued
For injunction to issue, there must be:
1. There must be a right to be protected
2. The acts against which the injunction is to be
directed are violative of such right.
e) Grounds for issuance of preliminary injunction
Grounds for injunction:
1. That the applicant is entitled to the relief
demanded, and the whole or part of such
relief consists in restraining the commission
or continuance of the act or acts complained
of, or in requiring the performance of an act
or acts either for a limited period or
perpetually;
2. That the commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
3. That a party, court, agency or a person is
doing, threatening, or is attempting to do, or
is procuring or suffering to be done some
act or acts probably in violation of the rights
Chapter III Civil Procedure
of the applicant respecting the subject of
the action or proceeding, and tending to
render the judgment ineffectual.
Pg.
For injunction to issue, there must be: 92
1. There must be a right to be protected
2. The acts against which the injunction is to be
directed are violative of such right.
As an adjunct to the main action subject to the latters
outcome, on the other hand, a writ of preliminary
injunction may be issued upon the concurrence of the
following essential requisites:
1. That the invasion of the right is material and
substantial
2. That the right of complainant is clear and
unmistakable
3. That there is an urgent and paramount
necessity for the writ to prevent serious
damage.
Clear legal right meaning: Must be present
It contemplates a right clearly founded in or granted
by law. In the absence, of a clear legal right, the
issuance of the writ constitutes grave abuse of
discretion.
The injunctive writ is conditioned on the existence of
a clear and positive right of the applicant of the
applicant which should be protected, the writ being
the strong arm of equity, an extraordinary
peremptory remedy which can be availed of only
upon the existence of well-defined circumstances.
Doctrine of the Strong Arm of the Equity in
junction.
The court has consistently ruled that there is no
power the exercise of which is more delicate and
which calls for greater circumspection than the
issuance of an injunction. It should only be extended
in cases of great injury where courts of law cannot
 REMEDIAL LAW REVIEWER
afford an adequate or commensurate remedy in
damages; in cases of extreme urgency; where the
right is very clear; where considerations of relative
inconvenience bear strongly in complainants favor;
where there is a willful and unlawful invasion of
plaintiffs right against his protest and remonstrance,
the injury being a continuing one, and where the
effect of mandatory injunction is rather to re-
establish and maintain a pre-existing continuing
relation between the parties, recently and arbitrarily
interrupted by the defendant, than to establish a new
relation. Thunder Security and Investigation Agency
vs National Food Authority.
f) Grounds for objection to, or for the dissolution of
injunction or restraining order
a) The application for injunction or restraining
order may be denied, upon a showing of its
insufficiency.
b) The injunction or restraining order may also
be denied, or, if granted, may be dissolved,
on other grounds upon affidavits of the party
or person enjoined, which may be opposed
by the applicant also by affidavits.
c) It may further be denied, or if granted, may
be dissolved, if it appears after hearing that
although the applicant is entitled to the
injunction or restraining order, the issuance
or continuance thereof, as the case may be,
would cause irreparable damage to the party
or person enjoined while the applicant can
be fully compensated for such damages as
he may suffer, and the former files a bond in
an amount fixed by the court conditioned
that he will pay all damages which the
applicant may suffer by the denial or the
dissolution of the injunction or restraining
order.
If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified
g) Duration of a Temporary Restraining Order (TRO)
TRO an interlocutory order or writ issued by the
court as a restraint on the defendant until the
Chapter III Civil Procedure
propriety of granting an injunction can be
determined, thus doing no further in its operation
than to preserve the status quo until that
determination.
Pg.
The urgent nature of an injunction or TRO case 93
demands a prompt action and immediate attention,
thereby compelling the filing of the case in the proper
court without delay.
Purpose of a TRO or injunction
The purpose of a TRO is to prevent a threatened
wrong and to protect the property or rights involved
from further injury, until the issues can be
determined after hearing on the merits.
When can a temporary restraining order be issued-
If it shall appear from facts shown by affidavits or by
the verified application that great or irreparable
injury would result to the applicant before the matter
can be heard on notice, the court to which the
application for preliminary injunction was made, may
issue a temporary restraining order to be effective
only for a period of twenty (20) days from service on
the party or person sought to be enjoined, except as
herein provided.
What are the actions of the court within the 20 day
period-
1. Order said party or person to show cause, at
a specified time and place, why the
injunction should not be granted,
2. The court shall also determine within the
same period whether or not the preliminary
injunction shall be granted, and
3. Accordingly issue the corresponding order.
The test in the issuance of a TRO or injunction-
The injunction may be issued only when the plaintiff
appears to be entitled to the main relief he asks in his
complaint. This mean that the plaintiffs allegations
should show clearly that he has cause of action.
 REMEDIAL LAW REVIEWER
The power to stay proceedings: Discretionary upon
the court-
The power to stay proceedings is incidental to the
power inherent in every court to control the
disposition of the cases on its dockets, considering its
time and effort, that of counsel and the litigants.
Grant of injunctive writ: Discretionary.
The grant or denial of a writ of preliminary injunction
in a pending case rests on the sound discretion of the
court taking cognizance of the case, since the
assessment and evaluation of the evidence toward
the end involves findings of fact left to the said court
for its conclusive determination.
Can the court issue a temporary restraining order ex
parte-
However, and subject to the provisions of the
preceding sections, , the executive judge of a
multiple-sala court or the presiding judge of a single
sala court may issue ex parte a temporary restraining
order based on the following grounds:
1. If the matter is of extreme urgency and
2. The applicant will suffer grave injustice and
irreparable injury
What is the period of effectively of temporary
restraining order issued ex parte? Service of
summons and documents.
The temporary restraining order effective for only
seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next
preceding section as to service of summons and the
documents to be served therewith.
Can the period of the 72-hour effectively be
extended? Total period.
Yes. Within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct
a summary hearing to determine whether the
temporary restraining order shall be extended until
Chapter III Civil Procedure
the application for preliminary injunction can be
heard. In no case shall the total period of effectivity
of the temporary restraining order exceed twenty
(20) days, including the original seventy-two hours
provided herein. Pg.
94
What is the effect of the denial or non-resolution
within 20-day period?
In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed
automatically waived.
Can the restraining order be extended? Prohibition.
The effectively of a temporary restraining order is not
extendible without the need of any judicial
declaration to that effect, and no court shall have the
authority to extend or renew the same on the ground
for which it was issued.
What is the lifetime of the TRO issued by the Court
of Appeals?
If the temporary restraining order is issued by the
Court of Appeals or member thereof, it shall be
effective for 60 days from the service on the party or
person sought to be enjoined.
What is the lifetime of the TRO issued by the
Supreme Court?
A restraining order issued by the Supreme Court or a
member thereof shall be effective until further
orders.
Period to resolve the main case or the petition
The trial court, the Court of Appeals, the
Sandiganbayan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a lower
court, board, officer or quasi-judicial agency shall
decide the main case or petition within the six
months from the issuance thereof.
General rule is that injunction is not available for
acts already done, exception.
 REMEDIAL LAW REVIEWER
As a rule, the writ of prohibition will not lie to enjoin
acts already done. However, as an exception to the
rule on mootness, courts will decide a question
otherwise moot if it is capable or repetition yet
evading review.
General Rule Injunction cannot restrain the
execution of judgment; exceptions-
The general rule is that after a judgment has granted
finality, it becomes the ministerial duty of the court
to order its execution. No court should interfere, by
injunction or otherwise, to restrain such execution.
Exceptions:
1. When the facts and circumstances later
transpire that would render the execution
inequitable or unjust,
2. When there is a change in situation of the
parties that may warrant injunctive relief.
The issuance of the writ should not in effect be a pre-
judgment of the case. Rivas vs SEC, 1990
h) In relation to R.A. No. 8975, ban on issuance of
TRO or writ of injunction in cases involving
government infrastructure projects
Sec. 3, of R.A. No. 8975 provides:
Section 3.Prohibition on the Issuance of
Temporary Restraining Orders,
Preliminary Mandatory Injunctions.
No court, except the Supreme Court,
shall issue any temporary restraining
order, 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:
(a) Acquisition, clearance and
development of the right-of-
way and/or site or location of
Chapter III Civil Procedure
any national government
project;
(b) Bidding or awarding of
contract/ project of the
Pg.
national government as
95
defined under Section 2
hereof;
(c) Commencement
prosecution, execution,
implementation, operation of
any such contract or project;
(d) Termination or rescission
of any such contract/project;
and
(e) 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.
i) Rule on prior or contemporaneous service of
summons in relation to attachment
Rule: In any event, the notice of application shall be
preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
complaint or initiatory pleading and the applicant's
 REMEDIAL LAW REVIEWER
affidavit and bond, upon the adverse party in the
Philippines.
When the contemporaneous service of summons is
not required?
1. Where the summons could not be served
personally or by substituted service despite
diligent efforts
2. The adverse party is a resident of the
Philippines temporary absent therefrom
3. He is a non-resident thereof.
3.18.5. Receivership (Rule 59)
Receivership ancillary to the main action, directed
to the property which is the subject of the original
action to protect and preserve the rights of the
parties during the pendency of the main action,
during the pendency of appeal, or as an aid in the
execution of judgment when the writ of execution has
been returned unsatisfied.
a) Cases when receiver may be appointed
Grounds for appointment of a receiver:
1. The party applying for the appointment of a
receiver has an interest in the property or
fund which is the subject of the action or
proceeding and such party or fund is in
danger of being lost, removed or materially
injured;
2. In an action for the foreclosure of a
mortgage that the property is in danger of
being wasted, dissipated, or materially
injured and that its value is probably
insufficient to discharge the debt or that the
parties have so stipulated in the contract of
mortgage;
3. After judgment, to preserve the property
during the pendency of appeal, or dispose of
it according to the judgment, or to aid
execution when execution has been
returned unsatisfied or the judgment-
obligor refuses to apply his property in
satisfaction of the judgment; OR
Chapter III Civil Procedure
4. When appointment of receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation.
Pg.
b) Requisites 96
1. Verified application filed by the party
applying for the appointment of
receivership;
2. Affidavit which shows the applicants
interest and grounds to which it is based;
3. Notice and hearing;
4. Applicant should post a bond in which the
amount shall be fixed by the court;
5. When the receiver is appointed, he shall also
file a bond; AND
6. Receiver must be sworn to perform his
duties faithfully.
c) Requirements before issuance of an order
Before issuing the order appointing a receiver the
court shall require the applicant to file a bond
executed to the party against whom the application is
presented, in an amount to be fixed by the court, to
the effect that the applicant will pay such party all
damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause; and the court may, in its discretion,
at any time after the appointment, require an
additional bond as further security for such damages.
d) General powers of a receiver
The powers of a receiver are the following:
1. To bring and defend actions in his own
name, in his capacity as receiver;
2. To take and keep possession of the property
subject of the controversy;
3. To receive rents;
4. To collect dues to himself or to the fund or
property of which he is the receiver;
5. To compound for and to compromise the
same;
 REMEDIAL LAW REVIEWER
6. To make transfers;
7. To pay outstanding debts; and
8. Generally, to do such acts representing the
property as the court may authorize.
e) Two kinds of bonds
1. Applicants Bond (for appointment of
receiver) To pay the damages the adverse
party may sustain by reason of appointment
of receiver; and
2. Receivers Bond (of the appointed receiver,
aside from oath) To answer for receivers
faithful discharge of his duties.
f) Termination of receivership
Grounds:
1. If necessity of a receiver no longer exist;
2. Aster notice and hearing;
3. Receiver should settle the accounts;
4. Direct the delivery of the funds or other
property on his possession to the person
entitled to receive them;
How the termination is made:
Motu propio or upon motion of either party.
Court should order the discharge of the receiver from
further duty as such.
Receiver shall be entitled to reasonable
compensation to be taxed against the defeated party.
3.18.6. Replevin (Rule 60)
Replevin is a remedy, the purpose of which is to
recover personal property. It may be a main action or
provisional remedy.
a) As a main action, its ultimate goal is to recover
the personal property capable of manual delivery
wrongfully detained by a person.
Chapter III Civil Procedure
b) As a provisional remedy, it seeks to recover
possession of the property prior to the
determination of the principal action.
Pg.
Procedure for Application for Replevin 97
1. File an application for a writ of replevin at
the commencement off the action or before
the defendant answers;
2. Attached to the application is an affidavit
which contains the following:
a. That the applicant is the owner or is
entitled to the possession of a
property particularly described,
b. Must state that the property was
wrongfully detained by the adverse
party and alleging the cause of
detention,
c. That the property has not been
distrained or taken for tax
assessment, fine pursuant to law,
seized under writ of execution or
preliminary attachment, or placed
under custodial egis, or if so, such is
exempt from seizure and custody,
and
d. The actual market value of the
property.
3. Applicant must give a bond, executed to the
adverse party, double the value of the
property.
Sheriffs duty in the implementation of the writ;
when property is claimed by third party
Order of the court and duty of the sheriff:
1. Approval of application;
2. Issue writ of replevin ordering the sheriff to
take the property into his custody (Sec. 3);
3. Sheriff should serve a copy of the order to
the adverse party, together with the copy of
the application, affidavit, and bond, and take
custody of the property (Sec. 4); and
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

4. If after five (5) days and the adverse party 3.19. SPECIAL CIVIL ACTION
does not object, the property shall be
delivered to the applicant. 3.19.1. Nature of special civil actions

Special civil actions are basically ordinary civil

Pg.
proceedings; what makes them special are the
If property is claimed by third party 98
distinct peculiarities inherent in their very nature not
found in ordinary civil actions.
If the property taken is claimed by any person other
than the party against whom the writ of replevin had
They are actions in themselves, but possessing special
been issued or his agent, and such person makes an
affidavit of his title thereto, or right to the possession matters that required special procedures.
thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has For this reason, these proceedings are classified as
possession of the property and a copy thereof upon special civil actions.
the applicant, the sheriff shall not be bound to keep
the property under replevin or deliver it to the 3.19.2. Ordinary civil actions versus special civil
applicant unless the applicant or his agent, on actions
demand of said sheriff, shall file a bond approved by
the court to indemnify the third-party claimant in a
Ordinary civil action Special Civil Action
sum not less than the value of the property under
replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
Based on a cause of Not all is based on
determine the same.
action, act or omission cause of action like
by which one violates declaratory relief and
No claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the right of another interpleader
the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond. May be filed in RTC or Some are filed only in
MTC depending on MTC like Forcible Entry
The sheriff shall not be liable for damages, for the value and Unlawful Detainer
taking or keeping of such property, to any such third-
party claimant if such bond shall be filed. Nothing Venue is determined by Not necessarily the case
herein contained shall prevent such claimant or any the residence of the
third person from vindicating his claim to the parties or the location
property, or prevent the applicant from claiming of property
damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a Ordinarily initiated by Petitions and
separate action. Sec. 7, Rule 60. complaints complaint,

Initiated by filing of Petitions:

1. Declaratory relief other than similar

remedies
2. Review of adjudication of COMELEC and COA
3. Petitions for Certiorari, prohibition and
mandamus
4. Quo warranto
5. Contempt
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Initiated by filing of a complaint: parties to the property subject of

pending suit the action
1. Interpleader c. Defendants are
2. Expropriation being sued
3. Foreclosure of real estate mortgage precisely to Pg.
4. Partition
implead them 99
5. Forcible entry and unlawful detainer

3.19.3. Jurisdiction and venue

The subject matter of a petition for declaratory relief a) Procedure and requisites for interpleader; when
raises issues which are not capable of pecuniary to file
estimation and must be filed with the Regional Trial
Court. It would be error to file the petition with the Whenever conflicting claims upon the same subject
matter are or may be made against a person who
Supreme Court which has no original jurisdiction to claims:
entertain a petition for declaratory relief.
1. No interest whatever in the subject matter,
3.19.4. Interpleader (Rule 62) or
2. An interest which in whole or in part is not
Interpleader It is a special civil action filed by a disputed by the claimants
person, who has property in his possession or an
obligation to render, wholly or partially, against He may bring an action against the
whom two conflicting claims are made upon the same conflicting claimants to compel them to
subject matter and over which he claims no interest, interplead and litigate their several claims
or have an interest which in whole or in part is not among themselves.
disputed by the claimants, to compel the claimants to
interplead and to litigate their conflicting claims The sheriff who is in possession of the proceeds of the
among themselves. sale of property on execution may file action for
interpleader.
Complaint in
Interpleader Lessee may file an action for interpleader if he is in
Intervention
doubt as to whom he shall pay the rent.
a. Original Action a. Ancillary Action
b. Presupposes that b. Is proper in any of
Action for interpleader must be filed within the
the plaintiff has no the four situations
reasonable time after the dispute has arisen,
interest in the mentioned in Rule
otherwise it may be barred by laches. Wack-Wack
subject matter of 19, wherein third
Golf and Country Club vs Lee Wo, March 26, 1976
the action or has an person has legal
interest therein interest over the Interpleader cannot be availed of to resolve the issue
which, in whole or subject matter of of breach of undertakings made by defendants, which
in part, is not action or in the issues should be resolved in ordinary action for
disputed by the success of either or specific performance. Beltran vs PHHC, Aug 28, 1969
other parties to the both defendant, or
action will greatly When to file motion to dismiss
c. Defendants are affected in the
already original disposition of the Within the time for filing an answer.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Grounds: Who may file petition.

1. Impropriety of the interpleader action or 1. Any person interested under a deed, will,
2. On other appropriate grounds specified in contract or other written instrument, or
Rule 16. 2. Whose rights are affected by a statute,
Pg.
executive order or regulation, ordinance, or 100
The period to file the answer shall be tolled any other governmental regulation

If the motion is denied,

The movant may file his answer within the

remaining period, but which shall not be less
than five (5) days in any event, reckoned
from notice of denial Before breach or violation thereof, they may:

Answer and other pleadings 1. Bring an action in the appropriate Regional

Each claimant shall:
1. File his answer setting forth his claim within
fifteen (15) days from service of the
summons upon him,
2. Serving a copy thereof upon each of the
other conflicting claimants who may file
their reply thereto as provided by these
Rules.
Trial Court
2. To determine any question of construction
or validity arising, and for a declaration of his
rights or duties, thereunder. (Bar Matter No.
803, 17 February 1998)
Other actions can be brought under this rule
An action for the reformation of an instrument,

If any claimant fails to plead within the time herein 1. to quiet title to real property or
fixed, 2. remove clouds therefrom, or
3. to consolidate ownership under Article 1607
The court may, on motion, declare him in
of the Civil Code,
default and thereafter render judgment
barring him from any claim in respect to the
Who can be parties
subject matter.
The parties in an interpleader action may file: All persons who have or claim any interest which
1. counterclaims, would be affected by the declaration shall be made
2. cross-claims, parties
3. third-party complaints and
4. responsive pleadings thereto, as provided by (b) Requisites of action for declaratory relief
these Rules.
1. The subject matter must be a deed, will,
contract or other written instrument,
statute, executive order or regulation or
3.19.5. Declaratory reliefs and similar remedies ordinance;
(Rule 63) 2. The terms of said document or the validity
thereof are doubtful and require judicial
a) Who may file the action construction;
 REMEDIAL LAW REVIEWER
3. There must have been no breach of said
document;
4. There must be actual justiciable controversy
or the ripening seeds of one (there is
threatened litigation the immediate future);
5. There must be allegation of any threatened,
imminent and inevitable violation of
petitioners right sought to be prevented by
the declaratory relief sought;
6. The controversy is between persons whose
interests are adverse;
7. The issue must be ripe for judicial
determination e.g. administrative remedies
already exhausted;
8. The party seeking the relief has legal interest
in the controversy; and
9. Adequate relief is not available thru other
means.
(c) When court may refuse to make judicial
declaration
Except in actions falling under the second paragraph
of section 1 of this Rule, the court,
1. motu proprio or
2. upon motion,
May refuse to exercise the power to declare
rights and to construe instruments:
1. In any case where a decision would not
terminate the uncertainty or controversy
which gave rise to the action, or
2. In any case where the declaration or
construction is not necessary and proper
under the circumstances.
d) Conversion to ordinary action
If 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,
1. The action may thereupon be converted into
an ordinary action, and
Chapter III Civil Procedure
2. The parties shall be allowed to file such
pleadings as may be necessary or proper.
3.19.6. Review of judgments and final orders or
resolution of the Comelec and COA (Rule 64)
Pg.
101
a) Application of Rule 65 under Rule 64
This Rule 64 shall govern the review of judgments and
final orders or resolutions of the Commission on
Elections and the Commission on Audit.
Mode of review
A judgment or final order or resolution of the
Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65
Period of filing
The petition shall be filed:
1. Within thirty (30) days
2. From notice of the judgment or final order
or resolution sought to be reviewed.
The filing of a motion for new trial or
reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of
the Commission concerned,
Shall interrupt the period herein fixed.
If the motion is denied,
The aggrieved party may file the petition within the
remaining period, but which shall not be less than five
(5) days in any event, reckoned from notice of denial.
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
Rule 64 Rule 65
Review of the Review of the decision,
judgement, final orders or resolutions of
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

orders, or the court or tribunal ordinary course appeal or any other is entitled,
resolutions of the exercising judicial and of law, a person other plain, and there is no
COMELEC and COA quasi-judicial functions aggrieved speedy, and other plain,
Filed within 30 days Filed within 60 days thereby may file adequate speedy and
from notice of from notice of a verified remedy in the adequate
judgement or final judgement, orders or Pg.
petition in the ordinary course remedy in the
order Sought to be resolution or notice of 102
proper court, of law, a person ordinary course
reviewed the denial of the Motion alleging the facts aggrieved of law, the
for Reconsideration or with certainty thereby may file person
trial and praying that a verified aggrieved
Filed with SC Filed with RTC, SB, CA or judgment be petition in the thereby may file
SC, subject to hierarchy rendered proper court, a verified
of courts annulling or alleging the facts petition in the
Filing of MR can be Filing of MR is a modifying the with certainty proper court,
made if allowed by condition sine qua non proceedings of and praying that alleging the facts
the rules of the for the filing of the such tribunal, judgment be with certainty
Commission petition, unless it falls board or officer, rendered and praying that
under the exceptions and granting commanding judgment be
such incidental the respondent rendered
reliefs as law to desist from commanding
and justice may further the respondent,
3.19.7. Certiorari, prohibition and mandamus require. proceedings in immediately or
(Rule 65) the action or at some other
matter specified time to be
a) Definitions and distinctions therein, or specified by the
otherwise court, to do the
Certiorari Prohibition Mandamus granting such act required to
incidental reliefs be done to
as law and protect the
When any When the When any justice may rights of the
tribunal, board proceedings of tribunal, require. petitioner, and
or officer any tribunal, corporation, to pay the
exercising corporation, board, officer or damages
judicial or quasi- board, officer or person sustained by the
judicial person, whether unlawfully petitioner by
functions has exercising neglects the reason of the
acted without or judicial, quasi- performance of wrongful acts of
in excess its or judicial or an act which the the respondent.
his jurisdiction, ministerial law specifically
or with grave functions, are enjoins as a duty
abuse of without or in resulting from
discretion excess of its or an office, trust, i. Certiorari distinguished from appeal by certiorari
amounting to his jurisdiction, or station, or
lack or excess of or with grave unlawfully
jurisdiction, and abuse of excludes Rule 45 Appeal by
Rule 65 Petition for
there is no discretion another from Certiorari / Petition for
Certiorari
appeal, or any amounting to the use and Review on Certiorari
plain, speedy, lack or excess of enjoyment of a
and adequate jurisdiction, and right or office to a) Petition is based on a. The petition raises
remedy in the there is no which such questions of law the issue whether or
which the appellant not the lower court
REMEDIAL LAW REVIEWER Chapter III Civil Procedure

desires the court to acted without or in The remedies of appeal and certiorari are mutually
resolve excess of jurisdiction exclusive
b) It is a mode of appeal or gave abuse of
involving the review jurisdiction
of judgment, award b. Directed against the
The remedies of appeal and certiorari are mutually
or final order on the interlocutory order of exclusive and not alternative or successive. The
Pg.
merits the court prior to antithetic character of appeal and certiorari has been
103
c) It is a mode of appeal appeal form generally recognized and observed save only on those
which centers on the judgment or where rare instances when appeal is satisfactorily shown to
review on the merits there is no appeal or
be an inadequate remedy. Thus, a petitioner must
of final order of the any other plain,
lower court involving speedy and adequate show valid reasons why the issues raised in his
pure questions of law remedy petition for certiorari could not have been raised on
d) Must be made within c. Is an original action appeal
the reglementary that dwells on the
period for appeal or jurisdictional errors ii. Prohibition and mandamus distinguished from
within 15 days from of whether the lower
injunction
the receipt of the court acted without
assailed judgment or in excess of its
e) Stays the judgment, jurisdiction or with
Prohibition Mandamus Injunction
award, or order grave abuse of
appealed from jurisdiction
f) Petition and d. May be filed not later
respondent are the than 60 days from the Always main Always main Maybe a main
original parties to the notice of judgment, action, to action, to action or
action, and the lower order or resolution prevent act of compel the act provisional
court or quasi-judicial sought to be assailed
respondent desired remedy
agency is not e. Unless a writ of
impleaded preliminary
g) Prior filing of motion injunction or Directed Directed Directed
for reconsideration is temporary against a against judicial against a party
not required restraining order court, a or non-judicial
h) The appellate court is shall have been tribunal body, Does not
in the exercise of its issued, does not stay involve
exercising exercising
appellate jurisdiction the challenged
judicial or ministerial jurisdiction as
and the power of proceeding
review f. The parties are the quasi-judicial duty ground.
aggrieved party functions
against the lower
court or quasi-judicial Ground is lack
agency and the
or excess of
prevailing parties
g. Motion for jurisdiction
reconsideration is
required as a general
rule.
h. The higher court b) Injunctive relief
exercises original
jurisdiction under its The court in which the petition is filed may issue
power of control and orders expediting the proceedings, and it may also
supervision over the grant a temporary restraining order or a writ of
proceedings of the preliminary injunction for the preservation of the
lower court
rights of the parties pending such proceedings. The
petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the
 REMEDIAL LAW REVIEWER
public respondent from further proceeding in the
case.
The public respondent shall proceed with the
principal case within ten (10) days from the filing of a
petition for certiorari with a higher court or tribunal,
absent a Temporary Restraining Order (TRO) or a Writ
of Preliminary Injunction, or upon its expiration.
Failure of the public respondent to proceed with the
principal case may be a ground for an administrative
charge (AM 07-7- 12-SC, Dec. 12, 2007).
c) Exceptions to filing of motion for reconsideration
before filing petition
1. When the issue is one purely of law;
2. When there is urgency to decide upon the
question and any further delay would
prejudice the interests of the government or
of the petitioner;
3. Where the subject matter of the action is
perishable;
4. When order is a patent nullity;
5. When questions have been duly raised and
passed upon by the lower court;
6. When is urgent necessity for the resolution
of the question;
7. When Motion for Reconsideration would be
useless;
8. In a criminal case, where relief from order of
arrest is urgent and the granting of such
relief by the trial court is improbable;
9. Where the proceeding was ex parte or in
which the petitioner had no opportunity to
object;
10. When petitioner is deprived of due process
and there is extreme urgency for urgent
relief; and
11. When issue raised is one purely of law or
public interest is involved.
d) Reliefs petitioner is entitled to
The primary relief will be annulment or modification
of the judgment, order or resolution or proceeding
subject of the petition. It may also include such other
incidental reliefs as law and justice may require
Chapter III Civil Procedure
The court, in its judgment may also award damages
and the execution of the award for damages or costs
shall follow the procedure in Sec. 1, Rule 39
e) Actions/omissions of MTC/RTC in election cases
Pg.
104
Under Rule 65, the proper party who can file a
petition for certiorari, prohibition or mandamus is the
person aggrieved by the action of a trial court or
tribunal in a criminal case pending before it.
Ordinarily, the petition is filed in the name of the
People of the
Philippines by the Solicitor General. However, there
are cases when such petition may be filed by other
parties who have been aggrieved by the order or
ruling of the trial courts.
In the prosecution of election cases, the aggrieved
party is the Comelec, who may file the petition in its
name through its legal officer or through the Solicitor
General if he agrees with the action of the Comelec.
f) When and where to file petition
The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not,
the sixty (60) day period shall be counted from notice
of the denial of said motion.
The petition shall be filed in the Supreme Court or, if
it relates to the acts or omissions of a lower court or
of a corporation, board, officer or person, in the
Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It
may also be filed in the Court of Appeals whether or
not the same is in aid of its appellate jurisdiction, or
in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by
law or these Rules, the petition shall be filed in and
cognizable only by the Court of Appeals.
No extension of time to file the petition shall be
granted except for compelling reason and in no case
exceeding fifteen.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

g) Effects of filing of an unmeritorious petition the office or position

arose;
The court, however, may dismiss the petition if it finds
the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised
Pg.
therein are too unsubstantial to require Petitioner is entitled to Petition may be a voter
105
consideration. Sec. 8, Rule 65. a office not entitled not the
office

Commencement of Quo Warranto

3.19.8. Quo warranto (Rule 66)
An action for the usurpation of a
Quo warranto is a demand made by the state upon
some individual or corporation to show by what right
they exercise some franchise or privilege 1. public office,
appertaining to the state which, according to the 2. position or
Constitution and laws they cannot legally exercise by 3. franchise
virtue of a grant and authority from the State.
May be commenced by a verified petition
a) Distinguish from quo warranto in the Omnibus brought in the name of the Republic of the
Philippines against:
Election Code
a. A person who usurps, intrudes into,
Quo Warranto Rule 66 Quo Warranto, or unlawfully holds or exercises a
Election Code public office, position or franchise;
b. A public officer who does or suffers
The subject position is Subject position is an act which, by the provision of
appointive office elective office law, constitutes a ground for the
forfeiture of his office; or
Grounds relied upon
The issue is the legality are:
An association which acts as a corporation within the
of the occupancy of the
(a) ineligibility to the Philippines without being legally incorporated or
office by virtue of a
position; or (b) without lawful authority so to act.
legal appointment
disloyalty to the
Republic b) When government may commence an action
against individuals
Petition is brought May be instituted with
either to the Supreme the COMELEC by any When the Solicitor General or Public prosecutor must
Court, the Court of voter contesting the commence the action,
Appeals or the Regional election of any member
Trial Court; of Congress, regional, 1. directed by the President of the Philippines,
provincial or city or
officer; or to the MeTC, 2. when upon complaint or
MTC or MCTC if against 3. otherwise he has good reason to believe that
any case specified in the preceding section
any barangay official;
can be established by proof
Filed within one (1) year Filed within ten (10)
from the time the cause days after the
of ouster, or the right of proclamation of the
the petitioner to hold results of the election;
 REMEDIAL LAW REVIEWER
c) When individual may commence an action
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another
may bring an action therefor in his own
name.
d) Judgment in quo warranto action
When the respondent is found guilty of usurping into,
intruding into, or unlawfully holding or exercising a
public office, position or franchise,
a) Judgment shall be rendered that such
respondent be ousted and altogether
excluded therefrom, and
b) That the petitioner or relator, as the case
may be, recover his costs.
Such further judgment may be rendered determining
the respective rights in and to the public office,
position or franchise of all the parties to the action as
justice requires
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,
1. Take upon himself the execution of
the office, and
2. 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.
3. If the respondent refuses or
neglects to deliver any book or
paper pursuant to such demand,
a. He may be punished for
contempt as having
Chapter III Civil Procedure
disobeyed a lawful order
of the court.
The person adjudged entitled to the office may also
bring action against the respondent to recover the
Pg.
damages sustained by such person by reason of the
106
usurpation.
3.19.9. Expropriation (Rule 67)
Expropriation - is an exercise of the States power of
eminent domain wherein the government takes a
private property for public purpose upon payment of
just compensation.
To be filed with the RTC; this is action incapable of
pecuniary estimation
a) Matters to allege in complaint for expropriation
The right of eminent domain shall be exercised by:
1. the filing of a verified complaint
2. which shall state with certainty the right and
purpose of expropriation,
3. describe the real or personal property
sought to be expropriated, and
4. join as defendants all persons owning or
claiming to own, or occupying, any part
thereof or interest therein, showing, so far
as practicable, the separate interest of each
defendant.
a. If the title to any property sought to be
expropriated appears to be in the Republic of the
Philippines, although occupied by private
individuals, or
b. if the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners,
Averment to that effect shall be made in the
complaint.
b) Two stages in every action for expropriation
a) Determination of the authority of the
plaintiff to expropriate
b) Determination of just compensation through
the court-appointed commissioners.
 REMEDIAL LAW REVIEWER
e) Defenses and objections
If a defendant has no objection or defense to the
action or the taking of his property,
he may file and serve a notice of appearance
and a manifestation to that effect,
a. Specifically designating or
identifying the property in which
he claims to be interested, within
the time stated in the summons.
b. Thereafter, he shall be entitled to
notice of all proceedings affecting
the same.
If a defendant has any objection to the filing of or
the allegations in the complaint, or any objection or
defense to the taking of his property,
He shall serve his answer within the time stated in the
summons.
The answer shall:
a. Specifically designate or identify the
property in which he claims to have an
interest,
b. State the nature and extent of the
interest claimed, and
c. Adduce all his objections and defenses
to the taking of his property.
d. No counterclaim, cross-claim or third-
party complaint shall be alleged or
allowed in the answer or any
subsequent pleading.
A defendant waives all defenses and objections not so
alleged
But the court, in the interest of justice, may permit
amendments to the answer to be made not later
than ten (10) days from the filing thereof.
However, at the trial of the issue of just compensation
whether or not a 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.
Chapter III Civil Procedure
f) Order of expropriation
a. If the objections to and the defenses against the
right of the plaintiff to expropriate the property
are overruled, or
b. When no party appears to defend as required by Pg.
this Rule, 107
the court may issue an order of
expropriation declaring 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 the payment of just compensation to
be determined as of the date of the taking of
the property or the filing of the complaint,
whichever came first.
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
thereby.
Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order,
The plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as
the court deems just and equitable.
g)-h) Ascertainment of just compensation;
Appointment of commissioners; commissioners
report; court action upon commissioners report
Upon the rendition of the order of expropriation,
a. The court shall appoint not more than three
(3) competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken.
b. The order of appointment shall designate
the time and place of the first session of the
hearing to be held by the commissioners and
specify the time within which their report
shall be submitted to the court.
 REMEDIAL LAW REVIEWER
Copies of the order shall be served on the parties.
Objections to the appointment of any of the
commissioners shall be filed with the court within ten
(10) days from service, and shall be resolved within
thirty (30) days after all the commissioners shall
have received copies of the objections
Report by commissioners and judgment thereupon.
The court may:
1. order the commissioners to report when any
particular portion of the real estate shall
have been passed upon by them, and
2. may render judgment upon such partial
report, and
3. direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and
4. may from time to time so deal with such
property.
The commissioners shall:
1. make a full and accurate report to the court
of all their proceedings, and
2. such proceedings shall not be effectual until
the court shall have accepted their report
and rendered judgment in accordance with
their recommendations.
Except as otherwise expressly ordered by the court,
such report shall be filed within sixty (60) days from
the date the commissioners were notified of their
appointment, which time may be extended in the
discretion of the court.
Upon the filing of such report, the clerk of the 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 they so desire.
Action upon commissioners' report.
Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before
the expiration of such period but after all the
interested parties have filed their objections to the
Chapter III Civil Procedure
report or their statement of agreement therewith,
the court may, after hearing,
a. accept the report and render judgment in
accordance therewith, or,
Pg.
b. for cause shown, it may recommit the same
108
to the commissioners for further report of
facts, or
c. it may set aside the report and appoint new
commissioners; or
d. it may accept the report in part and reject it
in part and it may make such order or
e. render such 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
i) Rights of plaintiff upon judgment and payment
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 the provisions of
section 2 hereof.
If the defendant and his counsel absent themselves
from the court, or decline to receive the amount
tendered,
The same shall be ordered to be deposited in court
and such deposit shall have the same effect as actual
payment thereof to the defendant or the person
ultimately adjudged entitled thereto.
j) Effect of recording of judgment
The right of the plaintiff to enter upon the property of
the defendant and appropriate the same for public
use or purpose shall not be delayed by an appeal from
the judgment.
 REMEDIAL LAW REVIEWER
But if the appellate court determines that plaintiff
has no right of expropriation,
The judgment shall be rendered ordering the Regional
Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to
determine the damages which the defendant
sustained and may recover by reason of the
possession taken by the plaintiff.
3.19.10. Foreclosure of real estate mortgage
(Rule 68)
In an action for the foreclosure of a mortgage or other
encumbrance upon real estate:
1. the complaint shall set forth the date and
due execution of the mortgage;
2. its assignments, if any;
3. the names and residences of the mortgagor
and the mortgagee;
4. a description of the mortgaged property; a
statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage,
5. the amount claimed to be unpaid thereon;
and
6. the names and residences of all persons
having or claiming an interest in the
property subordinate in right to that of the
holder of the mortgage, all of whom shall be
made defendants in the action
a) Judgment on foreclosure for payment or sale
If upon the trial in such action the court shall find the
facts set forth in the complaint to be true:
1. it shall ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation
2. including interest and other charges as
approved by the court, and costs, and
3. 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 ninety (90) days nor
Chapter III Civil Procedure
more than one hundred twenty (120) days
from the entry of judgment, and
4. that in default of such payment the
property shall be sold at public auction to
satisfy the judgment. Pg.
109
b) Sale of mortgaged property; effect
When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the
amount of the judgment within the period specified
therein, the court, upon motion:
a. 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.
b. Such sale shall not affect the rights of
persons holding prior encumbrances upon
the property or a part thereof, and
c. 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.
Rules on Redemption
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.
c) Disposition of proceeds of sale
The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

the sale: be paid to the person foreclosing the as the balance remaining becomes
mortgage due under the terms of the original
contract, which time shall be stated
When there is any balance or residue
in the judgment.
When there shall be any balance or residue, after Pg.
paying off the mortgage debt due, the same shall be 110
paid to junior encumbrancers in the order of their i. Instances when court cannot render deficiency
priority, to be ascertained by the court, or if there be judgment
no such encumbrancers or there be a balance or
residue after payment to them, then to the Where the debtor-mortgagor is a non-resident and
mortgagor or his duly authorized agent, or to the who at the time of the filing of the action for
person entitled to it foreclosure and during the pendency of the
proceedings was outside the Philippines, it is believed
If the debt for which the mortgage or encumbrance that a deficiency judgment would not be procedurally
was held is not all due as provided in the judgment as feasible.
soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due: e) Judicial foreclosure versus extrajudicial
foreclosure
a) the sale shall terminate; and
b) afterwards as often as more becomes due Extrajudicial
Judicial foreclosure
for principal or interest and other valid foreclosure
charges, the court may, on motion, order No complaint is filed Complaint is filed in
more to be sold. courts
There is a right of No right of
But if the property cannot be sold in portions without redemption redemption except
prejudice to the parties, the whole shall be ordered to when the mortgagee
be sold in the first instance, and the entire debt and is a banking institution
costs shall be paid, if the proceeds of the sale be Has to file separate Can move for
sufficient therefor, there being a rebate of interest action to recover any deficiency in the same
where such rebate is proper deficiency action
The buyer in public Becomes the owner of
d) Deficiency judgment
auction becomes the the property after
absolute owner after confirmation of sale
If upon the sale of any real property as provided in the the consolidation
next preceding section there be a balance due to the There is a special No need for special
plaintiff after applying the proceeds of the sale: power of attorney power of attorney

the court, upon motion, shall render

judgment against the defendant for any
such balance for which,
a. by the record of the case, he may
be personally liable to the plaintiff,
b. upon which execution may issue
immediately if the balance is all
due at the time of the rendition of
the judgment;
c. otherwise; the plaintiff shall be
entitled to execution at such time
3.19.11. Partition (Rule 69)
Partition separation, division and assignment of a
thing held in common among those to whom it may
belong.
Classes of partition:
a. Voluntary partition a division of the
property by the act of the parties
themselves.
 REMEDIAL LAW REVIEWER
b. Compulsory partition- partition by judicial
proceedings at the instance of one or more
of the co-tenants without regard to the
wishes of the other co-tenants.
Kinds of partition:
a. Total Partition is total when all the things
are divided among the participants.
b. Partial when some of the things are
divided and the rest remaining the
community ownership
c. Provisional when it is temporary or
conditional, that is until a final or definite
division is made.
d. Definite when the division resulting is
permanent, final and absolute
e. Judicial when the court intervenes and
approves the division
f. Extrajudicial division may be made by the
testator himself, or by some person named
by the deceased or amicably the interested
heirs by common agreement.
It is in nature of action quasi-in rem since it is not only
directed to a particular person, but it constitutes a
lien on the property subject matter of the action with
the intention of excluding the interest of defendant
therein.
Partition is capable of pecuniary estimation,
therefore, the jurisdiction depends on the amount of
the property. If it is real property, the venue depends
where the property is located, if it is personal
property, it depends on the residence of the parties.
a) Who may file complaint; who should be made
defendants
Person having the right to compel the partition of real
estate may do so as provided in this Rule,
a. setting forth in his complaint the nature and
extent of his title and
b. an adequate description of the real estate of
which partition is demanded and
c. joining as defendants all other persons
interested in the property.
Chapter III Civil Procedure
b) Matters to allege in the complaint for partition
The plaintiff shall state in his complaint, the nature
and extent of his title, an adequate description of the
real estate of which partition is demanded, and shall
join as defendants all other persons interested in the Pg.
111
property.
He must also include a demand for the accounting of
the rents, profits and other income from the property
which he may be entitled to. These cannot be
demanded in another action because they are parts
of the cause of action for partition.
They will be barred if not set up in the same action
pursuant to the rule against splitting a single cause of
action.
c) Three stages in every action for partition
Three (3) stages in the action, each of which could be
the subject of appeal:
a) the order of partition where the property of
the partition is determined;
b) the judgment as to the accounting of the
fruits and income of the property; and
c) the judgment of partition.
d) Order of partition and partition by agreement
If after the trial the court finds that the plaintiff has
the right thereto, it shall order the partition of the real
estate among all the parties in interest.
Thereupon the parties may, if they are able to agree,
a. make the partition among themselves by
proper instruments of conveyance, and
b. the court shall confirm the partition so
agreed upon by all the parties, and
c. such partition, together with the order of the
court confirming the same, shall be recorded
in the registry of deeds of the place in which
the property is situated
e) Partition by commissioners; appointment of
commissioners, commissioners report; court action
upon commissioners report
 REMEDIAL LAW REVIEWER
If the parties are unable to agree upon the partition,
a. the court shall appoint not more than three
(3) competent and disinterested persons as
commissioners to make the partition,
b. 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
f) Judgment and its effects
If actual partition of property is made, the judgment
shall
a. state definitely, by metes and bounds and
adequate description, the particular portion
of the real estate assigned to each party, and
b. the effect of the judgment shall be to vest in
each party to the action in severalty the
portion of the real estate assigned to him.
If the whole property is assigned to one of the
parties upon his paying to the others the sum or
sums ordered by the court,
a. the judgment shall state the fact of such
payment and of the assignment of the real
estate to the party making the payment, and
b. the effect of the judgment shall be to vest in
the party making the payment the whole of
the real estate free from any interest on the
part of the other parties to the action.
If the property is sold and the sale confirmed by the
court,
a. the judgment shall state the name of the
purchaser or purchasers and a definite
description of the parcels of real estate sold
to each purchaser, and
b. the effect of the judgment shall be to vest
the real estate in the purchaser or
purchasers making the payment or
payments, free from the claims of any of the
parties to the action.
Chapter III Civil Procedure
A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place in
which the real estate is situated, and the expenses of
such recording shall be taxed as part of the costs of
the action
Pg.
g) Partition of personal property 112
The provisions of this Rule 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.
h) Prescription of action
Prescription of action does not run in favor of a co-
owner or co-heir against his co-owner or co-heirs as
long as there is a recognition of the co-ownership
expressly or impliedly.
The action for partition cannot be barred by
prescription as long as the co-ownership exists.
But while the action to demand partition of a co-
owned property does not prescribe, a co-owner may
acquire ownership thereof by prescription where
there exists a clear repudiation of the co-ownership
and the co-owners are apprised of the claim of
adverse and exclusive ownership.
3.19.12. Forcible entry and unlawful detainer
(Rule 70)
a) Definitions and distinction
Forcible entry where one is deprived of physical
possession of real property by means of force,
intimidation, strategy, threats or stealth.
Unlawful detainer - where one illegally withholds
possession after the expiration or termination of his
right to hold possession under any contract, express
or implied.
Forcible Entry Unlawful Detainer
Possession of The physical possession
defendant is unlawful is lawful from the
from the beginning
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

beginning but becomes

illegal afterwards
A person deprived of the possession of any land or
Does not require Demand to vacate is building by
demand to vacate required
Pg.
1. force,
Plaintiff must prove No need to prove prior 113
2. intimidation,
that he was in prior posession 3. threat,
possession 4. strategy, or
5. stealth, or
The one year period The one year period 6. a lessor, vendor, vendee, or other person
starts form the actual counts from the date of against whom the possession of any land or
entry the demand 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
b) Distinguished from accion publiciana, accion representatives or assigns of any such lessor,
reivindicatoria and accion interdictal vendor, vendee, or other person,

Acction Acction Accion

Publiciana Reinvindicatoria Interdictal May, at any time within one (1) year after such
unlawful deprivation or withholding of possession,

A plenary An action for the Action for Bring an action in the proper Municipal Trial
ordinary civil recovery of the eviction. Court against the
action for the exercise of Comprises 1. person or persons unlawfully
recovery of the ownership, of two withholding or depriving of
better right of particularly cause of possession, or
possession recovery of action, 2. any person or persons claiming
possession as an forcible under them,
attribute or entry and
incident of unlawful
ownership detainer. For the restitution of such possession, together with
damages and costs.

Lessor to proceed against lessee only after demand.

c) How to determine jurisdiction in accion
publiciana, accion reivindicatoria and accion
interdictal
Forcible entry and unlawful detainer is within the
original exclusive jurisdiction of MTC irrespective of
the amount of unpaid rents. But the acitons must be
made within 1 year from the actual entry (FE) or from
the receipt of the demand (UD).
Accion publiciana and accion reinvindicatoria are
both real actions, and therefore, the jurisdiction and
venue on real actions applies.
d) Who may institute the action and when; against
whom the action may be maintained
Unless otherwise stipulated, such action by the lesser
shall be commenced only
1. after demand to pay or comply with the
conditions of the lease and to vacate is made
upon the lessee, or
2. by serving written notice of such demand
upon the person found on the premises if no
person be found thereon, and
The lessee fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in the case of
buildings.
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

e) Pleadings allowed disturb the proceedings or to impair the respect due

to such body.
The only pleadings allowed to be filed are the

a) complaint, a) Kinds of contempt

b) compulsory counterclaim and Pg.
c) cross-claim pleaded in the answer, 1. Direct 114
d) and the answers thereto. 2. Indirect
3. Criminal
All pleadings shall be verified. 4. Civil
5. Inside
f) Action on the complaint 6. Outside
From an examination of the allegations in the Rule in direct contempt:
complaint and such evidence as may be attached
thereto,
A person guilty of
The court may dismiss the case outright on any of the
grounds for the dismissal of a civil action which are 1. misbehavior in the presence of or so near a
apparent therein court as to obstruct or
2. interrupt the proceedings before the same,
If no ground for dismissal is found, it shall forthwith including
issue summons a. disrespect toward the court,
b. offensive personalities toward
Answers
others, or
c. refusal to be sworn or to answer as
Within ten (10) days from service of summons,
a witness, or
d. to subscribe an affidavit or
1. the defendant shall file his answer to the
complaint and deposition when lawfully required
2. serve a copy thereof on the plaintiff. to do so,

may be summarily adjudged in contempt by

Gen rule: Affirmative and negative defenses not such court and
pleaded therein shall be deemed waived,
punished by a
o fine not exceeding two thousand
Exception: lack of jurisdiction over the subject
pesos or imprisonment not
matter.
exceeding ten (10) days, or both, if
Cross-claims and compulsory counterclaims not it be a Regional Trial Court or a
asserted in the answer shall be considered barred. court of equivalent or higher rank,
or
The answer to counterclaims or cross-claims shall be o by a fine not exceeding two
served and filed within ten (10) days from service of hundred pesos or imprisonment
the answer in which they are pleaded. not exceeding one (1) day, or both,
if it be a lower court.
3.19.13. Contempt
Contempt- a disregard of, or disobedience to the The person adjudged in direct contempt by any court
rules or orders of a judicial body, or an interruption of may not appeal therefrom,
its proceedings by disorderly behavior or insolent
language, in its presence or so near thereto as to
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

Remedy: not constituting direct contempt under

section 1 of this Rule;
But may avail himself of the remedies of certiorari or d. Any improper conduct tending, directly or
prohibition. indirectly, to impede, obstruct, or degrade
the administration of justice; Pg.
The execution of the judgment shall be suspended e. Assuming to be an attorney or an officer of 115
pending resolution of such petition, a court, and acting as such without
authority;
a. provided such person files a bond fixed by f. Failure to obey a subpoena duly served;
the court which rendered the judgment and g. The rescue, or attempted rescue, of a
b. conditioned that he will abide by and person or property in the custody of an
perform the judgment should the petition be officer by virtue of an order or process of a
decided against him. court held by him.

Rule in indirect contempt But nothing in this section shall be so construed as to

prevent the court from:
Requirements for indirect contempt:
a. issuing process to bring the respondent into
a. After a charge in writing has been filed, and court, or
b. An opportunity given to the respondent to b. holding him in custody pending such
comment thereon within such period as may proceedings
be fixed by the court and
c. An opportunity to be heard by himself or How initiated
counsel
Proceedings for indirect contempt may be initiated
Grounds for contempt:
a. motu propio by the court against which the
a. Misbehavior of an officer of a court in the contempt was committed by an order or
performance of his official duties or in his b. any other formal charge requiring the
official transactions; respondent to show cause why he should
b. Disobedience of or resistance to a lawful not be punished for contempt.
writ, process, order, or judgment of a court,
including the act of a person who, after being
dispossessed or ejected from any real In all other cases, charges for indirect contempt shall
property by the judgment or process of any be commenced by:
court of competent jurisdiction, enters or
attempts or induces another to enter into or a. a verified petition with supporting
upon such real property, for the purpose of particulars and
executing acts of ownership or possession, b. certified true copies of documents or papers
or in any manner disturbs the possession involved therein, and
given to the person adjudged to be entitled c. upon full compliance with the requirements
thereto; for filing initiatory pleadings for civil actions
c. Any abuse of or any unlawful interference in the court concerned.
with the processes or proceedings of a court
 REMEDIAL LAW REVIEWER Chapter III Civil Procedure

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 Pg.
separately, 116

Exception: the court in its discretion orders the

consolidation of the contempt charge and the
principal action for joint hearing and decision.

Punishment for indirect contempt

If the respondent is adjudged guilty of indirect

contempt committed against a Regional Trial Court or
a court of equivalent or higher rank, he may be
punished by a fine not exceeding thirty thousand
pesos or imprisonment not exceeding six (6) months,
or both. If he is adjudged guilty of contempt
committed against a lower court, he may be punished
by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both.
If the contempt consists in the violation of a writ of
injunction, temporary restraining order or status quo
order, he may also be ordered to make complete
restitution to the party injured by such violation of
the property involved or such amount as may be
alleged and proved.
 REMEDIAL LAW REVIEWER
IV. SPECIAL PROCEEDINGS
Special Procedure - A special proceeding is a remedy
by which a party seeks to establish a status, a right, or
a particular fact. Sec. 3, Rule 1 of the Rules of Court.
Coverage: Sec. 3, Rule 72
a. Settlement of estate of deceased persons;
b. Escheat;
c. Guardianship and custody of children;
d. Trustees;
e. Adoption;
f. Rescission and revocation of adoption;
g. Hospitalization of insane persons;
h. Habeas corpus;
i. Change of name;
j. Voluntary dissolution of corporations;
k. Judicial approval of voluntary recognition of
minor natural children;
l. Constitution of family home;
m. Declaration of absence and death;
n. Cancellation of correction of entries in the
civil registry.
The enumeration under Rule 72 is not exclusive.
Petition for declaration of nullity of marriage,
liquidation proceeding, etc are also regarded as under
special procedure.
Applicability of rules in civil action
I the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable,
applicable in special proceedings. Sec. 2, Rule 72
Therefore in probate proceedings certificate of forum
shopping, docket fees, explanation of non-personal
service are still required because there is no special
provision regarding those requirements. Sheker vs
Sheker, Dec 13, 2007.
Chapter IV Special Proceedings
4.1. SETTLEMENT OF ESTATE, VENUE AND
PROCESSES (Rule 73)
4.1. 1. Which court has jurisdiction
Pg.
According to R.A. 7691, the jurisdiction is as follows: 117
If within Metro Manila does not exceed 400K, MTC.
If it exceeds, RTC.
If outside Metro Manila does not exceed 300K, MTC.
If exceeds, RTC.
4.1. 2. Venue in judicial settlement of estate
If the decedent is resident at the time of his death,
his will shall be proved, letters of administration be
approved, and estate be settled in court of the
province where he resides.
In case of non-resident decedent, in the Court where
he had the estate.
In probate proceedings, residence means bodily
presence as an inhabitant in a given place as
distinguished in domicile which includes an intention
to return.
4.1. 3. Extent of jurisdiction of probate court
Contest of jurisdiction
General Rule: The jurisdiction shall not be contested
so far as it depends on the place of the decedent or
of location of his estate.
Exceptions:
1. Appeal from that court in the original case
2. When want of jurisdiction appears on the
record
Probate proceedings
If there is a will, it is a testate proceeding. If there is
none, or the will is defective, it will be intestate
proceeding.
 REMEDIAL LAW REVIEWER
If theres a will, probate of the will is necessary.
Can probate court issue writ of execution?
No. Because it refers the adjudication of the claims to
the administrator.
Exceptions:
1. Satisfy the contributive shares of the
devisees, legatees, and heirs on the
possession of decedents assets as laid down
in Rule 88, Sec. 6.
2. Enforce payment of the expenses for
partition under Rule 90, Sec. 3.
3. To satisfy the costs when a person is cited for
examination of probate proceedings under
Rule 142, Sec. 13.
4.1.4. Powers and duties of probate court
Courts of First Instance may issue warrants and
process necessary
1. to compel the attendance of witnesses or
2. to carry into effect theirs orders and
judgments, and all other powers granted
them by law.
If a person does not perform an order or judgment
rendered by a court in the exercise of its probate
jurisdiction,
it may issue a warrant for the apprehension
and imprisonment of such person until he
performs such order or judgment, or is
released.
4.2. SUMMARY SETTLEMENT OF ESTATES
(Rule 74)
As a rule, when a person died leaving a property, it
must be judicially administered. The court must
appoint a qualified administrator in case the
Chapter IV Special Proceedings
deceased left no will, or theres a will but he failed to
name an executor therein.
Exception where the estate should be judicially
administered: Pg.
118
1. Extrajudicial settlement
2. Summary settlement of estate of small value
4.2.1. Extrajudicial settlement by agreement
between heirs, when allowed
Extrajudicial settlement by agreement between
heirs. Sec. 1, Rule 74
1. If the decedent left no will and
2. no debts and
3. the heirs are all of age, or the minors are
represented by their judicial or legal
representatives duly authorized for the
purpose,
The parties may without securing letters of
administration, divide the estate among themselves
as they see fit by means of:
a. Public Instrument
A public instrument filed in the office of the register
of deeds
b. Stipulation pending partition
Should they disagree, they may do so in an ordinary
action of partition
c. Affidavit of Self-Adjudication
If there is only one heir, he may adjudicate to himself
the entire estate by means of an affidavit filled in the
office of the register of deeds.
Affidavit of self-adjudication affidavit required
under Rule 74 Sec. 1 to be executed by the sole heir
of the deceased person in adjudicating to himself the
entire estate left by the decedent. It is filed with the
Registry of Deeds.
 REMEDIAL LAW REVIEWER
As condition precedent of extrajudicial settlement, a
bond shall be simultaneously filed with the said
register of deeds,
1. In an amount equivalent to the value of
the personal property involved
2. As certified to under oath by the parties
concerned and
3. Conditioned upon the payment of any
just claim that may be filed under
section 4 of this rule.
4.2.2. Two-year prescriptive period
It shall be presumed that the decedent left no debts
if no creditor files a petition for letters of
administration within two (2) years after the death of
the decedent.
4.2.3. Affidavit of self-adjudication 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 the register of deeds.
4.2.4. Summary settlement of estates of small
value, when allowed
Requirements:
1. Gross value of estate does not exceed
10,000, testate or intestate
2. Petition by any person before CFI having
jurisdiction
3. Publication of notice of hearing once a week
in every three weeks in newspaper of
general circulation
4. Upon hearing, which should 1-3 months
from the last publication of notice.
5. After such notice to other persons as the
court may direct, Sec. 2, Rule 74
4.2.5. Remedies of aggrieved parties after
extrajudicial settlement of estate
Lawful participation
Chapter IV Special Proceedings
If it shall appear that within 2 years, an heir or other
person has been unduly deprived of lawful
participation in the estate, they may compel
settlement of estate for purpose of satisfying their
lawful participation. Sec. 4, Rule 74 Pg.
119
Debts and lawful participation payable in money
If it shall appear within 2 years that there debts
outstanding against the estate which have not been
paid, or an heir or other person has been unduly
deprived of lawful participation payable in money,
The court 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.
Person who had no knowledge or had not
participated in the extrajudicial settlement are not
bound by the 2 years limitation
The provisions of Sec 4, Rule 74 barring distribute or
heirs form objecting to extrajudicial partition after
two years is applicable only to person who has
knowledge of it. People who have no knowledge of it
or had not participated in the extrajudicial settlement
are not bound by 2 years limitation because the Sec.
1 Rule 72 is an ex parte proceeding. Publication of the
settlement does not constitute constructive notice
because the same was notice after the fact of
execution Benatiro vs Cuyos, 560 SCRA 478 2008.
Period for claim of minor or incapacitated person.
Sec. 5, Rule 74
If after two years, and the heir and other person is a
 REMEDIAL LAW REVIEWER
1. minor or
2. mentally incapacitated or
3. in prison or
4. outside of the Philippines,
He may present his claim within one (1) year
after such disability is removed.
4.3. PRODUCTION AND PROBATE OF A
WILL (Rule 75)
No will shall pass either real or personal estate unless
it is proved and allowed in the proper court. Sec. 1,
Rule 75Probate or allowance of wills an act of
proving in a court a document purporting to be the
last will and testament of a certain deceased person
for the purpose of its official recognition, registration
and carrying out of its provisions in so far as they are
in accordance with the law.
4.3.1. Nature of probate proceeding
Probate proceedings are proceedings in rem. Once
probated, it binds the whole world even the state.
Allowance of will is conclusive as to its due execution
Subject to the right of appeal, such allowance of the
will shall be conclusive as to its due execution. And it
cannot be impugned on any grounds except that of
fraud, in any separate or independent proceeding.
Sec. 1, Rule 75
Concept and meaning of due execution:
1. The will was executed in accordance with the
strict formalities of the law;
2. The testator was of sound and disposing
mind at the time of the execution of the will;
3. Consent is not vitiated by any duress, fear,
and threats
4. The will was not procured by any undue
influence from the beneficiary or by some
other person for his benefits
5. The signature of the testator is genuine
Chapter IV Special Proceedings
Doctrine of estoppels is not applicable in probate
proceedings
Pg.
Since the presentation and probate of a will are 120
required by public policy. Fernandez et al, vs
Dimagiba, L-23638, Oct 12, 1967
Probate of a will is not subject to prescription
As such, petition may be filed at any time and is
required by public policy. Guevarra vs Guevarra, 98
Phil 249
4.3.2. Who may petition for probate; persons
entitled to notice
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at any
time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or
destroyed.
The testator himself may, during his lifetime, petition
the court for the allowance of his will. Sec. 1, Rule 76
4.4. ALLOWANCE OF A WILL (Rule 76)
4.4. 1. Contents of petition for allowance of will
Contents of the Petition:
a. The jurisdictional facts;
b. The names, ages, and residences of the
heirs, legatees, and devisees of the testator
or decedent;
c. The probable value and character of the
property of the estate;
d. The name of the person for whom letters are
prayed;
e. If the will has not been delivered to the
court, the name of the person having
custody of it.
 REMEDIAL LAW REVIEWER
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed. Sec. 2, Rule 76
4.4. 2. Grounds for disallowing a will
The will shall be disallowed in any of the following
cases:
a) If not executed and attested as required by
law;
b) If the testator was insane, or otherwise
mentally incapable to make a will, at the
time of its execution;
c) If it was executed under duress, or the
influence of fear, or threats;
d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
e) If the signature of the testator was procured
by fraud or trick, and he did not intend that
the instrument should be his will at the time
of fixing his signature thereto. Sec. 9, Rule 76
4.4. 3. Reprobate (Rule 77)
a) Requisites before a will proved abroad would be
allowed in the Philippines:
1. A copy of the will and order or decree of the
allowance, must be duly authenticated
2. A petition must be filed by the executor or
other persons interested, with the
documents mentioned.
The court shall fix a time and place for the hearing,
and cause notice thereof to be given as in case of an
original will presented for allowance.
When will allowed, and effect thereof.
If it appears at the hearing that the will should be
allowed in the Philippines, the shall so allow it, and a
certificate of its allowance, signed by the judge, and
attested by the seal of the court, to which shall be
Chapter IV Special Proceedings
attached a copy of the will, shall be filed and recorded
by the clerk, and the will shall have the same effect as
if originally proves and allowed in such court. Sec. 3,
Rule 77
Pg.
What must be proved during the re-probate 121
proceeding:
a. That the testator was domiciled in the
foreign country
b. That the will has been admitted to probate
in such country
c. That the foreign court was, under the laws of
said foreign county, a probate court with
jurisdiction over the proceedings
d. The laws on probate procedure in said
country and proof of compliance therewith
e. Leal requirements in the said foreign country
for valid execution of a will Fluemer vs Hix 54
Phil 610
4.4.4. Effects of probate
Subject to the right of appeal, such allowance of the
will shall be conclusive as to its due execution. And it
cannot be impugned on any grounds except that of
fraud, in any separate or independent proceeding.
Sec. 1, Rule 75
What are the effects of allowance of will proven
outside the Philippines?
1. The will shall be treated as if originally
proved and allowed in Philippine Courts
2. Letters testamentary or administration with
a will annexed shall extend to all estates in
the Philippines
3. After the payment of debts and expenses of
administration, the residue of the estate
shall be disposed of as provided by law in
cases of estate in the Philippines belonging
to persons who are inhabitants of another
state or country, Sec. 4, Rule 77
 REMEDIAL LAW REVIEWER
4.5. LETTERS TESTAMENTARY AND OF
ADMINISTRATION (Rule 78)
Letters testamentary it is an authority issued to an
executor named in the will to administer the estate
When a will has been proved and allowed, the court
shall issue letters testamentary thereon to the person
named as executor therein, if he is competent,
accepts the trust, and gives bond as required by these
rules. Sec. 4, Rule 78
Letters of administration it is an authority issued by
the court to a competent person to administer the
estate of the deceased who died intestate.
Executor person named expressly by the deceased
person in his will to administer, settle and liquidate
his estate.
Administrator person appointed by the intestate
court to administer the estate of the deceased person
who:
a. Dies without leaving a will
b. Did not name any executor even if there was
a will
c. If there be one named, he is incompetent,
refuses the trust, or fails to give a bond
d. Or that the will, subsequently, declared null
and void
Incompetent persons to serve as executors or
administrators:
1. Minor
2. Not resident of the Philippines
3. In opinion of the court unfit to execute the
duties of trust by reason of drunkenness,
improvidence, or want of understanding or
integrity, or by reason of conviction of an
offense involving moral turpitude.
Chapter IV Special Proceedings
4.5. 1. When and to whom letters of
administration granted
If no executor is named in the will, or the executor or
executors are incompetent, refuse the trust, or fail to Pg.
give bond, or a person dies intestate, 122
4.5. 2. Order of preference
Order of preference is the executor is incompetent:
a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the
discretion of the court, or to such person as
such surviving husband or wife, or next of
kin, requests to have appointed, if
competent and willing to serve;
b) If such surviving husband or wife, as the case
may be, or next of kin, or the person selected
by them, be incompetent or unwilling, or if
the husband or widow, or next of kin,
neglects for thirty (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 may be
granted to one or more of the principal
creditors, if competent and willing to serve;
c) If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select. Sec. 6,
Rule 78
Q: Can the court set aside the order of preference?
A: No. The Rules of Court provides an order of
preference in the appointment of an administrator.
Ventura vs Ventura 160 SCRA 810
Scope or limit of administration
General rule universally recognized is that
administration extends only to the assets of a
decedent found within the state or country where it
was granted, so that an administrator appointed in
 REMEDIAL LAW REVIEWER
one state or country has no power over the property
in another state or country. Sec. 4, Rule 78
4.5. 3. Opposition to issuance of letters
testamentary; simultaneous filing of petition
for administration (Rule 79)
Any person interested in a will may state in writing
the grounds why letters testamentary should not
issue to the persons named therein as executors, or
any of them, and the court, after hearing upon notice,
shall pass upon the sufficiency of such grounds.
A petition may, at the time, be filed for letters of
administration with the will annexed. Sec. 1, Rule 79.
Contents of the petition:
A petition for letters of administration must be filed
by an interested person and must show, so far as
known to the petitioner:
a) The jurisdictional facts;
b) The names, ages, and residences of the
heirs, and the names and residences of the
creditors, of the decedent;
c) The probable value and character of the
property of the estate;
d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration. Sec.2, Rule 79
4.5. 4. Powers and duties of executors and
administrators; restrictions on the powers (Rule
84)
The general powers and duties of executors are the
following, Rule 84 Sec. 1-3:
1. The executor or administrator of the estate
of a deceased partner shall at all times have
access to, and may examine and take copies
of, books and papers relating to the
partnership business,
Chapter IV Special Proceedings
2. Make examine and make invoices of the
property belonging to such partnership; and
the surviving partner or partners
3. An executor or administrator shall maintain
in tenanble repair the houses and other Pg.
structures and fences belonging to the 123
estate, and deliver the same in such repair to
the heirs or devisees when directed so to do
by the court.
4. An executor or administrator hall have the
right to the possession and management of
the real as well as the personal estate of the
deceased so long as it is necessary for the
payment of the debts and the expenses of
administration.
The right to possession and management is not
absolute
The right of an executor or administrator to the
possession and management of the real and personal
properties o 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 the
administration. Estate of Hilario Ruiz vs CA, 252
SCRA 541
In exercise of these powers, there is no need for leave
of court. Constitution of lease over property of the
estate is an act of administration, therefore does not
require leave of court. San Diego vs Nombre, L-
19265, May 29 1964
Acts not considered as administration (requires
leave of court):
1. Right of redemption over a partition of the
property owned in common sold by one of
the co-owners since this is not within the
powers of administration.
2. Where estate of a deceased person is
already subject of testate or intestate
proceeding, the administrator cannot enter
into any transaction involving it without
prior approval of the court.
 REMEDIAL LAW REVIEWER
Duties of Executors
Executor or administrator chargeable with all estate
and income. Rule 85, Sec. 1
Every executor or administrator is chargeable in his
account with:
a. The whole of the estate of the deceased
which has come into his possession, at the
value of the appraisement contained in the
inventory;
b. With all the interest, profit, and income of
such estate; and
c. With the proceeds of so much of the estate
as is sold by him, at the price at which it was
sold.
d. Exception - Except as otherwise expressly
provided in the following sections.
Summary of duty of the administrator to render an
accounting:
The administrator or executor is under obligation to
render a true and just account of his administration
to the court.
1. Hearing is held before an administrators
account is approved, especially is an
interested party raises objection to certain
items in the accounting report.
2. At the hearing, the practice is for
administrator to take the witness stand,
testify under oath on his accounts and
identify the receipt vouchers and documents
evidencing his disbursements which are
offered as exhibits.
3. He may be interrogated by the court and
coss-examined by oppositors counsel.
4. The oppositor may present proofs to rebut
the administrators evidence in support of
his accounts.
Chapter IV Special Proceedings
Not to profit by increase or lose by decrease in value.
Pg.
124
No executor or administrator shall profit by the
increase, or suffer loss by the decrease or destruction,
without his fault, of any part of the estate. Sec. 2,
Rule 85
Excess if he sells more than the appraisement
He must account for the excess when he sells any part
of the estate for more than the appraisement.
If he sold property less than the appraisement
If any is sold for the less than the appraisement, he is
not responsible for the loss, if the sale has justly
made.
If he settles claim less than its nominal value
If he settles any claim against the estate for less than
its nominal value, he is entitled to charge in his
account only the amount he actually paid on the
settlement.
4.5. 5. Appointment of special administrator
(Rule 80)
Special administrator representative of the
deceased appointed by the probate court to care for
and preserve his estate until an executor or general
administrator is appointed.
When the court can appoint a special administrator-
When there is delay in granting letters testamentary
or of administration by any cause including an appeal
from the allowance or disallowance of a will.
Appointment, upto when
The court may appoint a special administrator to take
possession and charge of the estate of the deceased
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

until the questions causing the delay are decided and the special administrator shall cease, and he shall
executors or administrators appointed. forthwith deliver to the executor or administrator
the goods, chattels, money, and estate of the
deceased in his hands. Sec. 3, Rule 80
Pg.
Administrator Special Administrator What will happen to the suit commenced by special 125
administrator?
1. Appointed when a 1. Special
decedent died administrator is The executor or administrator may prosecute to final
intestate or did not appointed when judgment suits commenced by such special
appoint any there is delay in administrator.
executor in his will granting letters
or the will is testamentary or 4.5. 6. Grounds for removal of administrator
subsequently administration (Rule 82)
disallowed 2. Not obliged to pay
2. Obliged to pay the the debts Administration is revoked if will is discovered
debts of the estate 3. The appointment is
When a will is later discovered, what will happen to
3. The appointment regarded as
letters of administration previously granted?
may be subject of interlocutory,
appeal therefore not
If after letters of administration have been granted
subject to appeal
on the estate of a decedent as if he had died intestate,
his will is proved and allowed by the court,
Powers and duties of special adminsitrator. Sec. 2,
Rule 80. 1. the letters of administration shall be
revoked and
Such special administrator shall:
2. all powers thereunder cease, and
1. Take possession and charge of the goods, 3. the administrator shall forthwith surrender
chattels, rights, credits, and estate of the the letters to the court, and
deceased and 4. render his account with such time as the
2. Preserve the same for the executors or court directs.
administrator afterwards appointed, and Proceeding for the issuance of letters testamentary or
3. For that purpose may commence and of administration under the will shall be as
maintain suits as administrator. hereinbefore provided.

Grounds when the court may remove or accept

He may sell only such perishable and other property
as the court orders sold. A special administrator shall
not be liable to pay any debts of the deceased unless
so ordered by the court.
When powers of special administrator cease.
Transfer of effects. Pending suits.
When letters testamentary or of administration are
granted on the estate of the deceased, the powers of
resignation of an administrator:
1. If an executor or administrator neglects to
render his account and settle the estate
according to law, or
2. Fails to perform an order or judgment of the
court, or a duty expressly provided by these
rules, or
3. Absconds, or becomes insane, or otherwise
incapable or insuitable to discharge the
trust,
 REMEDIAL LAW REVIEWER
The court may remove him, or in its discretion, may
permit him to resign. Sec. 2, Rule 82
When an executor or administrator dies, resign, or is
removed the remaining executor or administrator
may administer the the trust alone, unless the court
grants letters to someone to act with him. If there is
no remaining executor or administrator,
administration may be to any suitable person.
Are the grounds enumerated therein exclusive?
No. The court is invested with ample discretion in the
removal of an administrator as long as there is
evidence of an act or omission on the part of the
administrator or conformable to or in disregard of the
rules or orders of the court which it deems sufficient
or substantial to warrant the removal of
administration.
The grounds for removal of administrator is different
from removal of special administrator, in which in the
latter, there is no ground, only upon discretion of the
court.
The acts of administrator before removal are valid
The lawful acts of an executor or administrator before
the revocation of his letters testamentary or of
administration, or before his resignation or removal,
shall have the like validity as if there had been no such
revocation, resignation, or removal. Sec.3, Rule 82
4.6. CLAIMS AGAINST THE ESTATE (Rule 86)
Immediately after granting letters testamentary or of
administration,
The court shall issue a notice requiring all
persons having money claims against the
decedent to file them in the office of the
clerk of said court. Sec. 1, Rule 86
Chapter IV Special Proceedings
4.6.1. Time within which claims shall be filed;
exceptions
In the notice provided in the preceding section,
Pg.
The court shall estate the time for the filing 126
of claims against the estate, which shall not
be more than twelve (12) not less than six (6)
months after the date of the first publication
of the notice. The period becomes
mandatory once the probate court fixed it.
Extension for the time of filing-
However, at any time before an order of distribution
is entered, on application of a creditor who has failed
to file his claim within the previously limited,
the court may, for cause shown and on such
terms as are equitable, allow such claim to be
filed within a time not exceeding one (1) month.
4.6.2. Statute of non-claims
Statute of non-claims
It is the period fixed in the Sec. 2 Rule 86 for the filing
of claims against the estate. It mandate certain
creditors of a deceased person to present their claims
for examination and allowance within a specified
period, the purpose thereof being to settle the estate
with dispatch, so that the residue may be delivered to
persons entitled thereto without their being
afterwards called upon to respond in actions for
claims, which under the statute of limitations not yet
prescribed. Santos vs Manarang, 27 Phil 213
Publication of notice to creditors.
Every executor or administrator shall, immediately
after the notice to creditors is issued,
a. Cause the same to be published three (3)
weeks successively in a newspaper of
general circulation in the province, and
 REMEDIAL LAW REVIEWER
b. To be posted for the same period in four
public places in the province and in two
public places in the municipality where the
decedent last resided. Sec. 3, Rule 86
Significance of the publication of notice to creditors
It is a constructive notice to all; hence a creditor
cannot be permitted to file his claim beyond the
period fixed in the said notice on the bare ground that
he had no knowledge of the administration
proceedings. Villanueva vs PNB, L-18403, Sept 1983.
Claims which must be filed under the notice. If not
filed, barred; exceptions.
Types of claims that must be filed before the probate
court under notice:
1. All claims for money against the decent,
arising from contract, express or implied,
whether the same be due, not due, or
contingent,
2. All claims for funeral expenses and expense
for the last sickness of the decedent, and
3. Judgment for money against the decent,
The enumerations stated therein are exclusive.
Claims other than money, debt or interest thereon
arising from contract cannot be presented in the
testate or intestate proceedings.
Money claims claims for money, debt or interest
thereon upon a liability by the decedent before his
death. Claims contracted after his death cannot
therefore be presented with the exception of funeral
expenses and expenses incurred on the last sickness
of the decedent.
Consequence if the claims are not filed within the
time in the notice-
If the said claims are not filed within the time limited
in the notice, they are barred forever form presenting
them.
Exception-
Chapter IV Special Proceedings
Except that they may be set forth as counterclaims in
any action that the executor or administrator may
bring against the claimants.
Where an executor or administrator commences an Pg.
action, or prosecutes an action already commenced 127
by the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the
decedent, instead of presenting them independently
to the court as herein provided.
Mutual claims may be set-off
Mutual claims may be set off against each other in
such action; and if final judgment is rendered in favor
of the defendant, the amount so determined shall be
considered the true balance against the estate, as
though the claim had been presented directly before
the court in the administration proceedings.
Claims not yet due, or contingent, may be approved
at their present value.
Contingent claims It is one by which, by its nature
necessarily dependent upon an uncertain event for its
existence and claim, and its validity and enforceability
depending upon an uncertain event.
4.6.3. Claim of executor or administrator
against the estate
If the executor or administrator has a claim against
the estate he represents,
a. He shall give notice thereof, in writing, to the
court, and
b. The court shall appoint a special
administrator, who shall, in the adjustment
of such claim, have the same power and be
subject to the same liability as the general
administrator or executor in the settlement
of other claims. The court may order the
executor or administrator to pay to the
special administrator necessary funds to
defend such claim. Sec. 8, Rule 86.
 REMEDIAL LAW REVIEWER
How to file a claim. Contents thereof. Notice to
executor or administrator.
How claim is being filed-
A claim may be filed by delivering the same with the
necessary vouchers to the clerk of court and by
serving a copy thereof on the executor or
administrator.
Original need not to be filed
If the claim be founded on a bond, bill, note, or any
other instrument, the original need not be filed, but a
copy thereof with all indorsements shall be attached
to the claim and filed therewith. Sec. 9, Rule 86.
When the original shall be exhibited
On demand, however, of the executor or
administrator, or by order of the court or judge, the
original shall be exhibited, unless it be list or
destroyed, in which case the claimant must
accompany his claim with affidavit or affidavits
containing a copy or particular description of the
instrument and stating its loss or destruction. Sec. 9,
Rule 86.
When the claim is due, it must be supported by
affidavit stating:
1. The amount justly due,
2. That no payments have been made thereon
which are not credited, and
3. That there are no offsets to the same, to the
knowledge of the affiant. Sec. 9, Rule 86.
If the claim is not due, or is contingent, when filed, it
must also be supported by affidavits stating the
particulars thereof.
When the affidavit is made by a person other than the
claimant, he must set forth therein the reason why it
is not made by the claimant.
The claim once filed shall be attached to the record of
the case in which the letters testamentary or of
Chapter IV Special Proceedings
administration were issued, although the court, in its
discretion, and as a matter of convenience, may order
all the claims to be collected in a separate folder.
Answer of executor or administrator. Offsets Pg.
128
Within fifteen (15) days after service of a copy of the
claim on the executor or administrator,
a. He shall file his answer admitting or denying
the claim specifically, and
b. Setting forth the admission or denial.
c. If he has no knowledge sufficient to enable
him to admit or deny specifically, he shall
state such want of knowledge. Sec. 10, Rule
86.
The executor shall allege the offset, otherwise, it is
barred.
The executor or administrator in his answer shall
allege in offset any claim which the decedent before
death had against the claimant, and his failure to do
so shall bar the claim forever.
A copy of the answer shall be served by the executor
or administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
As a general rule, a probate court has no jurisdiction
to entertain a claim in favor of the estate against a
third person as the same must be the subject of
ordinary action.
The exception to this rule is provided in Rule 86, Sec.
10, as it authorizes the executor or administrator to
interpose any counterclaim in offset of a claim against
the estate. Said counterclaim is regarded as
compulsory counterclaim as the failure to file shall
bar the claim forever.
Note the amount of the offset against must be
stated, otherwise it will be disallowed.
Disposition of admitted claimAny claim admitted
entirely by the executor or administrator shall
immediately be submitted by the clerk to the court
 REMEDIAL LAW REVIEWER
who may approve the same without hearing; but the
court, in its discretion, before approving the claim,
may order that known heirs, legatees, or devisees be
notified and heard.
If upon hearing, an heir, legatees, or devisee opposes
the claim, the court may, in its discretion, allow him
fifteen (15) days to file an answer to the claim in the
manner prescribed in the preceding section. Sec. 11,
Rule 86
Trial of contested claim.
When the clerk will set the trial for the claim-
a. Upon the filing of an answer to a claim, or
b. Upon the expiration of the time for such
filing
The clerk of court shall set the claim for trial
with notice to both parties. The court may
refer the claim to a commissioner. Sec. 13,
Rule 86.
Judgment appealable.
The judgment of the court approving or disapproving
a claim, shall be filed with the record of the
administration proceedings with notice to both
parties, and is appealable as in ordinary cases.
A judgment against the executor or administrator
shall be that he pay, in due course of administration,
the amount ascertained to be due, and it shall not
create any lien upon the property of the estate, or
give to the judgment creditor any priority of payment.
Sec. 13, Rule 86
4.6.4. Payment of debts
If , after hearing all the money claims against the
estate, and after ascertaining the amount of such
claims, it appears that there are sufficient assets to
pay the debts, the executor or administrator pay the
same within the time limited for that purpose. Sec. 1,
Rule 88.
Chapter IV Special Proceedings
Part of estate from which debt paid when provision
made by will.
Preference in the payment of debts-
Pg.
If the testator makes provision by his will, or 129
designates the estate to be appropriated for the
payment of his debts, the expenses of administration,
or the family expenses, they shall be paid according
to the provisions of the will; Sec. 2, Rule 88.
If the provision is not sufficient for that purpose-
But if the provision made by the will or the estate
appropriated, is not sufficient for that purpose, such
part of the estate of the testator, real or personal, as
is not disposed of by will, if any shall be appropriated
for that purpose. Sec. 2, Rule 88.
4.7. ACTIONS BY AND AGAINST
ADMINISTRATORS AND EXECUTORS (Rule
87)
4.7.1. Actions that may be brought against
executors and administrators
Actions that may not be commence-
No action upon a claim for the recovery of money or
debt or interest thereon shall be commenced against
the executor or administrator;
Actions that may commence-
1. Recovery real or personal property, or an
interest therein, from the estate,
2. To enforce a lien thereon
3. Actions to recover damages for an injury to
person or property, real or personal
The aforementioned instances are deemed actions
that survive the death of the decedent. Sec. 1, Rule
87
When an executor or administrator is appointed and
assumes the trust, the following actions cannot be
maintained by him by an heir or devisee:
 REMEDIAL LAW REVIEWER
1. Action to recover the title or possession of
lands
2. Action for damages done to such lands shall
Until when-
Until there is an order of the court assigning such
lands to such heir or devisee or until the time allowed
for paying debts has expired.
As a rule, heirs have no standing to court to sue for
recovery of estate represented by an executor or
administrator during the pendency of administrative
probate proceedings.
Exceptions:
1. If the executor or administrator is unwilling
to bring suit
2. When the executor or administrator is made
a party defendant where he is alleged t have
participated in the act complained of
3. No appointed executors or administrators
4.
Judicial declaration of ownership of an heir is not
necessary to assert his right
As provided in Art. 777 of the Civil Code, the rights to
succession are transmitted from the moment of
death of the decedent. A judicial declaration of
heirship is not necessary in order for an heir to asset
his right to the property of a deceased.
Executor or administrator may compound with
debtor.
Within the approval of the court, an executor or
administrator may compound with the debtor of the
deceased for a debt due, and may give a discharge of
such debt on receiving a just dividend of the estate of
the debtor. Sec. 4, Rule 87
Mortgage due estate may be foreclosed
A mortgage belonging to the estate of a deceased
person, as mortgagee or assignee of the right or a
Chapter IV Special Proceedings
mortgage, may be foreclosed by the executor or
administrator. Sec. 5, Rule 87
Proceedings when property concealed, embezzled,
or fraudulently conveyed. Rule Pg.
130
if an executor or administrator, heir, legatee, creditor
or other individual interested in the estate of the
deceased, complains to the court having jurisdiction
of the estate that:
1. a person is suspected of having concealed,
embezzled, or conveyed away any of the
money, goods, or chattels of the deceased,
or
2. that such person has in his possession or has
knowledge of any deed, conveyance, bond,
contract, or other writing which contains
evidence of or tends or discloses the right,
title, interest, or claim of the deceased,
The court may cite such suspected person to
appear before it any may examine him on
oath on the matter of such complaint; and
if the person so cited refuses to appear, or
to answer on such examination or such
interrogatories as are put to him, the court
may punish him for contempt, and may
commit him to prison until he submits to
the order of the court. Sec. 6, Rule 87.
Form of the interrogatories and answers
The interrogatories put any such person, and his
answers thereto, shall be in writing and shall be filed
in the clerk's office.
Person entrusted with estate compelled to render
account.
The court, on complaint of an executor or
administrator, may-
a. Cite a person entrusted by an executor or
administrator with any part of the estate of
the deceased to appear before it, and
 REMEDIAL LAW REVIEWER
b. Require such person to render a full account,
on oath, of the money, goods, chattels,
bonds, account, or other papers belonging to
such estate as came to his possession in trust
for such executor or administrator, and of
his proceedings thereon; and if the person so
cited refuses to appear to render such
account, the court may punish him for
contempt as having disobeyed a lawful order
of the court. Sec. 7 Rule 87
Embezzlement before letters
If a person, before the granting of letters
testamentary or of administration on the estate of the
deceased, embezzles or alienates any of the money,
goods, chattels, or effects of such deceased,
Such person shall be liable to an action in
favor of the executor or administrator of
the estate for double the value of the
property sold, embezzled, or alienated, to
be recovered for the benefit of such estate.
Sec. 8, Rule 87.
Property fraudulently conveyed by deceased may be
recovered.
When executor or administrator must bring action.
When there is a deficiency of assets in the hands of
an executor or administrator for the payment of
debts and expenses of administration, and
a. The deceased in his lifetime had conveyed
real or personal property, or a right or
interest therein, or an debt or credit, with
intent to defraud his creditors or to avoid
any right, debt, or duty; or
b. The deceased had ad so conveyed such
property, right, interest, debt or credit that
by law the conveyance would be void as
against his creditors, and the subject of the
attempted conveyance would be liable to
attachment by any of them in his lifetime,
Chapter IV Special Proceedings
The executor or administrator may
commence and prosecute to final judgment
an action for the recovery of such property,
right, interest, debt, or credit for the benefit Pg.
of the creditors; Sec. 9, Rule 87 131
The executor is not bound to commence such action-
But he shall not be bound to commence the action
unless on application of the creditors of the deceased.
Unless the following requisites are present:
a. The creditors making the application pay
such part of the costs and expenses, or
b. Give security therefor to the executor or
administrator, as the court deems
equitable.
4.7.2. Requisites before creditor may bring an
action for recovery of property fraudulently
conveyed by the deceased
When creditor may bring action. Lien for costs.
When there is such a deficiency of assets, and the
deceased in his lifetime had made or attempted such
a conveyance, as is stated in the last preceding
section (Sec. 9, Rule 87) , and the executor or
administrator has not commenced the action therein
provided for-
Any creditor of the estate may, with the
permission of the court, commence and
prosecute to final judgment, in the name of
the executor or administrator, a like action
for the recovery of the subject of the
conveyance or attempted conveyance for
the benefit of the creditors. Sec. 10, Rule 87
Bond is required-
But the action shall not be commenced until the
creditor has filed in a court a bond executed to the
 REMEDIAL LAW REVIEWER
executor or administrator, in an amount approved by
the judge, conditioned to indemnify the executor or
administrator against the costs and expenses
incurred by reason of such action.
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.
When bond is not necessary-
Where the conveyance or attempted conveyance had
been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a
credit may bring shall be in the name of all the
creditors, and permission of the court and filing of
bond as above prescribed, are not necessary.
Note Even if the administration have already been
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is
proper modality despite the total lack of
adverterence to the heirs in the rules of party
representation, Sec. 3 Rule 3, and Sec. 2 of Rule 87. In
fact, in the case of Gochan vs Young, the court
recognized the legal standing of the heirs to represent
the rights and property o the decedent under
administration pending appointment of an
administrator.
4.8. DISTRIBUTION AND PARTITION (Rule
90)
When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in
accordance with law, have been paid,
The court, on the application of the executor
or administrator, or of a person interested in
the estate, and after hearing upon notice,
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, and such persons may demand
Chapter IV Special Proceedings
and recover their respective shares from the
executor or administrator, or any other
person having the same in his possession.
Sec. 1, Rule 90.
Pg.
132
When there is a controversy
If there is a controversy before the court as to who
are the lawful heirs of the deceased person or as the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution until payment of obligations,
exception is the filing of bond.
No distribution shall be allowed until the payment of
the obligations above mentioned has been made or
provided for, unless the distributees, or any of them,
give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations
within such time as the court directs. Sec. 1, Rule 90.
By whom expenses of partition paid.
If at the time of distribution the executor or
administrator has retained sufficient effects in his
hands which may lawfully be applied for the expenses
of partition of the properties distributed,
such expenses of partition may be paid by
such executor or administrator when it
appears equitable to the court and not
inconsistent with the intention of the
testator;
Otherwise, they shall be paid by the parties in
proportion to their respective shares or interest in the
premises, and the apportionment shall be settled and
allowed by the court,
If any person interested in the partition does not pay
his proportion or share, the court may issue an
execution in the name of the executor or
administrator against the party not paying the sum
assessed.Sec. 3, Rule 90
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

4.8.1. Liquidation a. Motion with the probate court for delivery

Liquidation determination of al assets of the estate
and payment of all debts and expenses.
4.8.2. Project of partition
Effect of final decree of distribution of the estate
It vests the title to the land of the estate in the
distributees. If the decree Is erroneous, it should be
corrected by an opportune appeal, for once becomes
final, its binding effect is like any other judgment in
rem, unless properly set aside for lack or jurisdiction
or fraud.
Where the court has validly issued a decree of
distribution and the same has become final, the
validity or invalidity of the project of partition
becomes irrelevant. Vda. De Kolayco vs Tengo 207
SCRA 600
When the probate court loses jurisdiction
Only after the payment of all debts and the remaining
estate delivered to the heirs entitled to receive them.
to him of his share.
b. If the estate proceeding had been closed, he
should file a motion for reopening of the
proceeding, within the prescriptive period Pg.
and not to file an independent action of 133
project of partition which, would be tried by
another court which may thus reverse a
decision or order .
4.8.4. Instances when probate court may issue
writ of execution
The probate court may issue writ of execution on the
following instances:
1. Satisfy the contributive shares of the
devisees, legatees, and heirs on the
possession of decedents assets as laid down
in Rule 88, Sec. 6.
2. Enforce payment of the expenses for
partition under Rule 90, Sec. 3.
3. To satisfy the costs when a person is cited for
examination of probate proceedings under
Rule 142, Sec. 13.

The finality of the approval of the project of partition

itself alone does not terminate the proceedings. As
4.9. TRUSTEES (Rule 98)
long as the order of distribution of the estate has not
4.9.1. Distinguished from
been complied with, the probate proceeding cannot
executor/administrator
be deemed closed and terminated. Guilas vs Judge of
CFI Pampanga, 43 SCRA 11
Trustees Executor/administrator
Recording the order of partition of estate.
An instrument or agent An executor is the
Certified copies of final orders and judgments of the of the cestui que trust, person named in the
court relating to the real estate or the partition who acquires no
beneficial interest in will to administer the
thereof shall be recorded in the registry of deeds of
the estate; he merely decedents estate and
the province where the property is situated. Sec. 4,
took the legal estate carry out the
Rule 90 only as the proper provisions thereof.
execution of the trust
4.8.3. Remedy of an heir entitled to residue but required; and, his
not given his share estate ceases upon the An administrator is
fulfillment of the the person appointed
Remedy of an heir who has not received his share testators wishes, in by the court to
which case, the same administer the estate
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

vest absolutely in the where the decedent

beneficiary. died intestate, or
where the will was
Duties are usually void and not allowed
governed by the to probate, or where
intention of the no executor was
trustor or the parties named in the will, or
if established by a the executor named
contract. Duties may therein is
cover a wider range. incompetent or
refuses to serve as
such.
Duties are fixed
and/or limited by law.
4.9.2. Conditions of the bond
The following conditions shall be deemed to be part
of the bond whether written therein or not;
4.9.3. Requisites for the removal and
resignation of a trustee
Pg.
When a trustee under a written instrument declines, 134
resigns, dies or removed before the objects of the
trust are accomplished, and no adequate provision is
made in such instrument for supplying the vacancy,
the proper Court of First Instance may, after due
notice to all persons interested, appoint a new
trustee to act alone or jointly with the others, as the
case may be. Such new trustee shall have and exercise
the same powers, right, and duties as if he had been
originally appointed, and the trust estate shall vest in
him in like manner as it had vested or would have
vested, in the trustee in whose place he is substituted
and the court may order such conveyance to be made
by the former trustee or his representatives, or by the
other remaining trustees, as may be necessary or
proper to vest the trust estate in the new trustee,
either or jointly with the others.

a) 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;
b) 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;
c) That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused therefrom 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;
d) 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.
4.9.4. Grounds for removal and resignation of a
trustee
The proper Court of First Instance may, upon petition
of the parties beneficially interested and after due
notice to the trustee and hearing, remove a trustee if
such removal appears essential in the interest of the
petitioner.
The court may also, after due notice to all persons
interested, remove a trustee who is:
a. Insane or
b. Otherwise incapable of discharging
his trust or evidently unsuitable
therefor.
A trustee, whether appointed by the court or under a
written instrument, may resign his trust if it appears
to the court proper to allow such resignation.
4.9.5. Extent of authority of trustee
When the sale or encumbrance of any real or
personal estate held in trust is necessary or
expedient, the court having jurisdiction of the trust
 REMEDIAL LAW REVIEWER
may, on petition and after due notice and hearing,
order such sale or encumbrance to be made, and the
re-investment and application of the proceeds
thereof in such manner as will best effect the objects
of the trust.
The petition, notice, hearing, order of sale or
encumbrance, and record of proceedings, shall
conform as nearly as may be to the provisions
concerning the sale or imcumbrance by guardians of
the property of minors or other wards. Sec. 9, Rule
98.
4.10. ESCHEAT (Rule 91)
Escheat it I a proceeding whereby the real and
personal property of a deceased person become the
property of the State upon his death without leaving
a will or legal heirs.
It is an ordinary action but a special proceeding,
commenced by petition and not by complaint.
Municipal Council of San Pedro, Laguna vs Colegio de
San Jose, 65 Phil 318
4.10.1. When to file
When escheat proper-
1. When a person dies intestate, seized of real
property in the Philippine
2. Leaving no heir or person by law entitled to
the same Sec. 1 Rule 90
Who will file-
Solicitor General or his representative in behalf of the
Republic of the Philippines
Venue-
File a petition in the Court of First Instance of the
province where the deceased last resided or in which
he had estate, if he resided out of the Philippines.
4.10.2. Requisites for filing of petition
Chapter IV Special Proceedings
Setting forth the facts, and praying that the estate of
the deceased be declared escheated.
Real parties in interest in escheat proceedings
Pg.
In all actions for reversion to the government the 135
lands of the public domain and improvements
thereon, the Republic of the Philippines is the real
party in interest. The action shall be instituted by the
Solicitor General or the officer acting in his stead in
behalf o the Republic of the Philippines. Luis B.
Manese s Sps. Velasco, GR 164024, Jan 29, 2009
Instance when the escheat proceeding is proper
even if the decedent died testate
Even if the decedent died testate but his will was not
allowed to probate, it is as if he died intestate. In such
a case, he has no known heirs and there are no
persons entitled to his property, the same can still be
escheated.
The venue is the place where the deceased person
last resided.
Order for hearing.
If the petition is sufficient in form and substance, the
court, by an order reciting the purpose of the petition,
a. shall fix a date and place for the hearing
thereof, which date shall be not more than
six (6) months after the entry of the order,
and
b. shall direct that a copy of the order be
published before the hearing at least once a
week for six (6) successive weeks in some
newspaper of general circulation published
in the province, as the court shall be deem
best. Sec. 2, Rule 90
Hearing and judgment. When the court order
hearing for escheat-
Upon satisfactory proof in open court on the date
fixed in the order that such order has been published
as directed and that:
 REMEDIAL LAW REVIEWER
a. the person died intestate,
b. seized of real or personal property in the
Philippines,
c. leaving no heir or person entitled to the
same, and
d. no sufficient cause being shown to the
contrary,
The court shall adjudge that the estate of the
deceased in the Philippines, after the
payment of just debts and charges, shall
escheat; and shall, pursuant to law, assign
the personal estate to the municipality or
city where he last resided in the Philippines,
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. The
estate shall be for the benefit of public schools, and
public charitable institutions and centers in said
municipalities or cities.
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
permanent trust, so that the only income from the
property shall be used. Sec. 3, Rule 90.
4.10.3 Remedy of respondent against petition;
period for filing a claim
When and by whom claim to estate filed.
If a devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears and files a
claim thereto with the court within five (5) years from
the date of such judgment,
a. Such person shall have possession of and
title to the same, or
b. If sold, the municipality or city shall be
accountable to him for the proceeds after
deducting reasonable charges for the care of
the estate; but a claim not made within the
Chapter IV Special Proceedings
said time shall be forever barred. Sec. 4,
Rule 90.
Can the trial court convert an escheat proceeding
into an ordinary special proceeding? Pg.
136
No. The two actions are entirely different form each
other and the requirements in vesting jurisdiction are
likewise different. In special proceedings, publication
is once a week for three consecutive weeks while in
escheat, once a week for fix weeks.
Other actions for escheat. Rule 90 Sec. 5
Until otherwise provided by law, actions reversion or
escheat of properties alienated in violation of the
Constitution or of any statute shall be governed by
this rule, except that the action shall be instituted in
the province where the land lies in whole or in part.
Sec. 5, Rule 90
4.11. GUARDIANSHIP
Guardianship of incompetents who are not minors
Rules 92-97 of the Rules of court limit its application
only to guardianship of incompetents who are not
minors pursuant to AM 03-02-05 SC.
Guardianship of minors
AM 03-02-05-SC governs the rule in guardianship of
minors. Section 27 of the circular provides:
Effect of the rule the rule amends Rule 92-97
inclusive of the Rules of Court on guardianship of
minors. Guardianship of incompetents who are not
minors shall continue to be under the jurisdiction of
regular courts governed by the rules.
Guardianship it is a trust relation of the most sacred
character, in which one person, called a guardian acts
for another called ward whom the law regards as
incapable or managing his own affairs.
Where minors are involved, the State acts as parens
partriae.
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

Guardian a person in whom the law has entrusted 4. Manage the estate of the ward frugally and
the custody and control of the person or estate or apply the proceeds to maintenance of the
both of an infant, insane or other person incapable of ward, Sec. 4
managing his own affairs. 5. Render verified inventory within 3 months
after his appointment and annually Pg.
Classification and kinds of guardians : thereafter upon application of interested 137
person, Sec. 7
a. According to scope of powers 6. Must present his account to the court for
settlement and allowance, Sec. 8
1. General one whose responsibility is over
the person of the ward or over his property
2. Limited over the property only
4.11.2. Conditions of the bond of the guardian
(Rule 94)
b. According to constitution-
Bond to be given before issuance of letters. Amount.
1. General guardian
Condition. Rule 94 Sec. 1
2. Legal guardian person who, without the
need of judicial appointment, is designated
Before a guardian appointed enters upon the
as such y provision of law as in the case of
execution of his trust, or letters of guardianship issue,
parents over the persons of their minor
he shall give a bond, in such sum as the court directs,
children.
conditioned as follows:
3. Guardian ad litem any competent person
appointed by the court to prosecute or a) To make and return to the court, within
defend minor, insane or person declared to three (3) months, a true and complete
be incompetent, in action in court. inventory of all the estate, real and
personal, of his ward which shall come to his
Jurisdiction over Guardianship Proceedings possession or knowledge of any other
person for him;
In guardianship proceedings involving incompetents b) To faithfully execute the duties of his trust,
who are not minors, the RTC where he resides have to manage and dispose of the estate
the jurisdiction in accordance to BP 129 as amended. according to these rules for the best
interests of the ward, and to provide for the
In guardianship of minors, it is the Family Court proper care, custody, and education of the
where the minor resides. ward;
c) To render a true and just account of all the
4.11.1. General powers and duties of guardians estate of the ward in his hands, and of all
(Rule 96) proceeds or interest derived therefrom, and
of the management and disposition of the
Summary of general powers and duties of guardians:
same, at the time designated by these rules
1. Have the care and custody of the person of and such other times as the courts directs,
the ward, and the management of hi estate, and at the expiration of his trust to settle his
or management of estate only, as the case accounts with the court and deliver and pay
may be, Sec. 1 over all the estate, effects, and moneys
2. Pay the debts of the ward, Sec. 2 remaining in his hands, or due from him on
3. Settle accounts, collect debts and appear in such settlement, to the person lawfully
actions for ward, Sec. 4 entitled thereto;
 REMEDIAL LAW REVIEWER
d) To perform all orders of the court by him to
be performed.
4.11.3. Rule on guardianship over incompetent
who are not minor, Rule on guardianship over
minor (Rule 93, AM 03-02-05-SC)
With respect to minor, the following may petition:
1. Any relative
2. Other person on behalf of the minor
3. The minor himself if 14 years of age or over
4. The Secretary of Social Welfare and by the
Secretary of Health in case of an insane
minor who needs to be hospitalized, Sec. 2
SC AM 03-02-05
With respect to incompetent other than a minor, the
following persons may petition:
1. Any relative
2. Friend
3. Other person on behalf of the resident
incompetent who has no parents or lawful
guardian
4. Director of Health in favor of an insane who
should be hospitalized or in favor of an
isolated leper
5. Any one interested in the estate of non-
resident incompetent.
Contents of petition.
A petition for the appointment of a general guardian
must show, so far as known to the petitioner
(Incompetent who are not minors):
1. The jurisdiction facts;
2. The minority or incompetency rendering the
appointment necessary or convenient;
3. The names, ages, and residence of the
relatives of the minor or incompetent, and of
the person having him in their care;
Chapter IV Special Proceedings
4. The probable value and character of his
estate;
5. The name of the person for whom letters of
guardianship.
Pg.
The petition shall be verified; but no defect in the 138
petition or verification shall render void the issuance
of letters of guardianship. Sec. 2, Rule 93.
Contents for petition for guardianship over a minor:
1. Jurisdictional facts
2. Name, age and residence of prospective
ward
3. The ground rendering the appointment
necessary or convenient
4. The death of the parents of the minor or the
termination, deprivation or suspension of
parental authority
5. The remarriage of the minors surviving
parent
6. The names, ages and residences of relative
within the fourth civil degree of minor and of
persons having him in their custody;
7. The probable value, character and location
of the property of the minor; and
8. The name age and residence of person
whom letters of guardianship are prayed.
Court to set time for hearing. Notice thereof.
When a petition for the appointment of a general
guardian is filed,
a. the court shall fix a time and place for
hearing the same, and
b. shall cause reasonable notice thereof to be
given to the persons mentioned in the
petition residing in the province, including
the minor if above 14 years of age or the
incompetent himself, and
c. may direct other general or special notice
thereof to be given. Sec. 3, Rule 93.
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

Notice to a minor who is above 14 years old is

jurisdictional Publication of petition The trial custody shall
is necessary be made mandatory in
The non-compliance with the required notice as the country of the
Petition is allowed to be adopter
provided under Sec. 3 of the Rule 93 of the Revised Pg.
accompanied with
Rules of Court renders the guardianship proceeding 139
prayers of change of No requirement for
null and void. Nery et al, vs Lorenzo, L 23096, Apr 27 name, rectification of publication
1972 simulated birth or
declaration that the There is no such feature
Opposition to petition. Rule 93 Sec. 4 child is foundling,
abandoned or
Any interested person may, by filing a written neglected child.
opposition, contest the petition on the ground of

1. majority of the alleged minor,

2. competency of the alleged incompetent, or 4.12.2. Domestic Adoption Act
3. insuitability of the person for whom letters
are prayed, Who May Adopt.

The following may adopt:

And may pray that the petition be dismissed,
or that letters of guardianship issue to
himself, or to any suitable person named in
the opposition.
4.12. ADOPTION (Rule 99, Domestic
Adoption Act, Inter-Country Adoption)
4.12.1. Distinguish domestic adoption from inter-
country adoption
Domestic adoption Inter-country adoption
(a) Any Filipino citizen of legal age, in possession of
full civil capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at least
sixteen (16) years older than the adoptee, and who is
in a position to support and care for his/her children
in keeping with the means of the family. The
requirement of sixteen (16) year difference between
the age of the adopter and adoptee may be waived
when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as

Jurisdiction is under Family Court having above stated for Filipino nationals: Provided, That
Family Court where the jurisdiction over the his/her country has diplomatic relations with the
adopter resides place where the child Republic of the Philippines, that he/she has been
resides or may be living in the Philippines for at least three (3)
Application is made found. It may be filed continuous years prior to the filing of the application
only by filing a petition directly with the Inter-
for adoption and maintains such residence until the
with the Family Court in Country Adoption
the Philippines Board adoption decree is entered, that he/she has been
certified by his/her diplomatic or consular office or
Trial custody shall be Application may be any appropriate government agency that he/she has
made in the Philippines through the agency the legal capacity to adopt in his/her country, and
for six months located in the foreign that his/her government allows the adoptee to enter
country
 REMEDIAL LAW REVIEWER
his/her country as his/her adopted
son/daughter: Provided, Further, That the
requirements on residency and certification of the
alien's qualification to adopt in his/her country may
be waived for the following:
(i) a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks
to adopt jointly with his/her spouse a relative within
the fourth (4th) degree of consanguinity or affinity of
the Filipino spouse; or
(c) The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
General rule: Husband and wife shall jointly adopt,
Except:
a. if one spouse seeks to adopt the
legitimate son/daughter of the other; or
b. if one spouse seeks to adopt his/her
own illegitimate son/daughter:
Provided, However, that the other
spouse has signified his/her consent
thereto; or
c. if the spouses are legally separated from
each other.
In case husband and wife jointly adopt, or one spouse
adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the
spouses.
Chapter IV Special Proceedings
Who May Be Adopted.
The following may be adopted: Pg.
140
(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;
(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 has been previously
rescinded; or
(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).
Whose Consent is Necessary to the Adoption.
After being properly counseled and informed of
his/her right to give or withhold his/her approval of
the adoption, the written consent of the following to
the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or
the legal guardian, or the proper government
instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten
(10) years of age or over, of the adopter(s) and
adoptee, if any;
 REMEDIAL LAW REVIEWER
(d) The illegitimate sons/daughters, ten (10) years of
age or over, of the adopter if living with said adopter
and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be
adopted.
a) Effects of adoption
1. Transfer of parental authority except in cases
where the biological parent is the spouse of the
adopter, the parental authority of the biological
parents shall terminate and the same shall be vested
in the adopters
2. Legitimacy the adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination
of any kind.
3. Successional rights
In legal and intestate succession, the adopter(s) and
the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation
b) Instances when adoption may be rescinded
A minor or other incapacitated person may, through
a guardian or guardian ad litem, petition for the
rescission or revocation of his or her adoption for the
same causes that authorize the deprivation of
parental authority.
The adopter may, likewise, petition the court for the
rescission of revocation of the adoption in any of
these cases:
a) If the adopted person has attempted against
the file of the adopter
b) When the adopted minor has abandoned
the home of the adopter for more than three
(3) years;
When by other acts the adopted person has
repudiated the adoption
Chapter IV Special Proceedings
c) Effects of rescission of adoption
If the petition is granted, the parental authority of the
adoptee's biological parent(s), if known, or the legal
custody of the Department shall be restored if the
Pg.
adoptee is still a minor or incapacitated. The 141
reciprocal rights and obligations of the adopter(s) and
the adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and
restore his/her original birth certificate.
Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of
judicial rescission. Vested rights acquired prior to
judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall
be without prejudice to the penalties imposable
under the Penal Code if the criminal acts are properly
proven. Sec. 20, RA. 8552
4.12.3. Inter-country adoption
a) When allowed
It is allowed when all the requirements and standards
set forth under R.A. 8043 are complied with.
Who May be Adopted
Only a legally free child may be the subject of inter-
country adoption. In order that such child may be
considered for placement. Sec. 8. RA 8043.
Who May Adopt.
An alien or a 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 and
at least sixteen (16) years older than the
child to be adopted, at the time of
application unless the adopter is the parent
 REMEDIAL LAW REVIEWER
by nature of the child to be adopted or the
spouse of such parent:
b. if married, his/her spouse must jointly file for
the adoption;
c. has the capacity to act and assume all rights
and responsibilities of parental authority
under his national laws, and has undergone
the appropriate counseling from an
accredited counselor in his/her country;
d. has not been convicted of a crime involving
moral turpitude;
e. is eligible to adopt under his/her national
law;
f. is in a position to provide the proper care
and support and to give the necessary moral
values and example to all his children,
including the child to be adopted;
g. ) agrees to uphold the basic rights of the
child as embodied under Philippine laws, the
U.N. Convention on the Rights of the Child,
and to abide by the rules and regulations
issued to implement the provisions of this
Act;
h. comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws; and
i. possesses all the qualifications and none of
the disqualifications provided herein and in
other applicable Philippine laws.
b) Functions of the RTC
An application to adopt a Filipino child shall be filed
either with the Philippine Regional Trial Court having
jurisdiction over the child, or with the Board, through
an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of
the prospective adoptive parents, which application
shall be in accordance with the requirements as set
forth in the implementing rules and regulations to be
promulgated by the Board. Sec. 10, RA. 8043
Chapter IV Special Proceedings
c) Best interest of the minor standard
Best interests of the child means the totality of the
circumstances and conditions as are most congenial
to the survival, protection, and feelings of security of
Pg.
the child and most encouraging to his physical, 142
psychological, and emotional development.
4.13. WRIT OF HABEAS CORPUS (Rule 102)
Habeas corpus A writ directed to the person
detaining another, commanding him to produce the
body of the prisoner at a designated time and place,
with the day and cause of his capture and detention,
to do, submit to, and receive whatsoever to the court
or judge awarding the writ shall consider in that
behalf.
Scope of Habeas Corpus
Except as otherwise expressly provided by law, the
writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person
is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person
entitled thereto. Sec. 1, Rule 102
4.13.1. Contents of the petition
Application for the writ shall be by petition signed and
verified either by the party for whose relief it is
intended, or by some person on his behalf, and shall
set forth:
a) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
b) 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;
c) The place where he is so imprisoned or
restrained, if known;
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

d) A copy of the commitment or cause of 4.13.3. Distinguish peremptory writ from

detention of such person, if it can be preliminary citation
procured without impairing the efficiency of
the remedy; or, if the imprisonment or
Preliminary citation Peremptory writ
restraint is without any legal authority, such Pg.
fact shall appear. Sec. 3, Rule 102 143
Where a person is This is issued when the
detained under cause of the detention
governmental authority appears to be patently
4.13.2. Contents of the return and illegality of his ilelga, and the non-
When the person to be produced is imprisoned or detention is not patent compliance wherewith
from the petition for is punishable. Lee yick
restrained by an officer, the person who makes the
the writ, the court may Hon vs Insular Collector
return shall state therein, and in other cases the issue a citation to the of Customs
person in whose custody the prisoner is found shall government officer
state, in writing to the court or judge before whom having the person in his
the writ is returnable, plainly and unequivocably: cutody to show cause
why the writ of habeas
a) Whether he has or has not the party in his corpus should not
custody or power, or under restraint; issue.
b) 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,
4.13.4. When not proper/applicable
with a copy of the writ, order execution, or
other process, if any, upon which the party is (a) For asserting or vindicating denial of right to bail;
held; Galvez vs. CA, 237 SCRA 685
c) If the party is in his custody or power or is
restrained by him, and is not produced, (b) For correcting errors in appreciation of facts or
particularly the nature and gravity of the appreciation of law where the trial court had no
sickness or infirmity of such party by reason jurisdiction over the cause, over the person of the
of which he cannot, without danger, be accused, and to impose the penalty provided for by
bought before the court or judge; law, the mistake committed by the trial court, in the
d) If he has had the party in his custody or appreciation of the facts and/or in the appreciation of
the law cannot be corrected by habeas corpus Sotto
power, or under restraint, and has
vs. Director of Prisons, May 30, 1962
transferred such custody or restraint to
another, particularly to whom, at what time,
(c) Once a person detained is duly charged in court,
for what cause, and by what authority such he may no longer file a petition for habeas corpus. His
transfer was made. Sec. 10, Rule 102. remedy would be to quash the information or
warrant. Rodriguez vs. Judge Bonifacio, Nov. 26,
2000

4.13.5. When writ disallowed/discharged

If it appears that the person alleged to be restrained
of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

court or judge had jurisdiction to issue the process,

render the judgment, or make the order, the writ shall Filed by a Filed by General rule: By
not be allowed. party for aggrieved aggrieved party
whose relief party, or by
If the jurisdiction appears after the writ is allowed, the it is intended any Except: in
or by some qualified extrajudicial Pg.
person shall not be discharged by reason of any 144
other person person or killings and
informality or defect in the process, judgment, or
in his behalf entity. enforced
order. Not shall anything in this rule be held to disappearances
authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful
judgment. 4.14. WRIT OF AMPARO (A.M. No. 07-9-12-
SC)
4.13.6. Distinguish from writ of amparo and
habeas data It is a remedy available to any person whose right to
life, liberty and security has been violated or is
threatened with violations of unlawful act or omission
Habeas Amparo Habeas Data of public official or employee, or of a private
Corpus
individual or entity.
Rule 102 AM. 07-9-SC AM No. 08-1-16-
SC
4.14.1. Coverage

Writ directed Remedy The writ of habeas The writ covers extralegal killings and enforced
to the person available data is a remedy disappearances and threats thereof.
detaining whose right available to any
another, to life, person whose 4.14.2. Distinguish from habeas corpus and
commanding liberty and right to privacy in habeas data
him to security has life, liberty or
produce the been security is violated See table in 4.13.6.
body of the violated or or threatened by
prisoner at threatened an unlawful act or 4.14.3. Differences between amparo and search
designated with omission of a
time or day. violation by public official or
warrant
an unlawful employee, or of a
act or private individual Writ of Amparo Search Warrant
omission of or entity engaged
a public in the gathering,
official or collecting or
Issuance of the Writ. Requisites for issuing
employee, storing of data or
search warrant
or of a information
Upon the filing of the
private regarding the petition, the court, A search warrant shall
individual or person, family, justice or judge shall not issue except upon
entity. home and
immediately order the probable cause in
correspondence of issuance of the writ if connection with one (1)
the aggrieved on its face it ought to specific offense to be
party.
issue. The clerk of court determined personally
shall issue the writ by the judge after
under the seal of the examination under oath
court; or in case of or affirmation of the
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

urgent necessity, the complainant and the omission, or if the name is unknown or
justice or the judge may witness he may uncertain, the respondent may be described
issue the writ in his or produce, and by an assumed appellation.
her own hand, and may particularly describing
3. The right to life, liberty and security of the
deputize any officer or the place to be
aggrieved party violated or threatened with Pg.
person to serve it. The searched and the things
writ shall also set the to be seized, which may violation by an unlawful act or omission of 145
date and time for be anywhere in the the respondent, and how such threat or
summary hearing of the Philippines. violation committed with the attendant
petition which shall not circumstances detailed in supporting
be later than seven (7) affidavits
days from the date of
4. The investigation conducted, if any,
issuance.
specifying the names, personal
circumstances, and address of the
investigating authority or individuals, as well
4.14.4. Who may file as the manner and conduct of the
investigation, together with any report.
The petition may be filed by the aggrieved party or by
5. The actions and recourses taken by the
any qualified person or entity in the following order:
petitioner to determine the fate or
1. Any member of immediate family, namely: whereabouts of the aggrieved party and the
the spouse, children and parents of the identity of the person responsible for the
aggrieved party; threat, act or omission; and
2. Any ascendant, descendant or collateral 6. The relief prayed for the petition may
relative of the aggrieved party within the include a general prayer for other just and
fourth civil degree of consanguinity or equitable reliefs
affinity, in default of those mentioned in the
preceding paragraph, or
4.14.5. Contents of return
3. Any concerned citizen, organization,
association or institution, if there is no After the service of the writ, the respondent must:
known member of immediate family or
relative of aggrieved party. Within 72 hours after service of the writ, the
respondent shall file a written return together with
The filing of a petition by aggrieved party suspends supporting affidavits which shall among other things,
the right of all other authorized parties to file petition. contain the following:
Likewise, the filing of the petition by an authorized
1. The lawful defenses to show that the
party on behalf of the aggrieved party suspends the
respondent did not violate or threaten with
right of all others, observing the order establishing
violation the right to life, liberty and security
therein.
of the aggrieved party, through any act or
What the petition for Writ of Amparo must contain? omission.
2. The steps or actions taken by the
The petition shall be signed and verified and shall respondent to determine the fate or
allege the following: whereabouts of the aggrieved party and the
person or persons responsible for the
1. The personal circumstances of the petitioner
threat, act or omission.
2. Name and personal circumstances of the
respondent responsible for the threat, act or
 REMEDIAL LAW REVIEWER
3. All the 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 be taken:
a. To recover the identity of the
aggrieved party
b. To recover and preserve the
evidence related to the death or
disappearance of the person
identified in the petition which may
aid in the prosecution of the person
or persons responsible
c. To identify witnesses and obtain
statements from them concerning
the death or disappearances
d. To determine the cause, manner,
location and time of the death or
disappearance as well as any
pattern or practice that may have
brought about the death or
disappearance.
e. To identify and apprehend the
person or persons involved in the
death or disappearance; and
f. To bring the suspected offenders
before a competent court
The return shall also state other matters relevant to
the investigation, its resolution and prosecution of
cases.
The general denial of the allegations in the petition
shall not be allowed
4.14.6. Effects of failure to file return
If the respondent fails to file a return, what will
happen to the proceeding?
The court, justice, or judge shall proceed to hear the
petition ex parte or even without the appearance of
the respondent.
Chapter IV Special Proceedings
4.14.7. Omnibus waiver rule
All defenses shall be raised in the return, otherwise,
they shall be deemed waived. Sec. 10 of Rules on Writ
of Amparo.
Pg.
146
4.14.8. Procedure for hearing
Nature of the hearing on the petition of the writ
It shall be summary. However, the court, justice, or
judge may call for a preliminary conference to
simplify issues and determine the possibility of
obtaining stipulations and admissions from the
parties. The hearing be from day to day until
completed and given the same priority as habeas
corpus.
4.14.9. Institution of separate action
The Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
4.14.10. Effect of filing of a criminal action
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs
under the writ shall be available by motion in the
criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
4.14.11. Consolidation
When a criminal action is filed subsequent to the filing
of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of amparo,
the latter shall be consolidated with the criminal
action.
After consolidation, the procedure under this Rule
shall continue to apply to the disposition of the reliefs
in the petition.
 REMEDIAL LAW REVIEWER
4.14.12. Interim reliefs available to petitioner
and respondent
Interim reliefs available to the petitioner-
Upon filing of the petition or at any time before final
judgment, the court, justice or judge may grant any of
the following reliefs:
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order
These are provisional reliefs that the courts may grant
in order to, inter alia, protect the witnesses and the
rights of the parties, and to preserve all relevant
evidence. These provisional reliefs are intended to
assist the court before it arrives at a judicious
determine of amparo petition.
Are interim reliefs available to the respondent?
Yes, but only the interim reliefs of inspection order
and production order.
These interim reliefs may be issued only:
1. After a verified motion is filed by the
respondent,
2. Supported by affidavits or testimonies of
witnesses having personal knowledge or
defenses of the respondent,
3. After due hearing.
4.14.13. Quantum of proof in application for
issuance of writ of amparo
Parties shall establish their claims by substantial
evidence.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
applicable laws, rules and regulations were observed
in the performance of the duty.
Chapter IV Special Proceedings
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules, and regulations are
observed in the performance of duty.
Pg.
Substantial evidence Quantum of evidence which a 147
reasonable mind might accept as adequate to
support a conclusion.
4.15. WRIT OF HABEAS DATA (A.M. No. 08-
1-16-SC)
4.15.1. Scope of writ
The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party.
4.15.2. Availability of writ
Any aggrieved party may file a petition for the writ
of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition
may be filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
Where to File.
The petition may be filed with the Regional Trial Court
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.
 REMEDIAL LAW REVIEWER
The petition may also be filed with the Supreme Court
or the Court of Appeals or the Sandiganbayan when
the action concerns public data files of government
offices.
4.15.3. Distinguished from habeas corpus and
amparo
See table in 4.13.6.
4.15.4. Contents of the petition
A verified written petition for a writ of habeas
data should contain:
(a) The personal circumstances of the petitioner and
the respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty
or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner
to secure the data or information;
(d) The location of the files, registers or databases,
the government office, and the person in charge, in
possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of
the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer for
an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and
equitable.
Where Returnable; Enforceable.
When the writ is issued by a Regional Trial Court or
any judge thereof, it shall be returnable before such
court or judge.
Chapter IV Special Proceedings
When issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof, or
to any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has Pg.
jurisdiction over the place where the data or 148
information is gathered, collected or stored.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
any justice thereof, or before the Court of Appeals or
the Sandiganbayan or any of its justices, or to any
Regional Trial Court of the place where the petitioner
or respondent resides, or that which has jurisdiction
over the place where the data or information is
gathered, collected or stored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.
4.15.5. Contents of return
The respondent shall file a verified written return
together with supporting affidavits within five (5)
working days from service of the writ, which period
may be reasonably extended by the Court for
justifiable reasons. The return shall, among other
things, contain the following:
(a) The lawful defenses such as national security,
state secrets, privileged communications,
confidentiality of the source of information of media
and others;
(b) In case of respondent in charge, in possession or
in control of the data or information subject of the
petition;
(i) a disclosure of the data or information about the
petitioner, the nature of such data or information,
and the purpose for its collection;
(ii) the steps or actions taken by the respondent to
ensure the security and confidentiality of the data or
information; and,
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

(iii) the currency and accuracy of the data or
information held; and,
(c) Other allegations relevant to the resolution of the
proceeding.
A general denial of the allegations in the petition shall
not be allowed.
4.15.6. Instances when petition may be heard in
chambers
The filing of a petition for the writ of habeas data shall
not preclude the filing of separate criminal, civil or
administrative actions.
Pg.
149
4.16. CHANGE OF NAME (Rule 103)
Change of name is a special proceeding to establish
the status of a person involving his relation with
others, that is, his legal position in, or with regard to,
the rest of the community.

A hearing in chambers may be conducted where the 4.16.1. Differences under Rule 103, R.A. No. 9048
respondent invokes the defense that the release of and Rule 108.
the data or information in question shall compromise
national security or state secrets, or when the data or
information cannot be divulged to the public due to Rule 103 Rule 108 R.A. 9048
its nature or privileged character.
Change of Cancellation/C Clerical Error
4.15.7. Consolidation
name orrection of Act
Entries in Civil
When a criminal action is filed subsequent to the filing Registries
of a petition for the writ, the latter shall be
consolidated with the criminal action. Change of full Change or Change of first
name corrections in name and
When a criminal action and a separate civil action are (substantial the civil nickname and
filed subsequent to a petition for a writ of habeas corrections) entries, civil entries,
data, the petition shall be consolidated with the (substantial (only
criminal action. corretions) typographical
or clerical
After consolidation, the procedure under this Rule erros)
shall continue to govern the disposition of the reliefs
in the petition. Venue is RTC RTC or city or Local civil
of the province province registry office
4.15.8. Effect of filing of a criminal action in which the where of the city of
petitioner corresponding municipality
resides for 3 civil registry is where the
When a criminal action has been commenced, no
years prior to located record is being
separate petition for the writ shall be filed. The relief
the filing or in sought to be
under the writ shall be available to an aggrieved party the City of correct or
by motion in the criminal case. Manila, to change kept
Juvenile and
The procedure under this Rule shall govern the Domestic Local civil
disposition of the reliefs available under the writ of Relations registrar
habeas data. Court where the
interested
4.15.9. Institution of separate action party
presently
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

residing or 4.17.2. Who may file; when to file

domiciled
After the lapse of two (2) years from his disapperance
Philippine and without any news about the absentee or since
consulates the receipt of the last news, or of five (5) years in case
Pg.
the absentee has left a person in charge of the 150
Judicial Summary Administrative
administration of his property, the declaration of his
proceedings proceeding. proceedings
absence and appointment of a trustee or
Can be
converted to administrative may be applied for by any of the
adversarial if following:
there are
substantial a) The spouse present;
changes and
affect status of b) The heirs instituted in a will, who may present an
an individual authentic copy of the same.

File a signed Filed a verified File an affidavit c) The relatives who would succeed by the law of
and verified petition intestacy; and
petition
d) Those who have over the property of the absentee
some right subordinated to the condition of his death.

4.16.2. Grounds for change of name Opposition

The grounds for change of name under Rule 103 are
the following:
a. The name is ridiculous, tainted with dishonor
and extremely difficult to writ or pronounce
b. Consequences of change of status
c. Necessity to avoid confusion
d. Having continuously used and have been
known since childhood by Filipino name,
unaware of her alien parentage
e. A sincere desire to adopt a Filipino name to
erase signs of former alienage all in good
faith and without prejudicing anybody.
Anyone appearing to contest the petition shall state
in writing his grounds therefor, and serve a copy
thereof on the petitioner and other interested parties
on or before the date designated for the hearing. Sec.
5, Rule 107
Termination of administration.
The trusteeship or administration of the property of
the absentee shall cease upon order of the court in
any of the following cases:
a) When the absentee appears personally or by
means of an agent;

b) When the death of the absentee is proved and his

4.17. ABSENTEES (Rule 107) testate or intestate heirs appear;

4.17.1. Purpose of the rule
To allow the court to appoint an administrator or
representative to take care of the property of the
person who is sought to be judicially declared absent.
c) When a third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.
In these cases the trustee or administrator shall cease
in the performance of his office, and the property
 REMEDIAL LAW REVIEWER
shall be placed at the disposal of whose may have a
right thereto. Sec. 8, Rule 107
4.18 CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY (Rule 108)
4.18.1. Entries subject to cancellation or
correction under Rule 108, in relation to R.A.
No. 9048
Who may file the petition?
Any person interested in any act, event, order or
decree concerning the civil status of persons which
has been recorded in the civil register, may file a
verified petition for the cancellation or correction of
any entry relating thereto, with the Court of First
Instance of the province where the corresponding
civil registry is located.
Grounds:
Upon good and valid grounds, the following entries
in the civil register may be cancelled or corrected:
(a) births:
(b) marriage;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of marriage;
(f) judgments declaring marriages void from
the beginning;
(g) legitimations;
(h) adoptions;
(i) acknowledgments of natural children;
(j) naturalization;
(k) election, loss or recovery of citizenship;
(l) civil interdiction;
(m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and
Chapter IV Special Proceedings
(o) changes of name.
Notice and publication
Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the Pg.
same, and cause reasonable notice thereof to be 151
given to the persons named in the petition. The
court shall also cause the order to be published once
a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.
Order
After hearing, the court may either dismiss the
petition or issue an order granting the cancellation
or correction prayed for. In either case, a certified
copy of the judgment shall be served upon the civil
registrar concerned who shall annotated the same in
his record.
4.19. APPEALS IN SPECIAL PROCEEDINGS
(Rule 109)
4.19.1. Judgments and orders for which appeal
may be taken
Who may appeal-
An interested person may appeal in special
proceedings from an order or judgment rendered by
a Court of First Instance or a Juvenile and Domestic
Relations Court,
4.19.2. When to appeal
In cases of:
a) Allows or disallows a will;
b) Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
c) Allows or disallows, in whole or in part, any
claim against the estate of a deceased
person, or any claim presented on behalf of
the estate in offset to a claim against it;
 REMEDIAL LAW REVIEWER Chapter IV Special Proceedings

d) Settles the account of an executor, the estate may not be affected by the controversy or
administrator, trustee or guardian; appeal be distributed among the heirs or legatees,
e) Constitutes, in proceedings relating to the upon compliance with the conditions set forth in Rule
settlement of the estate of a deceased 90 of this rules.
person, or the administration of a trustee or Pg.
guardian, a final determination in the lower 152
court of the rights of the party appealing,
except that no appeal shall be allowed from
the appointment of a special administrator;
and
f) Is the final order or judgment rendered in
the case, and affects the substantial rights of
the person appealing unless it be an order
granting or denying a motion for a new trial
or for reconsideration.

4.19.3. Modes of appeal

Ordinary appeal - The appeal to the CA in cases

decided by the RTC in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon
the adverse party. No record on appeal shall be
required except in special proceedings and other
cases of multiple or separate appeals where the law
or the Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.

Petition for review The appeal to the CA in cases

decided by the RTC in the exercise of its appellate
jurisdiction shall be by petition for review in
accordance with Rule 42.

Petition for review on 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.

4.19.4. Rule on advance distribution

Advance distribution in special proceedings.

Notwithstanding a pending controversy or appeal in

proceedings to settle the estate of a decedent, the
court may, in its discretion and upon such terms as it
may deem proper and just, permit that such part of
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

Petitions for certiorari, prohibition and mandamus

V. CRIMINAL PROCEDURE against the CA and Sandiganbayan.

5.1. GENERAL MATTERS Concurrent jurisdiction

Criminal Procedure - A proceeding whereby the state
prosecutes a person for an act or omission punishable
by law.
Criminal Proceeding - proceedings before the trial
court from arraignment to rendition of judgment.
Pg.
a) with CA: petitions for certiorari, 153
prohibition and mandamus against RTC;
b) with CA and RTC: petitions for certiorari,
prohibition and mandamus against lower
courts;

Retroactive application of the rules c) with Sandiganbayan: petitions for

The crime was committed before the effectivity of the
Rules of Criminal Procedure; the rule should be
applied retroactively as it is favor to the appellant.
5.1.1. Distinguish jurisdiction over subject
matter from jurisdiction over person of the
accused
mandamus, prohibition, certiorari, habeas
corpus, injunction and ancillary writs in aid
of its appellate jurisdiction and over
petitions of similar nature, including quo
warranto arising or that may arise in cases
filed or which may be filed.
Exclusive appellate jurisdiction

By Petition for Review on Certiorari

Jurisdiction over Jurisdiction over the
subject matter person of the accused 1) from the CA;

Refers to the authority Refers to the authority 2) from the Sandiganbayan;

of the court to hear and of the court, not over
determine a particular the subject matter of 3) from the RTC where only an error or
criminal case the litigation, but over question of law is involved.
the person charged.
From the RTC in cases commenced therein, except
5.1.2. Requisites for exercise of criminal those appealable to the SC or the Sandiganbayan.
jurisdiction
By Petition for Review:
Requisites:
From the RTC in cases appealed thereto from
a. Jurisdiction over the subject matter the lower courts and not appealable to the
b. Jurisdiction over the territory Sandiganbayan.
c. Jurisdiction over the person of the accused

5.1.3. Jurisdiction of criminal courts

Court of Appeals

Supreme Court
Original exclusive

Original exclusive
Actions for annulment of judgments of the RTC
 REMEDIAL LAW REVIEWER
Concurrent jurisdiction
a) with the SC: petitions for certiorari,
prohibition and mandamus against RTC;
b) with SC and RTC: petitions for certiorari,
prohibition and mandamus against lower
courts.
Exclusive appellate jurisdiction
a) from the RTC in all criminal cases involving
offenses for which the penalty is reclusion
perpetua or life imprisonment, and those
involving 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;
b) Automatic review where death penalty is
imposed
Sandiganbayan
Original exclusive
a. Violations of R.A. 3019, as amended, R.A.
1379, and bribery and corruption offenses
under the Revised Penal Code, where one or
more of the accused are officials occupying
positions in the government, whether in a
permanent, acting or interim capacity, at the
time of the commission of the offense;
b. Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials
and employees mentioned in Sec. 4[a],1 PD
1606, as amended by R.A. 7975;
c. Criminal cases filed pursuant to and in
connection with EO Nos. 1, 2, 14, and 14-A.
Exclusive appellate jurisdiction
From the RTC in cases under PD1606, as amended by
PD 1861, whether or not the cases were decided by
them in the exercise of their original or appellate
jurisdictions.
Chapter V Criminal Procedure
Regional Trial Court
Original exclusive
a. All criminal cases which are not within the
exclusive jurisdiction of any court, tribunal or Pg.
154
body.
b. Penalty provided by law exceeds 6 years
imprisonment and which are not within the
exclusive jurisdiction of any court, tribunal or
body.
c. Jurisdiction over the whole complex crimes.
d. Criminal cases where on ne or more of the
accused is below 18 years of age but not less
than 9 years of age, or one or more victim is
a minor at the time of the commission of the
offense; ...
e. Cases against minors cognizable under the
Dangerous Drugs Acts, as amended;
f. Violation of RA 7610 (special protection of
children against child abuse, exploitation
and discrimination act) as amended by RA
7658
g. Cases of domestic violence against women
and children.
Exclusive Appellate
All cases decided by lower court in their respective
territorial jurisdictions.
Municipal Trial Court
Exclusive Original
a. Violation of city or municipal ordinances
committed within their respective territorial
jurisdictions;
b. All offenses punishable with imprisonment
of not more than 6 years irrespective of the
amount of fine, and in all cases of damage to
property through criminal negligence,
regardless of other penalties and the civil
liabilities arising therefrom; and
c. All offenses committed by public officers and
employees in relation to their office,
including GOCC, and by private individuals
 REMEDIAL LAW REVIEWER
charged as co-principal, accomplices or
accessories, punishable by not more than 6
years imprisonment.(except violation of RA
no. 3019 (anti-graft and corrupt practices
act);RA no. 1379 (act declaring forfeiture of
ill-gotten wealth of public officer and
employees) ARTS.210-212 of RPC (direct
bribery, indirect bribery and qualified
bribery)
Under the 1991 rules on summary procedure:
a. traffic violation;
b. violation of the rental law;
c. violation of city or municipal ordinances; and
d. .all offenses where the penalty does not
exceed 6 months imprisonment and/or
P1,000 fine, irrespective of other penalties
or civil liabilities arising therefrom, and in
offenses involving damage to property
through criminal negligence where the
impossible fine does not exceed P10,000.
5.1.4. When injunction may be issued to
restrain criminal prosecution
As a general rule, the courts will not issue writs of
prohibition or injunction preliminary or final, to
enjoin or restrain criminal prosecution.
Exceptions:
1. when the injunction is necessary to afford
adequate protection to the constitutional
rights of the accused;
2. when it is necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. when there is a prejudicial question which is
sub judice;
4. when the acts of the officer are without or in
excess of authority;
5. where the prosecution is under an invalid
law, ordinance or regulation;
6. when double jeopardy is clearly apparent;
Chapter V Criminal Procedure
7. where the Court has no jurisdiction over the
offense;
8. where it is a case of persecution rather than
prosecution;
9. where the charges are manifestly false and Pg.
motivated by the lust for vengeance; and 155
10. when there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied.
5.2. PROSECUTION OF CRIMINAL ACTION
(RULE 110)
5.2.1. Criminal actions, how instituted
(a) For offenses where a preliminary investigation is
required pursuant to section 1 of Rule 112, by filing
the complaint with the proper officer for the purpose
of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or
information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
with the office of the prosecutor. In Manila and other
chartered cities, the complaint shall be filed with the
office of the prosecutor unless otherwise provided in
their charters. Sec. 1 Rule 110.
The prescriptive period is tolled.
The institution of the criminal action shall interrupt
the running period of prescription of the offense
charged unless otherwise provided in special laws.
5.2.2. Who may file them, crimes that cannot be
prosecuted de officio
The crimes of adultery and concubinage
It shall not be prosecuted except upon a complaint
filed by the offended spouse. The offended party
cannot institute criminal prosecution without
including the guilty parties, if both alive, nor, in any
case, if the offended party has consented to the
offense or pardoned the offenders.
 REMEDIAL LAW REVIEWER
The offenses of seduction, abduction and acts of
lasciviousness
It shall not be prosecuted except upon a complaint
filed by the offended party or her parents,
grandparents or guardian, nor, in any case, if the
offender has been expressly pardoned by any of
them. If the offended party dies or becomes
incapacitated before she can file the complaint, and
she has no known parents, grandparents or guardian,
the State shall initiate the criminal action in her
behalf.
The offended party, even if a minor, has the right to
initiate the prosecution of the offenses of seduction,
abduction and acts of lasciviousness independently of
her parents, grandparents, or guardian, unless she is
incompetent or incapable of doing so.
Where the offended party, who is a minor, fails to file
the complaint, her parents, grandparents, or guardian
may file the same. The right to file the action granted
to parents, grandparents or guardian shall be
exclusive of all other persons and shall be exercised
successively in the order herein provided, except as
stated in the preceding paragraph.
Prosecution for defamation
No criminal action for defamation which consists in
the imputation of the offenses mentioned above shall
be brought except at the instance of and upon
complaint filed by the offended party.
Prosecution of violation of special laws
The prosecution for violation of special laws shall be
governed by the provisions thereof.
5.2.3. Criminal actions, when enjoined
See. 5.1.4.
Chapter V Criminal Procedure
5.2.4. Control of prosecution
All criminal actions either commenced by complaint
or by information shall be prosecuted under the
direction and control of a public prosecutor. Pg.
156
When a private prosecutor may be authorized to
prosecute the case:
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.
Extent of the authority given to the private
prosecutor when duly authorized to prosecute the
action
Once so authorized to prosecute the criminal action,
the private prosecutor shall continue to prosecute the
case up to end of the trial even in the absence of a
public prosecutor, unless the authority is revoked or
otherwise withdrawn. Sec. 5, Rule 110
5.2.5. Sufficiency of complaint or information
Complaint shown written statement charging a
person with an offense, subscribed by the offended
party, any peace officer, or other public officer
charged with enforcement of the law violated.
Information is an accusation in writing charging a
person with an offense subscribed by the prosecutor
and filed with court.
In Cudia vs CA, it was held that an infirmity in the
information, such as lack of authority of the officer
signing it, cannot be cured by silence, or even by
express consent and therefore, defective.
A complaint or information is sufficient if it states:
1. The name of the accused;
2. The designation of the offense given by the
statute;
 REMEDIAL LAW REVIEWER
3. The acts or omissions complained of as
constituting the offense;
4. The name of the offended party;
5. The approximate date of the commission of
the offense; and
6. The place where the offense was committed.
When an offense is committed by more than one
person, all of them shall be included in the complaint
or information. Sec. 6, Rule 110.
How to state the name of the accused
The complaint or information must state the name
and surname of the accused or any appellation or
nickname by which he has been or is known. If his
name cannot be ascertained, he must be described
under a fictitious name with a statement that his true
name is unknown.
If the true name of the accused is thereafter disclosed
by him or appears in some other manner to the court,
such true name shall be inserted in the complaint or
information and record
5.2.6. Designation of offense
The complaint or information shall state the
designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and
specify its qualifying and aggravating circumstances.
If there is no designation of the offense, reference
shall be made to the section or subsection of the
statute punishing it. Sec. 8, Rule 110
In Malto vs People, it was held that the failure to
designate the offense by the statue or to mention
specific provision penalizing the act or an erroneous
specification of the law violated does not vitiates the
information if the facts alleged clearly receive the
facts constituting the crime.
5.2.7. Cause of the accusation
The acts or omissions complained of as constituting
the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise
language and not necessarily in the language used in
Chapter V Criminal Procedure
the statute but in terms sufficient to enable a person
of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment Pg.
157
5.2.8. Duplicity of the offense; exception
General rule: A complaint or information must charge
but one offense
Exception: except when the law prescribes a single
punishment for various offenses.
5.2.9. Amendment or substitution of complaint
or information
Amendment without leave of court
A complaint or information may be amended, in form
or in substance, without leave of court, at any time
before the accused enters his plea.
Amendment with leave of court
After the plea and during the trial, a formal
amendment may only be made with leave of court
and when it can be done without causing prejudice to
the rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or
information, can be made only:
1. Upon motion by the prosecutor,
2. With notice to the offended party and
3. With leave of court.
The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all
parties, especially the offended party.
Substitution of the complaint or information
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.
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

In such case, the court shall dismiss the original 5.2.10. Venue of criminal actions
complaint for information once the new one charging
the proper offense is filed provided that the accused Subject to existing laws, the criminal action shall be
will not be placed in double jeopardy. instituted and tried in the court of the municipality or
territory where the offense was committed or where Pg.
any of its essential ingredients occurred. 158
Amendment Substitution
Where an offense is committed in a train, aircraft, or
1. Involve either
1. Necessarily other public or private vehicle while in the course of
formal and
involves a its trip
substantial
substantial
changes
change from The criminal action shall be instituted and tried in the
2. Amendment the original court of any municipality or territory where such
before plea has change. train, aircraft or other vehicle passed during such its
been entered can 2. Substitution of
trip, including the place of its departure and arrival.
be effected the
without leave of information
Where an offense is committed on board a vessel in
court must be with
leave of court the course of its voyage
3. When the
as the original
amendment is only information The criminal action shall be instituted and tried in the
as to form, there is has to be court of the first port of entry or of any municipality
no need for dismissed or territory where the vessel passed during such
another 3. Another voyage, subject to the generally accepted principles
preliminary preliminary
of international law.
investigation and investigation is
entailed and
the retaking of the Crimes committed outside the Philippines but
the accused
plea of the accused has to plead punishable under Article 2 of the Revised Penal Code
4. Refers to the same anew to the
offense charged in new The criminal action shall be cognizable by the court
the original information where the criminal action is first filed
information or to 4. This
presupposes 5.2.11. Intervention of offended party
an offense which is
that a new
necessarily information
included in the Where the civil action for recovery of civil liability is
involves
original charge. instituted in the criminal action pursuant to Rule 111,
different
offense which the offended party may intervene by counsel in the
does not prosecution of the offense.
include or is
not necessarily This is because the person convicted of a crime is also
included in the civilly liable.
original
charge, hence,
the accused
cannot claim
double
jeopardy.
 REMEDIAL LAW REVIEWER
5.3. PROSECUTION OF CIVIL ACTION (RULE
111)
5.3.1. Rule on implied institution of civil action
with criminal action
When a criminal action is instituted, the civil action
for the recovery of civil liability arising from the
offense charged shall be deemed instituted with the
criminal action unless the offended party waives the
civil action, reserves the right to institute it separately
or institutes the civil action prior to the criminal
action. Sec. 1, Rule 111.
When there is no implied institution of the civil
action:
a. When the offended party waives the civil
action
b. When the offended party reserves the right
to institute civil action separately
c. When the offended party institutes the civil
action prior to criminal action.
Note the above rule has no application to
independent civil actions under Art. 32, 33, 34, and
2176 of the Civil Code.
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.
Note there is no reservation of civil action in cases
under B.P. 22.
5.3.2. When civil action may proceed
independently
Civil actions referred to in Art. 32, 33, 34, and 2176 of
the Civil Code shall remain separate, distinct, and
independent of any criminal prosecution which may
be based on the same act. Philippine Rabbit Bus Lines
vs People.
5.3.3. When separate civil action is suspended
Chapter V Criminal Procedure
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
Pg.
If the criminal action is filed after the said civil action 159
has already been instituted
The latter shall be suspended in whatever stage it
may be found before judgment on the merits. The
suspension shall last until final judgment is rendered
in the criminal action.
Consolidation of criminal action
Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with
the criminal action in the court trying the criminal
action.
Effect of the consolidation in the evidence already
presented
In case of consolidation, the evidence already
adduced in the civil action shall be deemed
automatically reproduced in the criminal action
without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the
offended party in the criminal case and of the parties
to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided
jointly.
Prescription of the civil action
During the pendency of the criminal action, the
running of the period of prescription of the civil action
which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. (n)
Effect of acquittal or the extinction of penal action
on the civil action or civil liability
 REMEDIAL LAW REVIEWER
General rule: the extinction of the penal action does
not carry with it extinction of the civil action where:
a. The acquittal is based on reasonable doubt
as only preponderance of evidence is
required
b. The court declares that the liability of the
accused is just civil
c. The civil liability of the accused does not
arise from or is not based upon the crime of
which the accused is acquitted.
However, the civil action based on delict shall be
deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or
omission from which the civil liability may arise did
not exist.
Effect of payment of civil liability
Payment of civil liability does not extinguish criminal
liability.
5.3.4. Effect of death of the accused or convict
on civil action
The death of the accused after arraignment and
during the pendency of the criminal action shall
extinguish the civil liability arising from the delict.
However, the independent civil action instituted
under section 3 of this Rule or which thereafter is
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 said estate, as the case
may be. The heirs of the accused may be substituted
for the deceased without requiring the appointment
of an executor or administrator and the court may
appoint a guardian ad litem for the minor heirs. Sec.
4, Rule 111.
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice.
Chapter V Criminal Procedure
If the accused dies before arraignment, the case shall
be dismissed without prejudice to any civil action the
offended party may file against the estate of the
deceased. Sec. 4, Rule 111.
Pg.
5.3.5. Prejudicial question 160
A petition for suspension of the criminal action based
upon the pendency of a prejudicial question in a civil
action may be filed in the office of the prosecutor or
the court conducting the preliminary investigation.
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests Sec. 6, Rule 111
Ratio to avoid two conflicting decisions in civil case
and in the criminal case.
The suspension does not include dismissal
The rule authorizing the suspension of the criminal
case does not prescribe the dismissal of the criminal
action. It only authorizes its suspension. The
suspension shall be made upon the filing of petition
of suspension. Yap vs Paras 205 SCRA 625
Elements of prejudicial question:
The elements of a prejudicial question are:
(a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised
in the subsequent criminal action, and
(b) the resolution of such issue determines whether
or not the criminal action may proceed
5.3.6. Rule on filing fees in civil action deemed
instituted with the criminal action
Filing fees apply when the damages are being claimed
by the offended party.
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved,
 REMEDIAL LAW REVIEWER
which shall be considered as the actual damages
claimed.
Where the complaint or information also seeks to
recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay
additional filing fees based on the amounts alleged
therein.
If the amounts are not so alleged but any of these
damages are subsequently awarded by the court, the
filing fees based on the amount awarded shall
constitute a first lien on the judgment. Sec. 1[b] Rule
111.
5.4. PRELIMINARY INVESTIGATION (RULE
112)
Preliminary investigation - 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
Scope
Except as provided in section 7 of this Rule, a
preliminary investigation is required to be conducted
before the filing of a complaint or information for an
offense where the penalty prescribed by law is at
least four (4) years, two (2) months and one (1) day
without regard to the fine.
5.4.1. Nature of right
It is a mere statutory right and not a constitutional
right. However, it becomes a component of due
process in criminal justice. Domoral vs
Sandiganbayan, 117 SCRA 354
The right to preliminary investigation may be waived
for failure to invoke the right prior or at the time of
plea. People vs Gomez, 117 SCRA73
Chapter V Criminal Procedure
5.4.2. Purposes of preliminary investigation
a. To avoid indiscriminate filing of criminal
charges
b. To declog court dockets
Pg.
5.4.3. Who may conduct determination of 161
existence of probable cause
The following may conduct preliminary
investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations
shall include all crimes cognizable by the proper court
in their respective territorial jurisdictions.
Probable cause such facts and circumstances as
would lead a person of ordinary caution and
prudence to entertain a honest and strong suspicion
that the person charged is guilty of the crime subject
of the investigation.
It is not a determination of guilt, but rather to
determine whether the case should proceed to trial.
The preliminary investigation shall be conducted in
the following manner:
a. The complaint shall state the address of the
respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as
well as other supporting documents to establish
probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies
for the official file.
The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to
 REMEDIAL LAW REVIEWER
administer oath, or, in their absence or unavailability,
before a notary public, each of who must certify that
he personally examined the affiants and that he is
satisfied that they voluntarily executed and
understood their affidavits.
b. Within ten (10) days after the filing of the
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its
supporting affidavits and documents.
Right of the defendant to examine
The respondent shall have the right to examine the
evidence submitted by the complainant which he may
not have been furnished and to copy them at his
expense. If the evidence is voluminous, the
complainant may be required to specify those which
he intends to present against the respondent, and
these shall be made available for examination or
copying by the respondent at his expense.
Objects as evidence need not be furnished a party but
shall be made available for examination, copying, or
photographing at the expense of the requesting
party.
Respondent to file counter affidavit
Within ten (10) days from receipt of the subpoena
with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other
supporting documents relied upon for his defense.
The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to
file a motion to dismiss in lieu of a counter-affidavit.
Chapter V Criminal Procedure
If the respondent cannot be subpoenaed
If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating Pg.
officer shall resolve the complaint based on the 162
evidence presented by the complainant.
Conduct of preliminary hearing
The investigating officer may set a hearing if there are
facts and issues to be clarified from a party or a
witness.
The parties can be present at the hearing but without
the right to examine or cross-examine. They may,
however, submit to the investigating officer
questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other
documents or from the expiration of the period for
their submission. It shall be terminated within five (5)
days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for
trial. (3a)
5.4.4. Resolution of investigation prosecutor
If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution
and information.
He shall certify under oath in the information:
that he, or as shown by the record, an authorized
officer, has personally examined the complainant and
his witnesses;
a. that there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
 REMEDIAL LAW REVIEWER
b. that the accused was informed of the
complaint and of the evidence submitted
against him; and that he was given an
opportunity to submit controverting
evidence.
Otherwise, he shall recommend the dismissal of the
complaint.
5.4.5. Review
Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit
the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy in
cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction, for appropriate
action.
The resolution shall state the findings of facts and the
law supporting his action, together with the record of
the case which shall include:
(a) the warrant, if the arrest is by virtue of a warrant;
(b) the affidavits, counter-affidavits and other
supporting evidence of the parties;
(c) the undertaking or bail of the accused and the
order for his release;
(d) the transcripts of the proceedings during the
preliminary investigation; and
(e) the order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records,
the provincial or city prosecutor, or the Ombudsman
or his deputy, as the case may be, shall review the
resolution of the investigating judge on the existence
of probable cause.
Their ruling shall expressly and clearly state the facts
and the law on which it is based and the parties shall
be furnished with copies thereof. They shall order the
Chapter V Criminal Procedure
release of an accused who is detained if no probable
cause is found against him
5.4.6. When warrant of arrest may issue
Pg.
By the Regional Trial Court. 163
Within ten (10) days from the filing of the complaint
or information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting
evidence.
Judicial determination of probable cause
He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary
investigation or when the complaint or information
was filed pursuant to section 7 of this Rule.
In case of doubt by the judge; order of presentation
of additional evidence
In case of doubt on the existence of probable cause,
the judge may order the prosecutor to present
additional evidence within five (5) days from notice
and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of
information
By the municipal trial court
When required pursuant to the second paragraph of
section 11086 of this Rule, the preliminary
investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court shall be conducted by the
prosecutor. The procedure for the issuance of a
warrant of arrest by the judge shall be governed by
paragraph (a)1087 of this section.
 REMEDIAL LAW REVIEWER
5.4.7. Cases not requiring a preliminary
investigation
If filed with the prosecutor.
If the complaint is filed directly with the prosecutor
involving an offense punishable by imprisonment of
less four (4) years, two (2) months and one (1) day,
the procedure outlined in section 3(a) of this Rule
shall be observed. The prosecutor shall act on the
complaint based on the affidavits and other
supporting documents submitted by the complainant
within ten (10) days from its filing.
If filed with the Municipal Trial Court.
If the complaint or information is filed directly with
the Municipal Trial Court or Municipal Circuit Trial
Court for an offense covered by this section, the
procedure in section 3(a) of this Rule shall be
observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable
cause after personally evaluating the evidence, or
after personally examining in writing and under oath
the complainant and his witnesses in the form of
searching question and answers, he shall dismiss the
same. He may, however, require the submission of
additional evidence, within ten (10) days from notice,
to determine further the existence of probable cause.
If the judge still finds no probable cause despite the
additional evidence, he shall, within ten (10) days
from its submission or expiration of said period,
dismiss the case. When he finds probable cause, he
shall issue a warrant of arrest, or a commitment order
if the accused had already been arrested, and hold
him for trial. However, if the judge is satisfied that
there is no necessity for placing the accused under
custody, he may issue summons instead of a warrant
of arrest.
5.4.8. Remedies of accused if there was no
preliminary investigation
a. To hold in abeyance the proceedings and
order the prosecutor to hold preliminary
investigation.
Chapter V Criminal Procedure
b. If the case has been conducted, the accused
may within five (5) days from the time he
learns of its filing ask for a preliminary
investigation. Sec. 3, 2000 NPS Rule on
Appeal, DOJ Circular No. 70 Pg.
The five - day period to file the motion for preliminary 164
investigation is mandatory, and an accused is entitled
to ask for preliminary investigation by filing the
motion within the said period
Appeal to the Secretary of Justice, filing of petition
or review
The appeal shall be taken within 15 days from the
receipt of the assailed decision. If motion for
reconsideration has been filed within 15 days from
the receipt, the appeal shall be taken within 15 days
from the receipt of the denial. Only one motion for
reconsideration is allowed.
An appeal is made by filing a petition for review with
the Office of the Secretary, Department of Justice.
The Secretary of Justice may reverse, affirm or modify
the said resolution. He may also motu propio or upon
motion dismiss the review on the following grounds:
a. The appeal is filed beyond prescription
b. The procedure under D.C. No. 70 was not
complied with
c. There is no showing of reversible error, or
that the accused was already arraigned
d. The appealed decision is in interlocutory in
nature, except when it suspends the
proceedings based on the alleged existence
of prejudicial question
e. The offense is already prescribed
f. Other grounds for dismissal, see. Sec. 13, of
D.C. 70
In assailing the adverse decision of the Secretary of
Justice, use Petition for Certiorari under Rule 65.
Bautista vs CA, July 6, 2001
Note, if any case the information is already filed in
court while the appeal in Secretary of Justice is
pending, the latter proceedings will already be moot
and academic.
 REMEDIAL LAW REVIEWER
5.4.9. Inquest
It is a 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.
Such proceedings must terminate within the period
prescribed under Art. 125 of the Revised Penal Code
unless the accused opted for preliminary
investigation, in which case, he must sign a waiver for
the Art. 125 of the RPC.
5.5. ARREST (RULE 113)
5.5.1. Arrest, how made
Arrest - the taking of a person into custody in order
that he may be bound to answer for the commission
of an offense. Sec. 1, Rule 113.
An arrest is made by an actual restraint of a person to
be arrested, or by his submission to the custody of the
person making the arrest. Sec. 2, Rule 113.
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
Warrant of arrest - is a legal process issued by
competent authority directing the arrest of a person
or persons upon grounds stated therein. It usually
directed to a regular officer of the law, but
occasionally, it is issued to a private person named in
it.
5.5.2. Arrest without warrant, when lawful
A peace officer or a private person may, without a
warrant, arrest a person:
Chapter V Criminal Procedure
In flagrante delicto,
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense; Pg.
165
Requisites for in flagrante delicto
1. The person to be arrested must execute an
over act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime
2. Such act is done in the presence or within
the view of arresting officer.
Hot pursuit
(b) When an offense has just been committed, and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and;
Requisites for hot pursuit:
1. the offense has just been committed
2. The person making the arrest has personal
knowledge of the facts indicating that the
person to be arrested has just committed.
Escapee; fugitive from justice
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
Flight while on bail exception
(d). An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of
the court where the case is pending. Sec. 23, Rule
114
 REMEDIAL LAW REVIEWER
5.5.3. Method of arrest
a) By officer with warrant
When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of the
cause of the arrest and of the fact that a warrant has
been issued for his arrest, Sec. 7, Rule 113
Exception: when he flees or forcibly resists before the
officer has opportunity to so inform him, or 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
b) By officer without warrant
When making an arrest without a warrant, the officer
shall inform the person to be arrested of his authority
and the cause of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued
immediately after its commission, has escaped, flees
or forcibly resists before the officer has opportunity
so to inform him, or when the giving of such
information will imperil the arrest. Sec. 8, Rule 113
c) By private person
When making an arrest, a private person shall inform
the person to be arrested of the intention to arrest
him and cause of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued
immediately after its commission, or has escaped,
flees, or forcibly resists before the person making the
arrest has opportunity to so inform him, or when the
giving of such information will imperil the arrest Sec.
9, Rule 113
Rights of the person arrested (RA 7348):
1. The right to be assisted by counsel at all
times
2. The right to remain silent
3. The right to be informed of the above rights
Chapter V Criminal Procedure
4. The right to be visited by the immediate
members of his family, by his counsel, or by
non-governmental organization, national or
international.
5.5.4. Requisites of a valid warrant of arrest Pg.
166
The head of the office to whom the warrant of arrest
was delivered for execution shall cause the warrant to
be executed within ten (10) days from its receipt.
Within ten (10) days after the expiration of the
period, the officer to whom it was assigned for
execution shall make a report to the judge who issued
the warrant. In case of his failure to execute the
warrant, he shall state the reasons therefor.
It shall be the duty of the officer executing the
warrant to arrest the accused and to deliver him to
the nearest police station or jail without unnecessary
delay.
Waiver of illegality of the arrest; effect
A warrantless arrest is not jurisdictional defect and
any objection to it is waived when the person
arrested submits to arraignment without any
objections.
If the appellants are questioning their arrest for the
first time on appeal, they are, therefore, deemed to
have waived their right to the constitutional
protection against illegal arrests and searches. People
vs Aminola, GR 178062
Time of making an arrest
The arrest may be made on any day and at any time
of the day or night.
Persons not subject to arrest
According to Sec. 11, Article VI, of the 1987
Constitution provides that a senator or member of
the House of Representatives, shall, in all offenses
punishable by not more than six years of
imprisonment, be privileged while the congress is in
session.
 REMEDIAL LAW REVIEWER
But this does not apply if the congress is not in
session.
5.5.5. Determination of probable cause for issuance
of warrant of arrest
It is constitutionally mandated that a warrant of
arrest shall issue only upon finding of probable cause
personally determined by the judge after
examination under oath or affirmation of the
complainant and the witness he/she may produce,
and particular describing the person to be seized.
Sec. 2, Art. III, of the 1987 Constitution.
5.5.6. Distinguish probable cause of fiscal from
that of a judge
The determination of probable cause for purposes of
issuing the warrant of arrest is made by the judge. It
is a judicial function.
The preliminary investigation proper, whether or not
there is a reasonable ground to believe that the
accused is guilty of the offense charged is the function
of investigating prosecutor. It is executive function.
5.6. BAIL (RULE 114)
5.6.1. Nature
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 the conditions hereinafter
specified. Bail may be given in the form of corporate
surety, property bond, cash deposit, or recognizance.
Sec. 1, Rule 114
The righto bail is a constitutional right. It is personal
in nature, and is therefore, waivable. A bail
application does not only involve the right of the
accused to temporary liberty, but likewise the right of
the State to protect the people an the peace of the
community from dangerous elements.
Chapter V Criminal Procedure
Forms of bail
Corporate surety this is bail furnished by the
corporation.
Pg.
Any domestic or foreign corporation, licensed as a 167
surety in accordance with law and currently
authorized to act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of the
corporation duly authorized by its board of directors.
Property bond it is an undertaking constituted as
lien on the real property given as security for the
amount of bail.
A property bond is an undertaking constituted as lien
on the real property given as security for the amount
of the bail. Within ten (10) days after the approval of
the bond, the accused shall cause the annotation of
the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if
unregistered, in the Registration Book on the space
provided therefor, in the Registry of Deeds for the
province or city where the land lies, and on the
corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Sec. 11, Rule 114.
Within the same period, the accused shall submit to
the court his compliance and his failure to do so shall
be sufficient cause for the cancellation of the
property bond and his re-arrest and detention.
The qualification of sureties in a property bond shall
be as follows:
(a) Each must be a resident owner of real estate
within the Philippines;
(b) Where there is only one surety, his real estate
must be worth at least the amount of the
undertaking;
(c) If there are two or more sureties, each may justify
in an amount less than that expressed in the
undertaking but the aggregate of the justified sums
 REMEDIAL LAW REVIEWER
must be equivalent to the whole amount of bail
demanded. Sec. 12, Rule 114.
Cash deposit the bail may also be in the form of
cash.
The accused or any person acting in his behalf may
deposit in cash with the nearest collector or internal
revenue or provincial, city, or municipal treasurer the
amount of bail fixed by the court, or recommended
by the prosecutor who investigated or filed the case.
Upon submission of a proper certificate of deposit
and a written undertaking showing compliance with
the requirements of section 2 of this Rule, the
accused shall be discharged from custody. The money
deposited shall be considered as bail and applied to
the payment of fine and costs while the excess, if any,
shall be returned to the accused or to whoever made
the deposit
Recognizance this I san obligation of record entered
into before some court or magistrate duly authorized
to take it, with the condition to do some particular
act, the most usual condition in criminal case being
appearance of the accused in trial.
Whenever allowed by law or these Rules, the court
may release a person in custody to his own
recognizance or that of a responsible person Sec. 14,
Rule 114.
5.6.2. When a matter of right; exceptions
All persons in custody shall be admitted to bail as a
matter of right, with sufficient sureties, or released on
recognize as prescribed by law or this Rule
a. before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and
b. before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment.
Chapter V Criminal Procedure
5.6.3. When a matter of discretion
Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment, admission to bail is Pg.
discretionary. 168
The application for bail may be filed and acted upon
by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original
record to the appellate court.
If the decision of the trial court convicting the
accused changed the nature of the offense from
non-bailable to bailable
The application for bail can only be filed with and
resolved by the appellate court.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years
The accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution, with
notice to the accused, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated
by the circumstance of reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under
probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that he may commit
another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion
of any party, review the resolution of the Regional
 REMEDIAL LAW REVIEWER
Trial Court after notice to the adverse party in either
case.
5.6.4. Hearing of application for bail in capital
offenses
Capital offense - is an offense which, under the law
existing at the time of its commission and of the
application for admission to bail, may be punished
with death.
No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of
the criminal prosecution.
However, the accused may apply for a bail by proving
that the evidence is not strong.
Burden of proof in bail application
At the hearing of an application for bail filed by a
person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or
life imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong. The evidence
presented during the bail hearing shall be considered
automatically reproduced at the trial, but upon
motion of either party, the court may recall any
witness for additional examination unless the latter is
dead, outside the Philippines, or otherwise unable to
testify. Sec. 8, Rule 114
5.6.5. Guidelines in fixing amount of bail
The judge who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
a. Financial ability of the accused to give bail;
b. Nature and circumstances of the offense;
c. Penalty for the offense charged;
d. Character and reputation of the accused;
e. Age and health of the accused;
Chapter V Criminal Procedure
f. Weight of the evidence against the accused;
g. Probability of the accused appearing at the
trial;
h. Forfeiture of other bail;
i. The fact that accused was a fugitive from Pg.
justice when arrested; and 169
j. Pendency of other cases where the accused
is on bail.
Excessive bail shall not be required.
5.6.6. Bail when not required
No bail shall be required when the law or these Rules
so provide.
When a person has been in custody for a period equal
to or more than the possible maximum imprisonment
prescribe for the offense charged, he shall be
released immediately, without prejudice to the
continuation of the trial or the proceedings on appeal.
If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after
thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than
the minimum of the principal penalty prescribed for
the offense charged, without application of the
Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail or
on his own recognizance, at the discretion of the
court.
5.6.7. Increase or reduction of bail
After the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its
amount. When increased, the accused may be
committed to custody if he does not give bail in the
increased amount within a reasonable period. Sec.
20, Rule 114
An accused held to answer a criminal charge, who is
released without bail upon filing of the complaint or
information, may, at any subsequent stage of the
proceedings and whenever a strong showing of guilt
appears to the court, be required to give bail in the
 REMEDIAL LAW REVIEWER
amount fixed, or in lieu thereof, committed to
custody Sec. 20, Rule 114
5.6.8. Forfeiture and cancellation of bail
Duty of the bondsman
When the presence of the accused is required by the
court or these Rules, his bondsmen shall be notified
to produce him before the court on a given date and
time.
If the accused fails to appear in person as required
His bail shall be declared forfeited and the bondsmen
given thirty (30) days within which to produce their
principal and to show cause why no judgment should
be rendered against them for the amount of their bail.
Within the said period, the bondsmen must:
(a) produce the body of their principal or give the
reason for his non-production; and
(b) explain why the accused did not appear before the
court when first required to do so.
Effect of failure to comply with the requisites
Failing in these two requisites, a judgment shall be
rendered against the bondsmen, jointly and severally,
for the amount of the bail. The court shall not reduce
or otherwise mitigate the liability of the bondsmen,
unless the accused has been surrendered or is
acquitted.
Upon application of the bondsmen, with due notice
to the prosecutor, the bail may be cancelled upon
surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled
upon acquittal of the accused, dismissal of the case,
or execution of the judgment of conviction.
In all instances, the cancellation shall be without
prejudice to any liability on the bond.
Chapter V Criminal Procedure
5.6.9. Application not a bar to objections in
illegal arrest, lack of or irregular preliminary
investigation
An application for or admission to bail shall not bar Pg.
the accused from challenging the validity of his arrest 170
or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of
a preliminary investigation of the charge against him,
provided that he raises them before entering his plea.
The court shall resolve the matter as early as
practicable but not later than the start of the trial of
the case
5.6.10. Hold departure order & Bureau of
Immigration watchlist
The authority to issue hold departure orders is limited
to the RTCs in criminal cases within their exclusive
jurisdiction. SC Cir. No. 39-97 dated June 19, 1997
MTC judges have no authority to issue hold-departure
orders, following the maxim, express mention
implies the exclusion. Neither does he have
authority to cancel one which he issued.
5.7. RIGHTS OF THE ACCUSED (RULE 115)
5.7.1. Rights of accused at the trial
In all criminal prosecutions, the accused shall be
entitled to the following rights:
(a) To be presumed innocent until the
contrary is proved beyond reasonable
doubt.
(b) To be informed of the nature and cause
of the accusation against him.
(c) To be present and defend in person and
by counsel at every stage of the proceedings,
from arraignment to promulgation of the
REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

judgment. The accused may, however, waive (i) To appeal in all cases allowed and in the
his presence at the trial pursuant to the manner prescribed by law.
stipulations set forth in his bail, unless his
presence is specifically ordered by the court Prima facie presumption of guilt
for purposes of identification. The absence Pg.
of the accused without justifiable cause at San example of this presumption is found in Sec. 3(j) 171
the trial of which he had notice shall be of Rule 131, which provides that a person found in
considered a waiver of his right to be present possession of a thing taken in the doing of a wrongful
thereat. When an accused under custody act is the taker and the doer of the whole act.
escapes, he shall be deemed to have waived
Prosecution must rest on its own merits
his right to be present on all subsequent trial
dates until custody over him is regained.
5.7.2. Rights of persons under custodial
Upon motion, the accused may be allowed
investigation
to defend himself in person when it
sufficiently appears to the court that he can
Custodial investigation It is the stage where the
properly protect his right without the
police investigation is no longer a general inquiry into
assistance of counsel.
an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police to
(d) To testify as a witness in his own behalf
carry out a process of interrogation that lends itself to
but subject to cross-examination on matters
elicit incriminating statements.
covered by direct examination. His silence
shall not in any manner prejudice him.
It shall include the practice of issuing an "invitation"
to a person who is investigated in connection with an
(e) To be exempt from being compelled to be
offense he is suspected to have committed, without
a witness against himself.
prejudice to the liability of the "inviting" officer for
any violation of law.
(f) To confront and cross-examine the
witnesses against him at the trial. Either
The rights of a person under custodial investigation
party may utilize as part of its evidence the
are the following:
testimony of a witness who is deceased, out
of or can not with due diligence be found in
(a) Any person arrested detained or under custodial
the Philippines, unavailable or otherwise
investigation shall at all times be assisted by counsel.
unable to testify, given in another case or
proceeding, judicial or administrative,
(b) Any public officer or employee, or anyone acting
involving the same parties and subject
under his order or his place, who arrests, detains or
matter, the adverse party having the
investigates any person for the commission of an
opportunity to cross-examine him.
offense shall inform the latter, in a language known
to and understood by him, of his rights to remain
(g) To have compulsory process issued to
silent and to have competent and independent
secure the attendance of witnesses and
counsel, preferably of his own choice, who shall at all
production of other evidence in his behalf.
times be allowed to confer privately with the person
arrested, detained or under custodial investigation. If
(h) To have speedy, impartial and public trial.
such person cannot afford the services of his own
counsel, he must be provided with a competent and
 REMEDIAL LAW REVIEWER
independent counsel by the investigating
officer.lawphi1
(c) 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.
(d) 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.
(e) Any waiver by a person arrested or detained under
the provisions of Article 125 of the Revised Penal
Code, or under custodial investigation, shall be in
writing and signed by such person in the presence of
his counsel; otherwise the waiver shall be null and
void and of no effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences
with any member of his immediate family, 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 non-governmental
organization duly accredited by the Commission on
Human Rights of by any international non-
governmental organization duly accredited by the
Office of the President. The person's "immediate
family" shall include his or her spouse, fianc or
fiance, parent or child, brother or sister,
Chapter V Criminal Procedure
grandparent or grandchild, uncle or aunt, nephew or
niece, and guardian or ward.
Pg.
5.8. ARRAIGNMENT AND PLEA (RULE 116) 172
Arraignment a formal mode and manner of
implementing the constitutional right of the accused
to be informed of the nature and cause of accusation
against him. 5.8.1. Arraignment and plea, how made
Without prior arraignment, the accused cannot
invoke double jeopardy.
Remedy of the accused before arraignment and plea
1. Bill of particulars under Sec. 9, Rule 116 of
Rules of Court
2. Suspension of arraignment , Sec. 11, Rule
116
3. Motion to quash
4. Challenge the validity of the arrest or
illegality of the warrant issued or assail the
regularity or question the absence of
preliminary investigation charge, Sec. 26,
Rule 114.
Plea made before a court with no jurisdiction
A plea made before a court that has no jurisdiction
over the criminal action does not give rise to double
jeopardy. Zapatos vs People, 411 SCRA 148
How arraignment is made
The accused must be arraigned before the court
where the complaint or information was filed or
assigned for trial. The arraignment shall be made in
open court by the judge or clerk by furnishing the
accused with a copy of the complaint or information,
reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses
other than those named in the complaint or
information.
 REMEDIAL LAW REVIEWER
The accused must be present
The accused must be present at the arraignment and
must personally enter his plea. Both arraignment and
plea shall be made of record, but failure to do so shall
not affect the validity of the proceedings
When the private offended party must appear
The private offended party shall be required to
appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other
matters requiring his presence. 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.
5.8.2. When should plea of not guilty be
entered
The plea of not guilty may should be entered in the
following cases:
1. When the accused pleaded guilty
2. When the accused refuses to plead
3. Makes a conditional plea,
4. When the accused pleads guilty but presents
exculpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty
shall be entered for him
5. When the accused so pleaded guilty here in
admitting the act charged, he sets up
matters of defense or with a lawful
justification
6. When the plea is indefinite or ambiguous.
5.8.3. When may accused enter a plea of guilty to a
lesser offense
At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed
by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged.
Sec. 2, Rule 116
Chapter V Criminal Procedure
Requisites:
1. It is made at the arraignment
2. With the consent of the offended party
3. With the consent of the prosecutor
Pg.
4. Offense which is necessarily included in the
173
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
5.8.4. Accused pleads guilty to capital offense,
what the court should do
When the accused pleads guilty to a capital offense
The court shall conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea and require the prosecution
to prove his guilt and the precise degree of culpability.
The accused may present evidence in his behalf
5.8.5. Searching inquiry
Upon motion of the accused showing good cause and
with notice to the parties, the court, in order to
prevent surprise, suppression, or alteration, may
order the prosecution to produce and permit the
inspection and copying or photographing of any
written statement given by the complainant and
other witnesses in any investigation of the offense
conducted by the prosecution or other investigating
officers, as well as any designated documents,
papers, books, accounts, letters, photographs,
objects or tangible things not otherwise privileged,
which constitute or contain evidence material to any
matter involved in the case and which are in the
possession or under the control of the prosecution,
police, or other law investigating agencies. Sec. 10,
Rule 116.
 REMEDIAL LAW REVIEWER
5.8.6. Improvident plea
Improvident plea - A plea against his will or without
his consent.
At any time before the judgment of conviction
becomes final, the court may permit an improvident
plea of guilty to be withdrawn and be substituted by
a plea of not guilty. Sec. 5, Rule 116
5.8.7. Grounds for suspension of arraignment
1. Upon motion by the proper party, the
arraignment shall be suspended in the
following cases:
2. The accused appears to be suffering from an
unsound mental condition which effective
renders him unable to fully understand the
charge against him and to plead intelligently
thereto. In such case, the court shall order
his mental examination and, if necessary, his
confinement for such purpose;
3. There exists a prejudicial question; and
4. A petition for review of the resolution of the
prosecutor is pending at either the
Department of Justice, or the Office of the
President; provided, that the period of
suspension shall not exceed sixty (60) days
counted from the filing of the petition with
the reviewing office. (12a)
5.9. MOTION TO QUASH (RULE 117)
Motion to quash a motion for the dismissal of the
complaint or information based on the grounds
stated in Sec. 3, Rule 117.
When to file motion to quash
At any time before entering his plea, the accused may
move to quash the complaint or information
Chapter V Criminal Procedure
Motion of quash not allowed in summary procedure;
exception
A motion to quash is generally not allowed in a
summary procedure Pg.
174
Exceptions:
Lack of jurisdiction over subject matter
Failure to comply with barangay conciliation
proceedings
Forms and contents of motion to quash
1. The motion must comply with the following
requisites:
2. The motion to quash shall be in writing
3. Signed by the accused or his counsel and
4. Shall distinctly specify its factual and legal
grounds.
The court shall consider no ground other than those
stated in the motion, except lack of jurisdiction over
the offense charged.
5.9.1. Grounds
A complaint or information may be subject to a
motion to quash on any of the following grounds:
1. That the facts charged do not constitute an
offense;
2. That the court trying the case has no
jurisdiction over the offense charged;
3. That the court trying the case has no
jurisdiction over the person of the accused;
4. That the officer who filed the information
had no authority to do so;
5. That it does not conform substantially to the
prescribed form;
6. That more than one offense is charged
except when a single punishment for various
offenses is prescribed by law;
7. That the criminal action or liability has been
extinguished;
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

8. That it contains averments which, if true, Absence of preliminary investigation is not also a
would constitute a legal excuse or ground for motion to quash, Rodis vs
justification; and Sandiganbayan, GR. 71404
9. That the accused has been previously
convicted or acquitted of the offense General rule: Grounds not asserted in the motion to Pg.
charged, or the case against him was quash are waived. 175
dismissed or otherwise terminated without
his express consent. Exceptions:

a. The facts charged do not constitute an

offense
5.9.2. Distinguish from demurrer to evidence b. That the court trying the case has no
jurisdiction over the offense charged
Motion to quash Demurrer to Evidence c. The criminal action or liability has been
extinguished
d. Double jeopardy
Filed before the Filed after the
accused files his plea prosecution rests his 5.9.3. Effects of sustaining the motion to quash
case
Does not require prior
If the motion to quash is sustained, the court may
leave of court Can be filed with or
order that another complaint or information be filed
without leave of court
except as provided in section 6 of this rule. If the order
Grounds are under Sec.
is made, the accused, if in custody, shall not be
3, of Rule 117. The ground is
discharged unless admitted to bail.
insufficiency of
When granted, a evidence
f no order is made or if having been made, no new
dismissal will not
information is filed within the time specified in the
necessarily follow. The It is deemed as acquittal
order or within such further time as the court may
court may order filing of and would preclude the
allow for good cause, the accused, if in custody, shall
new complaint or filing of information or
be discharged unless he is also in custody for another
information. an appeal by
charge.
prosecution
In case of denial with
5.9.4. Exception to the rule that sustaining the
GAD, certiorari is the As a general rule, it is
remedy. not reviewable by an motion is not a bar to another prosecution
appeal for certiorari
General rule: An order sustaining the motion to
before judgment.
quash is not a bar to another prosecution of the same
Execution of affidavit of desistance is not a ground offense.
for motion to quash
Exceptions:
The execution of the offended party of an affidavit of a. The criminal action has been extinguished
desistance is not a ground for motion to quash a b. That the accused has been previously
complaint or information because it is not among the convicted or acquitted or the offense
grounds. charged, or the case against him was
dismissed or otherwise dismissed without
his consent (double jeopardy)
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5.9.5. Double jeopardy The provisional dismissal of offenses punishable by

Sec. 2, Art. II of the 1987 states that, No person shall
be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law or an ordinance,
conviction or acquittal under either shall constitute a
bar to another prosecution for the same act.
Double jeopardy refers to jeopardy of punishment
for the same offense, suggesting that double jeopardy
presupposes two separate criminal prosecution.
Requisites of double jeopardy:
a. The first jeopardy must have attached prior
to the second
b. The first jeopardy must have been validly
terminated
c. The second jeopardy must be for the same
offense or the second offense includes or is
necessarily included in the offense charged
in the first information, or is an attempt to
commit the same or a frustration thereof.
imprisonment not exceeding six (6) years or a fine of
any amount, or both, shall become permanent one
(1) year after issuance of the order without the case
having been revived. With respect to offenses Pg.
punishable by imprisonment of more than six (6) 176
years, their provisional dismissal shall become
permanent two (2) years after issuance of the order
without the case having been revived Sec. 8, Rule 117
5.10. PRE-TRIAL (RULE 118)
In criminal cases, pre-trial is mandatory in the
following courts:
a. Sandiganbayan
b. Regional Trial Courts
c. Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court,
Municipal Circuit Trial Court. Sec. 1, Rule 118
Pre-trial in civil cases vs pre-trial in criminal case

Pre-trial in civil cases Pre-trial in criminal

When deemed the first jeopardy attached the
cases
second action
1. Preceded by a
a. The accused has been convicted or motion ex parte 1. No motion is
acquitted, or the case against him was filed by the plaintiff required
to set the case for 2. Pre-trial is held
dismissed or terminated without his express
pre-trial. after arraignment
consent 2. It is set after the within 30 days
b. That the conviction, acquittal, dismissal, was requisite motion from the date the
made by a court of competent jurisdiction from the plaintiff court acquires
c. There is a valid complaint or information, or after all pleadings juridiction over the
other formal charge sufficient in form and have been served person of the
substance to sustain a conviction and filed accused, unless a
3. One of the purpose shorter period is
d. The accused has pleaded to the charge
is amicable provide by the
e. Subsequent prosecution for the offense. settlement and special laws or
submission to circular of the
5.9.6. Provisional dismissal Alternative Dispute supreme court.
Resolution. 3. No purpose of
4. The sanction for amicable
A case shall not be provisionally dismissed except non-appearance is settlement or
with the express consent of the accused and with imposed upon the submission to
notice to the offended party. non-appearing Alternative Dispute
party Resolution.
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

5. They are required 4. The penalty is During the pre-trail, the trial judge shall consider plea-
to file pre-trial against the counsel bargaining agreements except in cases for violations
briefs or prosecutor upon of Comprehensive Dangerous Dugs Act of 2002. I-B
6. Pre-trial shall be whom proper
[5], AM No. 03-1-09-SC
recorded, but does sanctions or
not require to be in penalties may be Pg.
If plea bargaining is agreed upon, the court shall: 177
signed by the imposed.
accused and the 5. Does not require a. Issue an order to that effect
counsel. pre-trial briefs
b. Proceed to receive evidence on the civil
6. All agreements and
admissions made aspect of the case
or entered shall not c. Render and promulgate judgment on
only be reduced in conviction including civil liability or damages
writing and signed duly established.
by the accused and
Duty of the judge if the plea bargaining fails
counsel, otherwise,
not admissible.
The judge shall

a. adopt the minutes of preliminary conference

When pre-trial shall be conducted
The court shall after arraignment and within thirty
(30) days from the date the court acquires jurisdiction
over the person of the accused
Exception: a shorter period is provided for in special
laws or circulars of the Supreme Court.
5.10.1. Matters to be considered during pre-
trial
a. plea bargaining;
b. stipulation of facts;
c. marking for identification of evidence of the
parties;
d. waiver of objections to admissibility of
evidence;
e. modification of the order of trial if the
accused admits the charge but interposes a
lawful defense; and
f. other matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case. (secs. 2 and 3, cir. 38-98)
5.10.2. What the court should do when prosecution
and offended party agree to the plea offered by the
accused
as part of pre-trial proceedings,
b. confirm the markings of exhibits, admission
of genuineness and due execution of
documents,
c. list object and testimonial evidence,
d. scrutinize every allegation in the
information,
e. scrutinize affidavits and documents forming
parts of the record of preliminary
investigation,
f. define factual issues,
g. ask parties to agree on specific dates for trial,
require the parties to submit the names
addresses and contact numbers of the
witness summoned,
h. consider modification of trial if the accused
admits the charge but interpose lawful
defense.
5.10.3. Pre-trial agreement
All agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise,
they cannot be used against the accused.
The agreements covering the matters referred to in
section 1 of this Rule shall be approved by the court.
 REMEDIAL LAW REVIEWER
5.10.4. Non-appearance during pre-trial
If the counsel for the accused or the prosecutor does
not appear at the pre-trial conference and does not
offer an acceptable excuse for his lack of cooperation,
the court may impose proper sanctions or penalties.
5.10.5. Pre-trial order
Within 10 days after the termination of the pre-trial,
the judge shall issue a pre-trial odder, reciting:
a. the actions taken,
b. the facts stipulated, and
c. evidence marked.
Such order shall bind the parties, limit the trial to
matters not disposed of, and control the course of the
action during the trial, unless modified by the court to
prevent manifest injustice. Sec. 4, Rule 118.
5.10.6. Referral of some cases for court
annexed mediation and judicial dispute
resolution
States in the judicial proceedings with JDR,
confidentiality
a. from the filing of a complaint, to the conduct
of Court-Annex Mediation, and JDR during
the pre-trial stage
b. pre-trial order to trial and judgment
The judge to whom the case has been originally
raffled shall preside over the first stage. He shall be
called the JDR judge. Parties will be more
spontaneous once they are assured that the JDR
judge will not be the one to try the case. AS such, the
general rule is that the JDR shall not preside over the
trial of the same case when the meditation did not
succeed.
The JDR acts as mediator, conciliator and neutral
valuator as the conditions may warrant, in order to
effect a settlement of a case.
Cases subject to mediation of JDR.
Chapter V Criminal Procedure
a. All civil cases, settlement of estates, and
cases covered by the Rules on Summary
Procedure, except those by which the law
may not be compromised.
Pg.
Criminal cases like violation of traffic rules and 178
regulation of municipal or city ordinances although
included in the cases under summary procedure
should not be mediated because they cannot be
compromised and might be a source of corruption if
compromised though.
b. Cases cognizable by the Lupong
Tapamapayapa under the Kataraungang
Pambarangay Law
c. Civil aspect of BP. 22
d. Civil aspect of quasi-offenses under Title 14
of the RPC
e. Civil aspect of estafa and libel
f. Civil aspect of Theft under Art. 308 of RPC.
5.11. TRIAL (RULE 119)
When trial shall commence
After a plea of not guilty is entered, the accused shall
have at least fifteen (15) days to prepare for trial.
The trial shall commence within thirty (30) days from
receipt of the pre-trial order.
Summary of periods
Arraignment within 30 days from the date the court
acquires jurisdiction over the accused, but the time of
pendency of the motion to quash or for a bill of
particulars or other causes justifying the suspension
of the arraignment shall b excluded.
Pre-trial after arraignment and within 30 days from
the date the court acquires jurisdiction over the
person of the accused unless a shorter period is
provided in special laws or circulars.
 REMEDIAL LAW REVIEWER
Trial the general period applicable is 30 days from
the receipt of pre-trial order.
Postponement or continuance
Factors for granting continuance:
The following factors, among others, shall be
considered by a court in determining whether to
grant a continuance under section 3(f) of this Rule.
(a) Whether or not the failure to grant a
continuance in the proceeding would likely
make a continuation of such proceeding
impossible or result in a miscarriage of
justice; and
(b) Whether or not the case taken as a whole
is so novel, unusual and complex, due to the
number of accused or the nature of the
prosecution, or that it is unreasonable to
expect adequate preparation within the
periods of time established therein.
Prohibited grounds for continuance
In addition, no continuance under section 3(f) of this
Rule shall be granted because of congestion of the
court's calendar or lack of diligent preparation or
failure to obtain available witnesses on the part of the
prosecutor. Sec. 4, Rule 119.
Order or trial:
The trial shall proceed in the following order:
(a) The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
(b) The accused may present evidence to
prove his defense, and damages, if any,
arising from the issuance of a provisional
remedy in the case.
Chapter V Criminal Procedure
(c) The prosecution and the defense may, in
that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue. Pg.
179
(d) Upon admission of the evidence of the
parties, the case shall be deemed submitted
for decision unless the court directs them to
argue orally or to submit written
memoranda. Sec. 11, Rule 119.
Modification of the order of trial, reverse trial.
When the accused admits the act or omission charged
in the complaint or information but interposes a
lawful defense, the order of trial may be modified.
Sec. 11[e], Rule 119.
Reopening of the proceedings
At any time before finality of the judgment of
conviction, the judge may, motu proprio or upon
motion, with hearing in either case, reopen the
proceedings to avoid a miscarrage of justice. The
proceedings shall be terminated within thirty (30)
days from the order grating it Sec. 24, Rule 119.
5.11.1. Instances when presence of accused is
required by law
In the following instances, the presence of the
accused is required:
a. at arraignment and plea, whether of
innocence or guilt
b. during trial, whenever necessary for
identification purposes
c. at the promulgation of sentence, unless it is
for a light offense, in which case, the accused
may appear on counsel or representative. At
such stages of proceedings, his presence is
required and cannot be waived. People vs
Joven de Grano, GR. No.167710.
 REMEDIAL LAW REVIEWER
5.11.2. Requisite before trial can be suspended
on account of absence of witness
Requisites:
a. The witness is material
b. The party who applies for postponement is
not in neglect
c. The witness can be had at the time to which
the trial has been deferred; and
d. No similar evidence could be obtained.
5.11.3. Trial in absentia
The accused can only be tried in absentia with the
following requisites:
a. The accused has been already arraigned
b. The accused has been duly notified of the
trial or hearings
c. The absence of he accused or his failure to
appear is unjustified
5.11.4. Remedy when accused is not brought to
trial within the prescribed period
Effect of not bring the accused o trial within the
prescribed period
The information may be dismissed on the ground of
his right to speedy trial. The accused has the burden
of proving the same.
The motion for dismissal must be made prior to trial,
otherwise the failure to do so shall be deemed a
waiver of the right to have the charge dismissed. Sec.
9, Rule 119.
On prosecution, on the other hand, shall go forward
with the evidence to establish the the delay belongs
to the exclusion of time mentioned in Sec. 3, of Rule
119.
Chapter V Criminal Procedure
Exclusions:
Any period of delay resulting from other proceedings
concerning the accused, including but not limited to
the following: Pg.
180
(1) Delay resulting from an examination of
the physical and mental condition of the
accused;
(2) Delay resulting from proceedings with
respect to other criminal charges against the
accused;
(3) Delay resulting from extraordinary
remedies against interlocutory orders;
(4) Delay resulting from pre-trial
proceedings; provided, that the delay does
not exceed thirty (30) days;
(5) Delay resulting from orders of inhibition,
or proceedings relating to change of venue
of cases or transfer from other courts;
(6) Delay resulting from a finding of the
existence of a prejudicial question; and
(7) Delay reasonably attributable to any
period, not exceed thirty (30) days, during
which any proceeding which any proceeding
concerning the accused is actually under
advisement.
Any period of delay resulting from the absence or
unavailability of an essential witness.
Continuous trial
Trial once commenced shall continue from day to day
as far as practicable until terminated. It may be
postponed for a reasonable period of time for good
cause.
 REMEDIAL LAW REVIEWER
The court shall, after consultation with the prosecutor
and defense counsel, set the case for continuous trial
on a weekly or other short-term trial calendar at the
earliest possible time so as to ensure speedy trial.
The trial period
In no case shall the entire trial period exceed one
hundred eighty (180) days from the first day of trial,
except as otherwise authorized by the Supreme
Court.
The time limitations provided under this section and
the preceding section shall not apply where special
laws or circulars of the Supreme Court provide for a
shorter period of trial.
5.11.5. Requisites for discharge of accused to
become a state witness
The court, after hearing may direct that one or more
of the accused be discharged, if th court is satisfied
that:
a. There is absolute necessity for the testimony
of the accused whose discharge is requested
b. That there is no other direct evidence
available for proper prosecution fo the
offense committed, except on the testimony
of the accused
c. The testimony of the said accused can be
substantially corroborated in its material
points
d. Said accused does not appear to be the most
guilty
e. The said accused has not at any time been
convicted of an offense involving moral
turpitude.
5.11.6. Effects of discharge of accused as state
witness
The discharge of an accused shall amount to acquittal
and shall be a bar to another prosecution for the same
offense.
Chapter V Criminal Procedure
Exception if the accused fails or refuses to testify
against his co-accused in accordance with his own
statement constituting the offense charged.
5.11.7. Demurrer to evidence Pg.
181
After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or
without leave of court.
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce evidence
in his defense. When the demurrer to evidence is filed
without leave of court, the accused waives the right
to present evidence and submits the case for
judgment on the basis of the evidence for the
prosecution. (15a)
The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and shall
be filed within a non-extendible period of five (5) days
after the prosecution rests its case. The prosecution
may oppose the motion within a non-extendible
period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the
demurrer to evidence within a non-extendible period
of ten (10) days from notice. The prosecution may
oppose the demurrer to evidence within a similar
period from its receipt.
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not
be reviewable by appeal or by certiorari before
judgment. Sec. 23, Rule 119.
 REMEDIAL LAW REVIEWER
5.12. JUDGMENT (RULE 120)
Judgment in criminal case - is the adjudication by the
court that the accused is guilty or not guilty of the
offense charged and the imposition on him of the
proper penalty and civil liability, if any.
5.12.1. Requisites of a judgment
The following are the formal requisites for a valid
judgment:
a. It must be written in the official language,
b. Personally and directly prepared by the
judge
c. Signed by him and shall contain clearly and
distinctly a statement of the facts and the
law upon which it is based.
5.12.2. Contents of judgment
The judgment for conviction shall state:
a. The legal qualification of the offense
constituted by the acts committed by the
accused;
b. The aggravating and mitigating
circumstances which attended the
commission of the offense
c. The participation of the accused in the
offense whether as principal, accomplice or
accessory
d. The penalty imposed upon the accused
e. The civil liability or damages caused by his
wrongful act or omission to be recovered
from the accused by the offended party, if
there is any, unless the enforcement of the
civil liability a separate action has been
reserved or waived.
A judgment of acquittal shall;
a. State whether or not the evidence of
prosecution:
I. Absolutely failed to prove the guilt
of the accused
II. Merely failed to prove his guilt
beyond reasonable doubt
Chapter V Criminal Procedure
b. Determine if the act or omission from which
the civil liability might arise does not exist
A verdict of acquittal is immediately final. People vs
Serrano, 315 SCRA 686
Pg.
5.12.3. Promulgation of judgment; instances of 182
promulgation of judgment in absentia
Promulgation of judgment
The judgment is promulgated by reading it in the
presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is
for a light offense, the judgment may be pronounced
in the presence of his counsel or representative.
When the judge is absent or outside of the province
or city, the judgment may be promulgated by the
clerk of court. Sec. 6, Rule 120.
If the accused is confined or detained in another
province or city, the judgment may be promulgated
by the executive judge of the Regional Trial Court
having jurisdiction over the place of confinement or
detention upon request of the court which rendered
the judgment. The court promulgating the judgment
shall have authority to accept the notice of appeal
and to approve the bail bond pending
appeal; provided, that if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the application
for bail can only be filed and resolved by the appellate
court. Sec. 6, Rule 120.
How the accused is notified
The proper clerk of court shall give notice to the
accused personally or through his bondsman or
warden and counsel, requiring him to be present at
the promulgation of the decision. If the accused
tried in absentia because he jumped bail or escaped
from prison, the notice to him shall be served at his
last known address.
 REMEDIAL LAW REVIEWER
If the accused fails to appear in the promulgation of
judgment
In case the accused fails to appear at the scheduled
date of promulgation of judgment despite notice, the
promulgation shall be made by recording the
judgment in the criminal docket and serving him a
copy thereof at his last known address or thru his
counsel.
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 these rules against
the judgment and the court shall order his arrest.
Within fifteen (15) days from promulgation of
judgment, however, the accused may surrender and
file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence
at the scheduled promulgation and if he proves that
his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15)
days from notice
5.12.4. When does judgment become final (four
instances)
Four instances when judgment becomes final:
b. After the lapse of the period perfecting an
appeal
c. When the sentence has been partially or
totally satisfied or served
d. Went the accused has waived in writing his
right to appeal
5.13. NEW TRIAL OR RECONSIDERATION
(RULE 121)
If the judgment is adverse to the accused, he may file
a motion for new trial or motion for reconsideration.
The court, however, need not to wait for motion from
the accused, because it may, at its own instance,
grant a new trial or reconsideration of judgment but
with the consent of the accused. Sec. 1, Rule 121.
Chapter V Criminal Procedure
5.13.1. Grounds for new trial
A new trial shall be granted only based on the
following grounds:
Pg.
a. That errors of law have been committed
183
during trial
b. That irregularities prejudicial to the
substantive rights of the accused have been
committed during the trial
c. That new and material evidence has been
discovered, Sec. 2 Rule 121.
5.13.2. Grounds for reconsideration
A motion for reconsideration of judgment shall be
granted on the following grounds:
a. Errors of law in the judgment which requires
no further proceedings
b. Errors of fact which also requires no further
proceedings, Sec. 3, Rule 121.
Forms of the motions
It shall be in writing and shall state the facts on which
it is based.
If base on newly-discovered evidence, the motion
shall be supported by affidavits of witness by whom
such evidence is expected to be given or by duly
authenticated copies of documents which are
proposed to be introduced in evidence. Sec. 4, Rule
121.
Notice of the motion
Notice of motion for new trial or reconsideration shall
be given to the prosecutor. Sec. 4, Rule 121.
When hearing of motion is required
A hearing shall be conducted when the motion or new
trial calls for resolution of questions of fact. The
court may hear evidence on motion by affidavits or
otherwise. Sec. 5, Rule 121.
 REMEDIAL LAW REVIEWER
5.13.3. Requisites before a new trial may be
granted on ground of newly-discovered
evidence
For a newly discovered evidence to be a justifiable
ground for a new trial, the following need to concur:
a. The evidence must have been discovered
after the trial
b. It could not have been previously discovered
and produced at the trial even with the
exercise of reasonable diligence
c. It is a new and material evidence
5.13.4. Effects of granting a new trial or
reconsideration
The effects would depend upon the ground availed of
in the granting the new trial, thus:
a. When the new trial was granted on the
grounds of errors of law or irregularities
during the trial, al the proceedings and
evidence affected thereby shall be:
a. Set aside
b. Taken anew and the court, in
interest of justice, may allow
additional evidence.
b. When the new trial is granted on the ground
of newly-discovered evidence, the evidence
already adduced shall stand. The newly-
discovered evidence together with other
evidence which the court may allow in the
interest of justice, shall be taken and
considered together with evidence already
in record.
c. In all cases, when a new trial or
reconsideration is granted, the original
judgment shall be set aside or vacated and
new judgment shall be rendered
accordingly.
Chapter V Criminal Procedure
5.13.5. Application of Neypes doctrine in
criminal cases
The Supreme Court held in the case of Judith Yu vs
Samson-Tatad, The Neypes Rule applies to appeals in Pg.
criminal cases. 184
The rule in Neypes provides To standardize the
appeal periods provided in the Rules and to afford
litigant fair opportunity to appeal their cases, the
Court deemed it practical to allow a fresh period of
15 days from whcih to file the notice of appeal in the
Regional Trial Court, counted from the receipt of
order dismissing a motion for new trial or
consideration.
5.14. APPEAL ( Rule 122, 124, 125)
Appeal is not a natural right
The right of appeal is not a natural right nor a part of
due process but merely statutory privilege and may
be exercised only in the manner in accordance with
the provisions of law.
Who may appeal
Any party may appeal from a judgment or final order,
unless the accused will be placed in double jeopardy
5.14.1. Effect of an appeal
Upon perfection of the appeal, the execution of the
judgment or order appealed from is stayed as to the
appealing party. Sec. 11[c], Rule 121
Appeal from the civil aspect
The civil appeal of the offended party does not affect
the criminal aspect of the judgment or order
appealed from.
Upon perfection of the appeal, the trial court loses
jurisdiction over the case, except:
a. To issue orders for the protection and
preservation of the rights of the parties
 REMEDIAL LAW REVIEWER
b. which do not involve any matter litigated by
the appeal;
c. To approve compromises offered by the
parties prior to the transmission of the
records on appeal to the appellate court.
5.14.2. Where to appeal
The appeal may be taken as follows:
a. To the Regional Trial Court, in cases decided
by the Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court;
b. To the Court of Appeals or to the Supreme
Court in the proper cases provided by law, in
cases decided by the Regional Trial Court;
and
c. To the Supreme Court, in cases decided by
the Court of Appeals. Sec. 2, Rule 112.
5.14.3. How appeal taken
Appeal to the Regional Trial Court or to Court of
Appeals
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 taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed
from and by serving a copy thereof upon the adverse
party.
Appeal to the Court of Appeals in cases decided by
Regional trial Court
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.
The appeal to the Supreme Court in cases where the
penalty imposed by the Regional Trial Court is a
capital punishment
Chapter V Criminal Procedure
The appeal to the Supreme Court in cases where the
penalty imposed by the Regional Trial Court is
death, reclusion perpetua, or life imprisonment, or
where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out Pg.
of the same occurrence that gave rise to the more 185
serious offense for which the penalty of
death, reclusion perpetua, or life imprisonment is
imposed, shall be by filing a notice of appeal in
accordance with paragraph (a) of this section.
When no notice of appeal is necessary
No notice of appeal is necessary in cases where the
death penalty is imposed by the Regional Trial Court.
The same shall be automatically reviewed by the
Supreme Court as provided in section 10 of this Rule.
When Petition for Review on Certiorari under Rule
45 be taken
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 Rules 45
5.14.4. Effect of appeal by any of several
accused
An appeal taken by one or more several accused shall
not affect those who did not appeal.
Except insofar as the judgment of the appellate
court is favorable and applicable to the latter.
5.14.5. Grounds for dismissal of appeal
The Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the
appellant in either case, dismiss the appeal if the
appellant fails to file his brief within the time
prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
The Court of Appeals may also, upon motion of the
appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

bail or flees to a foreign country during the pendency before issuing warrant produce in determining
of the appeal. of arrest. probable cause before
issuing search warrant.
Arrest may be made on
any day and at any time It is generally served in Pg.
5.15. SEARCH AND SEIZURE (RULE 126) of the day or night day time, unless here 186
be a direction in the
5.15.1. Nature of search warrant search warrant that it
may be served at any
Search warrant - is an order in writing issued in the time or day and night.
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 therein
and bring it before the court. 5.15.3. Application for search warrant, where
filed
Search warrant is not a criminal action nor does it
represent commencement of a criminal prosecution An application for search warrant shall be filed with
even if is entitled like criminal action. the following:

1. Any court within whose territorial

It is a special and peculiar remedy, drastic in nature,
jurisdiction a crime was committed.
made necessary for public necessity.
2. For compelling reasons stated in the
The application for search warrant is heard ex parte. application, any court within the judicial
It is neither trial nor part of trial. region where the crime was committed if the
place of the commission of the crime is
5.15.2. Distinguish from warrant of arrest known, or any court within the judicial
region where the warrant shall be enforced.
3. If the criminal action has already been filed,
Warrant of Arrest Search Warrant
the application shall only be made in the
court where the criminal action is pending.
Concerned with the Search may follow an
seizure of the person arrest but search must Requisites for issuance of search warrant:
be incident to a lawful
Determination of arrest. a. There must be a probable cause in
probable cause must connection with one offense
have sufficient facts in Probable cause requires b. The presence of probable cause is to
his hand that would facts to show that determine by judge personally
tend to show that a particular things c. The determination by the judge must be
crime has been connected with a crime made after an examination under oath or
committed and that a are found in a specific affirmation of the complainant and the
particular person location witness he may produce
committed it. d. The warrant must specifically describe the
The judge must place to be search and the things to be
Not required to make personally examine the seized which may be anywhere in the
personal examination complainant and the Philippines, Sec. 4, Rule 126
witnesses he may
 REMEDIAL LAW REVIEWER
5.15.4. Probable cause
Probable cause in search warrants means such facts
and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense
has been committed and the objects ought in the
connection with the offense are in the place to be
searched.
5.15.5. Personal examination by judge of the
applicant and witnesses
In determining probable cause, oath required must
refer to the truth of facts within the personal
knowledge of the application or his witness, because
the purpose thereof is to convince the magistrate, not
the individual making affidavit and seeking the
issuance of the warrant of the probable cause.
How examination shall be conducted by the judge
a. The examination must be personally
conducted by the judge
b. The examination must be in form of
searching questions and answers
c. The complainant and the witness shall be
examined on those facts personally known
to them
d. The statements must be in writing and
under oath
e. The sworn statements of the complainant
and the witness, together with the affidavits
submitted, shall be attached in the record.
Sec. 5, Rule 126.
Doctrine of the fruit of the poisonous tree- did not
comply with the requisites of the law, therefore, void,
or when the search made without warrant is
unjustifiable, whether it is found or discovered
afterwards, cannot be used as evidence against the
suspect.
Chapter V Criminal Procedure
5.15.6. Particularity of place to be searched and
things to be seized
The Sec. 4, Rule 126 requires that the applicant must
particularly describe the place to be searched and the Pg.
things to be seized, 187
Ratio for the turtle to prevent general exploratory
searches which reasonably interfere with ones right
to privacy.
General warrants warrants which do not describe
the tings to be seized with required particularity. They
are void warrants.
5.15.7. Personal property to be seized
In Yao vs People, it was held that the law 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 the control
and possession of the property sought to be seized.
5.15.8. Exceptions to search warrant
requirement
a) Search incidental to lawful arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant. Sec. 13, Rule
126.
Limitation of the search incidental to lawful arrest:
a. only for dangerous weapons
b. for anything which may have been used in
the commission of an offense
c. anything which constitute proof in the
commission of the offense
However, in case of search after lawful arrest, the
search is not limited to the things in connection with
the commission of the offense.
 REMEDIAL LAW REVIEWER
b) Consented search
Jurisprudence requires that in case of consented
searches or waiver of constitutional guarantee
against obstructive searches, it is fundamental that to
constitute waiver, it must appear that:
1. The right exists
2. The person involved had knowledge, either
actual or constructive, of th existence of
such right
3. The said person had an intention to
relinquish such right. People vs Nuevas, 516
SCRA 463
c) Search of moving vehicle
A warrantless search of a moving vehicle is justified
on the ground that it is not practicable to secure a
warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant
is ought. People vs Tuazon, 532 SCRA 152
In recognition of the possible abuse, jurisprudence
dictates that all times, it is required that probable
cause exist in the order to justify the warrantless
arrest of the vehicle.
Checkpoints
Searches conducted in checkpoints are valid for as
long as they are warranted by exigencies of public
order and conducted in a way least intrusive to
motorist. People vs Ninvecario, 420 SCRA 280
e) Plain view situation
Under the plain view doctrine, objects falling in the
plain view of an officer who has a right to be in the
position to have that view are subject to seizure and
may be presented as evidence.
Chapter V Criminal Procedure
The plain view doctrine applies when the following
requisites concur:
a. the law enforcement officer in search of the
evidence has a prior justification for an
Pg.
intrusion or is in a position from which he
188
can view a particular area;
b. the discovery of the evidence in plain view is
inadvertent; and
c. it is immediately apparent to the officer that
the item he observes may be evidence of a
crime, contraband or otherwise subject to
seizure. Judge Felimon Abelita III vs P/Supt.
German Doria, GRA N0. 170672
f) Stop and frisk situation
This is also known as Terry doctrine.
It is of two parts: the stop and the risk. A valid
stop by an officer requires that he has reasonable
articulable belief that criminal activity happened or is
about to happen.
The frisk made after the stop must be done because
of the reasonable belief that the person stopped is in
possession of a weapon that will pose a danger to the
officer and others. The risk must be a mere pat down
outside the persons outer garment and not
unreasonable intrusive.
Terry search and search incidental to a lawful arrest
The terry stop is not full arrest. The terry doctrine as
originally formulated, does not require proof of
probable cause and the person is not under a full scale
arrest but mere belief, investigate to stop followed by
a surface, non-instrusive pat down of ones outer
garments to determine presence of weapons.
g) Enforcement of custom laws
Exercise of Power of Seizure and Arrest.
It shall be within the power of a customs official or
person authorized as aforesaid, and it shall be his
duty, to make seizure of any vessel, aircraft, cargo,
 REMEDIAL LAW REVIEWER
articles, animal or other movable property when the
same is subject to forfeiture or liable for any fine
imposed under customs and tariff laws, and also to
arrest any person subject to arrest for violation of any
customs and tariff laws, such power to be exercised
in conformity with the law and the provisions of this
Code. Sec. 2205 Tariffs and Customs Law .
h) Remedies from unlawful search and seizure
Motion to quash search warrant or to suppress
evidence
A motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed in
and acted upon only by the court where the action
has been instituted. If no criminal action has been
instituted, the motion may be filed in and resolved by
the court that issued the search warrant.
If such court failed to resolve the motion and a
criminal case is subsequent filed in another court, the
motion shall be resolved by the latter court. Sec. 14,
Rule 126.
Who may assail the issuance of a search warrant
The legality of the seizure can be contested only by
the party show rights have been impaired thereby,
and the objection to an unlawful search and seizure is
purely personal and cannot be availed of by third
parties.
Petition for certiorari for unwarranted quashal or
search warrant
The Court held that the special civil action for
certiorari was the proper recourse availed by the
respondent in assailing the quashal of search warrant.
The Court had allowed even direct resource to the
Court or to the Court of appeals via special civil action
for certiorari from the trial courts quashal of search
warrant.
Chapter V Criminal Procedure
5.16. PROVISIONAL REMEDIES (RULE 127)
5.16.1. Nature Pg.
189
The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in connection
with the civil action deemed instituted with the
criminal action. Sec. 1, Rule 127
To avail of provisional remedy in a criminal action, it
must be one with a corresponding civil liability.
5.16.2. Kinds of provisional remedies
Attachment; when available
When the civil action is properly instituted in the
criminal action as provided in Rule 111, 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:
(a) When the accused is about to abscond
from the Philippines;
(b) 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 officer,
officer of a corporation, 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;
(c) When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
(d) When the accused resides outside the
Philippines. Sec. 2, Rule 127
 REMEDIAL LAW REVIEWER Chapter V Criminal Procedure

Note that the grounds for preliminary attachment in

criminal case are not as varied as the grounds or
preliminary attachment in civil case.

Under Civil procedure, the following provisional Pg.

remedies are available: 190

1. Injunction
2. Receivers
3. Replevin
4. Support Pedente Lite

The provisional remedies in civil actions, insofar as

they are applicable, may be availed of in connection
with the civil action deemed instituted with the
criminal action
 REMEDIAL LAW REVIEWER Chapter VI Evidence

VI. EVIDENCE f. Other cases not herein provided for.

g. Labor cases
h. Impeachment cases
6.1. GENERAL PRINCIPLES (Rule 128)

6.1.1. Concept of evidence When can the rules be applicable in these kinds of Pg.
proceedings? 191

Evidence is the means, sanctioned by the rules of

Court, of ascertaining in judicial proceeding the truth Only by analogy or in suppletory character, and
respecting matter of fact. whenever practicable or convenient.

Evidence is also secured by resorting to modes of General rule is that administrative agencies are not
discovery, such as: bound by the technical rules of evidence.

1. Taking of depositions of any person oral or
written
2. Serving interrogatories to parties
3. Serving requests for admissions by the
adverse party
4. Production and inspection of documents
5. Examination of physical and mental
conditions of persons.
A matter may also be proved by means of affidavit,
such as motions based on facts not appearing on
record, in cases covered by the Rules of Summary
Procedure, and those filed in administrative or quasi-
judicial bodies.
Technical rules of procedure and evidence are not
strictly applied in administrative cases and
administrative due process cannot be fully equated
with due process in strict judicial terms.
Thus, formal offer of evidence is not applicable to a
case involving naturalization. Ong Chia vs Republic.
Also, in Sasan Sr, vs NLRC, the NLRC may still receive
evidence for the first time on appeal for the case
elevated to them from the Labor Arbiter. The
submission of additional evidence on appeal does not
prejudice the other party for the latter could submit
counter-evidence.

Also in the same case, it has been held that best

6.1.2. Scope of the Rules on Evidence
evidence rule under Sec.3 Rule 130 does not apply in
labor proceedings.
The rules of evidence is guided by the principle of
uniformity. As a rule, the rule on evidence shall be
Even if not bound by the technical rules of procedure,
same in all courts and in al l trials and hearings. Sec.
the findings of facts of administrative bodies are,
2, Rule 128
however, respected as long as they are supported by
substantial evidence, even if such evidence is not
Rules of evidence, as components of Rules of Court,
overwhelming or preponderant.
apply only to judicial proceedings.

When evidence is required; when not required

The Rule 1, Sec. 4 also provides scope for the non-
application of Rules of Court to certain cases, to wit:
Where no factual issue exists in a case, there is no
a. Election cases need to present evidence because where the case
b. Land registration presents a question of law, such question is resolved
c. Cadastral by mere application of the relevant statues or rules of
d. Naturalization this jurisdiction to which no evidence is required.
e. Insolvency proceedings
 REMEDIAL LAW REVIEWER Chapter VI Evidence

Cases where no evidence is required: May a party stipulate waiving rules on evidence?

a. Matters of judicial notices
b. Judicial admissions
c. When pleadings in civil case do not tender an
issue of fact. In which case, judgment on the
pleadings Rule 34 is proper.
d. It may be dispensed by the agreement of the
parties, made in writing.
e. When the law or the rule presumes the truth
of a fact (Ex. Presumption of negligence on
the part of common carrier in case of breach)
Application of the Rules on Electronic Evidence
Yes. Art. 6 of the Civil Code provides that rights may
be waived, unless contrary to law, public order, public
policy, morals and good customs, or prejudicial to Pg.
third persons with a right recognized by law. 192
However, failure to object with respect to privileged
communication involving state secrets
communicated to a public officer in a official
confidence should not be construed as a waiver of
privileged character of the communication because of
public policy considerations as when the state secret
is one involving national defense and security.

The definition of evidence under the Rules of Court 6.1.3. Evidence in civil cases versus evidence in
makes reference only to judicial proceedings, the criminal cases
provisions of the Rules on Electronic Evidence apply
to all civil actions and proceedings, as well as quasi-
judicial and administrative cases. Sec.2, Rule 1 of the Evidence in Civil Cases Evidence in Criminal
Rules on Electronic Evidence. Cases
a. The party having
However, the Rules on Electronic Evidence do not the burden of proof a. The guilt of the
apply to criminal actions. must prove his accused has to be
claim by a proven beyond
There is no vested right in the rules of evidence preponderance of reasonable doubt.
evidence. b. Except those
This is because the said rules are subject to change by b. An offer of involving quasi-
the Supreme Court pursuant to its powers to compromise is not offenses or those
promulgate rules concerning pleadings, practice and an admission of any allowed by law to
procedure. liability, and is not be compromised,
admissible an offer of
However, the rules on evidence is still subject to the evidence against compromise by the
constitutional limitation on enactment of ex post the offeror. counsel may be
facto laws. An ex post facto law includes that which c. Generally, there is received in
alters the rules on evidence and receives less or no presumption for evidence as an
different testimony than that required at the time of or against a party. implied admission
the commission of an offense. Exception in of guilt.
some civil cases c. The accused enjoys
Waiver of the rules on evidence
such as contractual presumption of
suit against the innocence.
The rules on evidence may be waived. When an
carrier, there exists
otherwise objectionable evidence is not objected to,
a presumption
the evidence becomes admissible because of waiver.
against the
defendant.
 REMEDIAL LAW REVIEWER Chapter VI Evidence

6.1.4. Proof versus evidence 2. Maturity of the debt

3. Demand made by the plaintiff upon the
Proof the probative effect of evidence and is the defendant to pay
conviction or persuasion of the mind resulting from a 4. Failure to pay despite the demand
consideration of evidence. Pg.
From the side of the defendant, the fact of payment 193
Distinction between proof and evidence of obligation or of the prescription of the debt or the
elements of any defense he may interpose would
Evidence Proof constitute factum probandum.

1. Medium of proof 1. End and result of 6.1.6. Admissibility of evidence

evidence
2. Means to end a) Requisites for admissibility of evidence
2. End result
Two elements of admissibility:

1. Evidence must be relevant to the facts in issue

2. Evidence is not excluded by the rules (it must be

6.1.5. Factum probans versus factum competent), Sec. 3, Rule 128
probandum
Admissibility and weight

Factum Probans Factum Probandum Admissibility refers to the question of whether or not
the evidence is to be considered at all.
1. Fact or proposition 1. Fact or material
to be established evidencing the On the other hand, probative value of the evidence
2. Conceived as proposition to be refers to the question whether or not it proves an
hypothetical, that established issue.
which one party 2. Conceived as for
affirms and the practical purposes b) Relevance of evidence and collateral matters
other denies as existent and is
offered as such for Evidence must have such a relation to the fact in issue
the consideration as to induce belief in its existence or non-existence.
in court
General rule: Evidence on collateral matters shall not
Stated in another way, the factum probandum is the be allowed.
fact to be proved; the fact which is in issue and to
which the evidence is directed. On the other hand, Exception: when it tends in any reasonable degree to
factum probans is the probative or evidentiary fact establish the probability or improbability of the fact
tending to prove the fact in issue. in issue. Sec. 4, Rule 128

For instance, in a suit for collection of sum of money, c) Multiple admissibility

in the absence of any admission by the defendant, the
When evidence is offered for two or more purposes,
factum probandum of the plaintiff would be:
there is multiple admissibility.
1. Existence of the debt of the defendant
 REMEDIAL LAW REVIEWER
Sometimes, it is admissible for one purpose and
inadmissible for other purpose or vice versa.
Evidence may also be admissible against one party
but not against one another. An extrajudicial
statement of robbery suspect is not admissible
against co-accused under res inter alios acta rule but
may be admissible against the declarant himself
d) Conditional admissibility
It is when evidence is presented to the court
conditionally to be admitted in the meantime, subject
to a condition that he is going to establish the
relevancy and the competency oat a later time.
e) Curative admissibility
The doctrine of curative admissibility allows a party to
introduce otherwise inadmissible evidence to answer
the opposing partys previous introduction of
inadmissible evidence if it would remove any unfair
prejudice caused by the admission of the earlier
evidence.
f) Direct and circumstantial evidence
Direct evidence proves a fact without the need to
make an inference from another fact.
Circumstantial evidence/indirect evidence - an
evidence which indirectly proves a fact in issue
through an inference which a fact finder draws from
evidence established.
In criminal cases, circumstantial evidence is sufficient
for conviction if:
a. There is more than one circumstance
b. The facts from which the inference are
derived are proven
c. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt
In People vs Matito it was held that circumstantial
evidence is not a weak evidence vis--vis direct
evidence.
Chapter VI Evidence
g) Positive and negative evidence
Positive evidence when a witness affirms in the
stand that a certain state of facts does exist or that a
certain facts happen. Pg.
194
Negative evidence when the witness states that an
event did not occur or that the state of facts alleged
to exist does not actually exists.
h) Competent and credible evidence
Competent evidence one that is not excluded by
the law or rules in a particular case.
Credible evidence it is the worthiness of belief, that
quality which renders a witness worthy of belief.
Note when an evidence is considered competent, it
does not necessary follow that it is credible or
trustworthy.
i) Cumulative evidence and corroborative evidence
Cumulative evidence refers to the evidence of same
kind and character as that already given and that
tends to prove the same proposition.
Corroborative evidence one that is supplementary
to that already given tending to strengthen or confirm
it.
Corroborative evidence is not always required. It is
necessary only when there are reasons to suspect
that the witness falsified the truth or that his
observations are inaccurate.
6.1.7. Burden of proof and burden of evidence
Burden of proof the duty of the party to present
evidence to establish his claim or defense by the
amount of evidence required by law. Sec. 1, Rule
131.
Burden of evidence duty to the party to go
forward with the evidence to overthrow the prima
facie evidence against him.
 REMEDIAL LAW REVIEWER
One who denies the due execution of deed where
his signature appears has the burden of proof to
show the contrary, Chua vs Westmont, 667 SCRA 56,
February 27, 2012
In administrative proceedings, the burden of proof
that the respondent committed the acts complained
of rests on the complainant.
6.1.8. Presumptions (Rule 131)
Presumption an assumption of fact resulting from
a rule of law which requires such fact to be assumed
from another fact or group of facts found or
otherwise established in an action.
Kinds of presumptions
a. Presumptions of law or presumptions juris
an assumption which the law required to be
made from a set of facts
b. Presumption of fact or presumption hominis
- an assumption is made from the facts
without any direction or positive
requirement of the law.
Effect of presumption
A party in whose favor the legal presumption exists
may rely on and invoke such legal presumption to
establish a fact in issue. One need not introduce
evidence to prove the fact for a presumption is prima
facie proof of the fact assumed.
Classification of presumptions according to the
Rules of Court
a. Conclusive or presumption juris et de jure
irrebutable upon t e presentation of
evidence and any evidence tending to rebut
the presumption is not admissible.
b. Disputable or presumption juris tantum it
may be contradicted or overcome by other
evidence.
Chapter VI Evidence
a) Conclusive presumptions
Conclusive presumptions:
1. Estoppel in pais, Sec. 2[a], Rule 131
2. Estoppel by tenant Sec. 2[b], Rule 131 Pg.
195
Estoppel - It is an equitable principle rooted upon
natural justice, prevents persons from going back on
their own acts and representations, to the prejudice
of others who have relied on them.
Estoppel in pais
Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to
another to believe a particular thing true, and to act
upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted
to falsify it Sec. 2[a], Rule 131
In relation to the party to be estopped, the essential
elements are:
a. Conduct amounting to false representation
or concealment of material facts; or at least
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert;
b. Intent, or at least, expectation, that this
conduct shall be acted upon by, or at least
influence, the other party
c. Knowledge, actual or constructive, of the
real facts
In relation to the party claiming estoppel, the
essential elements are:
a. Lack of knowledge of the means of
knowledge of the truth as to the facts in
question
b. Reliance, in good faith, upon the conduct or
statements of the party to be estopped
c. Action or inaction based thereon of such
character as to change the position or status
 REMEDIAL LAW REVIEWER
of the party claiming the estoppel, to his
injury, detriment or prejudice
Estoppel by tenant
The tenant is not permitted to deny the title of his
landlord at the time of commencement of the
relation of landlord and tenant between them. Sec.
2[b], Rule 131
This estoppel applies even though the lessor had no
title at the time the relation of lessor and lessee was
created, and may be asserted not only by the original
lessor, but also by those who succeed to his title.
Germiano vs CA, 259 SCRA 344
b) Disputable presumptions
Disputable presumptions are presumptions that can
be rebutted by other evidence.
Under Sec. 3 of Rule 131, the following are the
disputable presumptions:
(a) That a person is innocent of crime or
wrong;
(b) That an unlawful act was done with an
unlawful intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person takes ordinary care of his
concerns;
(e) That evidence willfully suppressed would
be adverse if produced;
(f) That money paid by one to another was
due to the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the
debtor has been paid;
Chapter VI Evidence
(i) That prior rents or installments had been
paid when a receipt for the later one is
produced;
(j) That a person found in possession of a Pg.
thing taken in the doing of a recent wrongful 196
act is the taker and the doer of the whole
act; otherwise, that things which a person
possess, or exercises acts of ownership over,
are owned by him;
(k) That a 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;
(l) That a person acting in a public office was
regularly appointed or elected to it;
(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised
in a case were laid before the court and
passed upon by it; and in like manner that all
matters within an issue raised in a dispute
submitted for arbitration were laid before
the arbitrators and passed upon by them;
(p) That private transactions have been fair
and regular;
(q) That the ordinary course of business has
been followed;
(r) That there was a sufficient consideration
for a contract;
(s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
(t) That an endorsement of negotiable
instrument was made before the instrument
REMEDIAL LAW REVIEWER
was overdue and at the place where the
instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was
received in the regular course of the mail;
(w) That after an absence of seven years, it
being unknown whether or not the absentee
still lives, he is considered dead for all
purposes, except for those of succession.
The absentee shall not be considered dead
for the purpose of opening his succession till
after an absence of ten years. If he
disappeared after the age of seventy-five
years, an absence of five years shall be
sufficient in order that his succession may be
opened.
The following shall be considered dead for all
purposes including the division of the estate
among the heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aircraft with is missing,
who has not been heard of for four years
since the loss of the vessel or aircraft;
(2) A member of the armed forces who has
taken part in armed hostilities, and has been
missing for four years;
(3) A person who has been in danger of
death under other circumstances and whose
existence has not been known for four years;
(4) If a married person has been absent for
four consecutive years, the spouse present
may contract a subsequent marriage if he or
she has well-founded belief that the absent
spouse is already death. In case of
disappearance, where there is a danger of
death the circumstances hereinabove
provided, an absence of only two years shall
be sufficient for the purpose of contracting a
Chapter VI Evidence
subsequent marriage. However, in any case,
before marrying again, the spouse present
must institute a summary proceedings as
provided in the Family Code and in the rules
for declaration of presumptive death of the Pg.
absentee, without prejudice to the effect of 197
reappearance of the absent spouse.
(x) That acquiescence resulted from a belief
that the thing acquiesced in was
conformable to the law or fact;
(y) That things have happened according to
the ordinary course of nature and ordinary
nature habits of life;
(z) That persons acting as copartners have
entered into a contract of copartneship;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That 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 void marriage,
has been obtained by their joint efforts,
work or industry.
(cc) That in cases of cohabitation by a man
and a woman who are not capacitated to
marry each other and who have acquire
properly 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.
(dd) That if the marriage is terminated and
the mother contracted another marriage
within three hundred days after such
termination of the former marriage, these
rules shall govern in the absence of proof to
the contrary:
REMEDIAL LAW REVIEWER
(1) A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to have
been conceived during such marriage, even
though it be born within the three hundred
days after the termination of the former
marriage.
(2) A child born after one hundred eighty
days following the celebration of the
subsequent marriage is considered to have
been conceived during such marriage, even
though it be born within the three hundred
days after the termination of the former
marriage.
(ee) That a thing once proved to exist
continues as long as is usual with things of
the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book,
purporting to be printed or published by
public authority, was so printed or
published;
(hh) That a printed or published book,
purporting contain reports of cases
adjudged in tribunals of the country where
the book is published, contains correct
reports of such cases;
(ii) That 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;
(jj) That except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
first, and there are no particular
circumstances from which it can be inferred,
Chapter VI Evidence
the survivorship is determined from the
probabilities resulting from the strength and
the age of the sexes, according to the
following rules:
Pg.
1. If both were under the age of fifteen years, 198
the older is deemed to have survived;
2. If both were above the age sixty, the
younger is deemed to have survived;
3. If one is under fifteen and the other above
sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and
the sex be different, the male is deemed to
have survived, if the sex be the same, the
older;
5. If one be under fifteen or over sixty, and
the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two
or more persons who are called to succeed
each other, 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. (5a) Sec. 3, Rule
131.
Rule in Writ of Amparo
According to the Rule on Writ of Amparo, the
respondent public official or employee cannot invoke
the presumption that official duty has been regular
performed to evade responsibility or liability.
The presumption of regularity does not apply during
custodial investigation
It is incumbent upon prosecution to prove during trial
that prior to the questioning, the confessant was
warned of his constitutionally-protected rights.
 REMEDIAL LAW REVIEWER
Presumption of innocence prevails over
presumption of regularity
The presumption of innocence of the accused prevails
over the presumption that law enforcement agents
were in the regular performance of duty.
Evidence willfully suppressed would be adverse if
produced
The presumption that evidence when willfully
suppressed would be adverse if produced does not
apply if:
a. the evidence is at the disposal of both
parties
b. the suppression is not willful
c. it is merely corroborative or cumulative
d. the suppression is an exercise of a privilege
such as it is covered by privileged
communication
Mail received in regular course of mailing
When a mail matter is sent by registered mail, there
exists a presumption, set forth under Sec. 3(v), Rule
131 of Rules of Course, that it was received in the
regular course of mail.
Requisites:
a. The letter was property addressed with
postage prepaid
b. That it was mailed
Unfavorable terms of contract
All private transactions has the presumption that it is
fair and regular and that a person takes ordinary care
of his concerns. Thus, a person cannot just claim that
the terms of the contract is unfavorable to him.
Bare allegations, when unsubstantiated by evidence,
documentary or otherwise, are not equivalent to
proof under the Rules of Court.
Chapter VI Evidence
Tender-age presumption
The tender-age presumption may be overcome only
by compelling evidence of the mothers fitness. The
instances are: neglect, abandonment, Pg.
unemployment, immorality, habitual drunkenness, 199
drug addiction, maltreatment, insanity, or affliction
with communicable disease.
Enforcement of a contract by a party who is unable
to read
Under 1332 of the Civil Code, if mistake or fraud is
alleged, and one of the parties is unable to read, or if
the contract is in a language not understandable to
him, the person enforcing the contract must show
that the terms thereof have been fully explained to
the former. Cayabyab vs IAC, 232 SCRA 1
Dangerous weapons and substance
There is a prima facie presumption of negligence on
the part of the defendant if the death or injury results
from his possession of dangerous weapons or
substances, such as firearms and poisons. Except-
when the possession or use thereof is indispensable
in his occupation or business. Art. 2188 of the Civil
Code.
Doctrine of Res Ipsa Loquitur, the thing speaks for
itself
It establishes a presumption of negligence against the
defendant and furnishes a substitute for a specific
proof of negligence.
The following requisites must concur:
a. Direct evidence is absent and not readily
available
b. The accident Is of a kind which ordinarily
does not occur in the absence of someones
negligence
c. It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
 REMEDIAL LAW REVIEWER
d. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
No presumption of legitimacy or illegitimacy
There is no presumption of legitimacy of a child born
after three hundred days following the dissolution of
the marriage or the separation of the spouses.
Whoever alleges the legitimacy or illegitimacy of
such child must prove his allegation. Sec. 4, Rule
131.
6.1.9. Liberal construction of the rules of
evidence
These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and
proceeding. Sec. 6, Rule 1.
The Rules on Electronic Evidence shall likewise be
construed liberally. Sec. 2, Rule 2, Rules on Electronic
Evidence
6.1.10. Quantum of evidence (weight and
sufficiency of evidence) (Rule 133)
a) Proof beyond reasonable doubt
In a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond reasonable
doubt.
Proof beyond reasonable doubt does not mean such
a degree of proof, excluding possibility of error,
produces absolute certainly. Moral certainly only is
required, or that degree of proof which produces
conviction in an unprejudiced mind. Sec. 2, Rule 132.
A finding of guilt must rest on the evidence of the
prosecution, not on the weakness or even absence of
evidence for the defense.
b) Preponderance of evidence
Chapter VI Evidence
Preponderance of evidence means that the
evidence adduced by one side is, as a whole, superior
to or has greater weight than the other. It means
evidence which is more convincing to the court as
worthy of belief than that which is offered in Pg.
opposition thereto, Republic vs Bautista, 532 SCRA 200
598
It is the quantum of proof needed for civil cases.
In determining whether or no there is a
preponderance of evidence, the court may consider
the following:
a. All the facts and circumstances of the case;
b. The witness manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they are
testifying, the nature of the facts to which
they testify, the probability or improbability
of their testimony;
c. The witness interest or want of interest, and
also their personal credibility so far as the
same may ultimately appear in the trial;
d. The number of witnesses, although it does
mean that preponderance is necessarily with
greater number. Sec. 1, Rule 133 of the Rules
of Court.
c) Substantial evidence
In cases before administrative and quasi-judicial
bodies, substantial evidence is enough to establish a
fact.
Substantial evidence relevant evidence which a
reasonable mind might accept as adequate to justify
a conclusion.
In Duduaco vs Laquindanum, The Supreme Court
held that the administrative proceedings against
judges are highly penal in character and are to be
governed by the rules applicable to criminal cases.
Quamtum of evidence in petition for writ of amparo
 REMEDIAL LAW REVIEWER Chapter VI Evidence

In petition for writ of amparo, the parties shall of a matter evidence. It takes place of proof and is of
establish their claim by substantial evidence. equal force.

d) Clear and convincing evidence Limitation judicial notice should not fill the gaps of
the partys evidence. Judicial notice should not be Pg.
Clear and convincing evidence used to deprive an adverse party the opportunity to 201
prove a disputed fact. 29 AM Jur 2d, Evidence, 1994
It is clear and convincing evidence if it produces in the
mind of the trier of fact a firm belief or conviction as 6.2.1. What need not be proved
to allegations sought to be established. It is more than
Judicial notice is based on the maxim, what is
preponderance, but less than beyond reasonable
known need not be proved, hence, when the rule is
doubt.
invoked, the court may dispense with the
presentation of evidence on judicially cognizable
When the court may stop further evidence?
facts.
When the evidence upon it is already so full that more
6.2.2. Matters of judicial notice
witnesses to the same point cannot be reasonably
expected to be additionally persuasive. Sec. 6, Rule
a) Mandatory
133.
The following are the matters subject to mandatory
Limitation - . But this power should be exercised with judicial notice:
caution.
1. Existence and territorial extent of the states
In Government of Hongkong Special Administrative 2. Political history, forms of government and
Region vs Olalia, the Supreme Court held that in symbols of nationality of states
extradition proceeding, being sui generis, the 3. Law of nations
standard of proof required in the granting or denying 4. Admiralty and maritime courts of the world
bail can be either be beyond reasonable doubt or and their seals
preponderance in civil cases. In this case, clear and 5. Political constitution and history of the
convincing evidence must be proven. The potential Philippines
extradite must prove by clear and convincing 6. Official acts of legislative, executive and
evidence that he is not a flight risk and will abide with judicial departments of the Philippines
all the orders and processes of extradition court. 7. Laws of nature
8. Measure of time
In case of notarial documents, to overcome the 9. Geographical divisions
presumption of its due execution, there must be a
clear and convincing evidence.
Thus, the court shall take judicial notice of
6.2. JUDICIAL NOTICE AND JUDICIAL amendment in Rules of Court. The parties need not to
allege and prove the same.
ADMISSIONS (Rule 129)
b) Discretionary
Function of judicial notice to abbreviate litigation
by admission of mattes that need no evidence When can the court take discretionary judicial
because judicial notice is substitute for formal proof notice?
 REMEDIAL LAW REVIEWER
1. Matters which are of public knowledge
2. Capable of unquestionable demonstration
3. Mattes ought to be known to judges because
of their judicial functions
Requisites:
1. The mattes is among the section 2.
2. The matters must be settled beyond
reasonable doubt, if there is any uncertainty
about the matter, then evidence must be
adduced
3. The knowledge must exist within the
jurisdiction of the court.
4. The parties must be allowed to be heard
A judge may not take judicial notice of a fact generally
known within its territorial jurisdiction.
Stage when judicial notice may be taken
1. Judicial notice may be taken during the trial
of the case. The court, during trial , may
announce its intention of take judicial notice
of any matter.
How?It may do so on it own initiative or on the
request of any party and allow the parties to be heard
thereon. The hearing is for the purpose of
determining the propriety of taking judicial notice of
a certain matter and not for the purpose of proving
the issues in the case.
2. Judicial notice may be taken by the court
after trial, and before judgment or on
appeal. The proper court, on its own
initiative or on request of a party, may take
judicial notice of any matter and allow the
parties to be heard thereon if such matter is
decisive of a material issue in the case
6.2.3. Judicial admissions
Judicial admission admission, verbal or written,
made by a party in the course of the proceedings in
the same case. The same does not require proof.
Chapter VI Evidence
Requisites for judicial admission:
1. The same must be made by a party to the
case
2. It must be made in the course of the
Pg.
proceeding in the same case. If it is in
202
another case, it will be considered as
extrajudicial.
A party may make judicial admissions in:
a. Pleadings
b. During the trial, either written or verbal
c. In other stages of judicial proceeding
Note stipulations of facts at the pre-trial of a case
constitutes judicial admission.
An answer which is a mere statement of fact which
the party filing it expects to prove is not evidence. It
is not considered as judicial admissions. Spouses
Santos vs Spouses Lumbao
The admissions made by the accused in criminal
cases are necessarily judicial admission, but the
same is not necessarily admissible against him.
To be admissible, the following must concur:
1. Reduced in writing
2. Signed by the accused and the counsel.
Note - stipulation of facts entered into by the
prosecution and defense counsel during trial in open
court is automatically reduced in writing and
contained in official transcript of proceedings had in
open court.
a) Effect of judicial admissions
Effect of judicial admissions
The judicial admissions cannot be contradicted by the
admitter who is the party himself and binds the
person who makes the same, absent of any showing
that this was made through palpable mistake, no
amount of rationalization can offset. The admissions
became conclusive against him. Thus, the effects are:
 REMEDIAL LAW REVIEWER
1. They do not require proof
2. They cannot be contradicted because they
are conclusive upon the party making it
b) How judicial admissions may be contradicted
Grounds in contradicting an admission:
1. It was made through palpable mistake
2. No such admission was made
6.2.4. Judicial notice of foreign laws, law of
nations and municipal ordinance
Judicial notice of foreign laws; doctrine of processual
presumption
It is well settled rule that our courts cannot take
judicial notice of foreign laws. They must be alleged
and proved.
When the court may take judicial notice of a foreign
law
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, the court
may take judicial notice of the foreign law.
When foreign law is a part of foreign treatise
Where the foreign law is a part of published treatise,
periodical or pamphlet and the writer is recognized in
his profession or calling as expert in the subject, the
court, it is submitted, may take judicial notice of the
treatise containing the foreign law.
Judicial notice of municipal ordinances
Municipal courts should take judicial notice of
municipal ordinances in force in the municipality in
which they sit.
Note The RTC must still take judicial notice of
municipal ordinances in cases on appeal to it from the
inferior court in which the latter took judicial notice.
Chapter VI Evidence
The Court of Appeals may take judicial notice of
municipal ordinances because nothing in the Rules
prohibits it from taking cognizance of an ordinance
which is capable of unquestionable demonstration.
Pg.
Judicial notice of a courts own acts and records 203
A court will take judicial notice of its own acts and
records in the same case.
No judicial records of other cases; exceptions.
General rule the court may not take judicial notice
of contents of records in other cases, even the same
was tried in the same court.
Exceptions:
1. When in the absence of any objection, and
with the knowledge of opposing party, the
contents are clearly referred to by title and
number in pending action and adopted or
read into record of the latter;
2. When the original record of the other case
or any part of it is actually withdrawn from
the archives at the courts discretion upon
the request, or with the consent of the
parties, and admitted as part of the records
of the pending case.
Propriety acts of GOCCs are not subject to judicial
notice because the same is not official act of the
judicial department. Asian Terminals vs Malayan
Insurance
6.3. OBJECT (REAL) EVIDENCE (Rule 130 A)
6.3.1. Nature of object evidence
Objects as evidence are those addressed to the
senses of the court. 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.
 REMEDIAL LAW REVIEWER
Where physical evidence runs counter to testimonial
evidence, the physical evidence should prevail. BPI vs
Reyes.
6.3.2. Requisites for admissibility
Requisites for admissibility of an object or real
evidence:
1. Must be relevant
2. Authenticated
3. Authentication made by competent witness
4. The evidence must be formally offered in
evidence
The right against self-incrimination cannot be invoked
against object evidence because no compulsion was
involved.
6.3.3. Categories of object evidence
Categories of object evidence
1. Objects that have readily identifiable marks
(unique objects)
2. Objects that are made readily identifiable
(objects made unique) and
3. Objects with no identifying marks or cannot
be marked (non-unique objects)
If the object has unique characteristic, like a serial
number of a gun, it comes readily identifiable. A
witness may testify that the object has unique
characteristics.
If it has no serial number, the witness may identify the
same in courts if it has some unique characteristics
like marks on it.
The third category is not readily identifiable, like
blood or oil. Under this situation, the proponent of
evidence must establish chain of custody.
6.3.4. Demonstrative evidence
Demonstrative evidence not the actual thing but
represents or demonstrates the real thing. For
example, maps, diagram, photograph and a model.
Chapter VI Evidence
6.3.5. View of an object or scene
View of an object or scene
The court may make an ocular inspection of a Pg.
contested land to resolve questions of fact raised by 204
the parties. It may inspect a crime scene to clarify
itself with certain matters raised by the litigants.
The grant of view is a matter to judicial discretion. The
inspection or view should be made in the presence of
the parties or at least with previous notice to them.
6.3.6. Chain of custody, in relation to Section
21 of the Comprehensive Dangerous Drugs Act
of 2002
Chain of custody
Purpose to guaranty the integrity of the physical
evidence and prevent introduction of evidence which
is not authentic.
There must also be links to the chain. The links are the
people who actually handled or had custody of the
object.
The prosecution need not to elicit testimony from
every custodian, as long as one of the chain testiies
and his testimony negates the possibility of
tampering and that the integrity of the evidence is
preserved.
Note - if the object is not readily identifiable, chain of
custody must be shown.
Chain of custody in drug cases
Under the Philippines, drug operations are governed
with specific procedure with respect to the seizure
and custody of the drugs.
Section 1 (b) of Dangerous Drugs Board Regulation No
1 Series of 2002, in relation with Sec. 81 b] of RA 9165
provides:
 REMEDIAL LAW REVIEWER
b. Chain of custody means the duly recorded
authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from
the time of ht seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in
court for destruction. Such record of movements and
custody of seized item shall include the identity and
signature of the person who held temporary custody
of the seized item, the date and time when such
transfer of custody were made in the court of
safekeeping and use in court as evidence, and the
final disposition . People vs Obmiranis
Narcotic substances are not readily identifiable,
hence, in authenticating the same, more stringent
standard than that applied to readily identifiable
objects is necessary.
In drug cases, it is essential that the identity of the
prohibited drug must be established beyond
reasonable doubt. More than just a fact of
possession, the fact that the substance said to be
illegally possessed it the very same substance offered
in court as exhibit must be established.
Procedures to be followed as provided in Sec. 21,
Art. II of RA 9165:
1. The apprehending team shall have physical
inventory and photograph the same in the
presence of the accused or persons from
which the substance were seized, or
representative or counsel, and a
representative from media, and DOJ and any
elected public official who shall be required
to sign the copies of the inventory.
2. Within 24 hours, the same shall be
submitted to PDEA forensic for qualitative
and quantitative exam.
3. The forensic lab is required to issue within 24
hrs the receipt of drugs, and certification
under oath.
4. After filing of criminal case, the court, within
722 hrs, conduct an ocular inspection of
confiscated drugs, and through PDEA, within
Chapter VI Evidence
24 hours, proceed with the destruction of
the same.
5. The board will issue a sworn certification as
to the fact of destruction. The same shall be
submitted to courts. Pg.
The officer or his/her representative or counsel shall 205
be allowed to personally observe the procedure, and
such cannot be construed as admission.
Effect of non-compliance of procedure
As a rule, it will render the search and seizure void.
Except the non-compliance is due to justifiable
grounds, and the apprehending officer has properly
preserved the integrity and evidentiary value of the
seized items.
Therefore, the non-compliance does not
automatically makes the seizure void, if the elements
of the exception are present.
Elements to be established in the prosecution for
sale of dangerous drugs
Elements are:
1. Identity of the buyer and the seller, object
and the consideration
2. The delivery of the thing sold and payment
What is material is the proof that the transaction or
sale actually took place, coupled with presentation in
court of the corpus delicti.
Therefore, in buy-bust operation, a search after the
operation is a valid warrantless arrest because it is an
apprehension in flagrante delicto.
The absence of the marked money does not create
hiatus in the evidence for prosecution as long as the
sale of dangerous is adequately proven and the drug
subject of the transaction is presented before the
court. Neither the law or jurisprudence requires
presentation of money used in buy-bust operation.
People vs Almodiel
 REMEDIAL LAW REVIEWER Chapter VI Evidence

6.3.7. Rule on DNA Evidence (A.M. No. 06-11-
5-SC)
DNA Evidence
DNA a molecule that encodes the genetic
information in all living organisms.
It is not against the right against self incriminations. It
can be admitted when competently obtained in aid of
situations presented.
Guidelines in assessing the probative value of DNA:
1. How samples were collected
2. How they are handled
3. The possibility of contamination of the
samples
4. The procedure followed in analyzing the
samples
5. Whether the proper standards and
procedure were followed in conducting the
tests
6. The qualification of the analyst who
conducted the test
Rule on DNA Evidence, AM 06-11-05-SC
The DNA evidence is the primary rule to be applied
whenever DNA evidence is offered, used, or proposed
to be offered or used as evidence in:
a. A biological sample exists that has relevance
to the case
b. The biological sample was not previously
subjected to DNA requested; or if it was
previously subjected to DNA testing, the Pg.
results may require confirmation for good 206
reasons
c. DNA testing uses a scientifically valid
technique
d. DNA testing has the scientifical potential to
produce new information that is relevant to
the proper resolution of the case
e. The existence of other factors, if any, which
may consider as potentially affecting the
accuracy and integrity of the DNA testing
Courses of action of the court-
If the above requirements have been complied with,
the court shall now issue an order if appropriate, to:
1. Take biological samples from any person or
crime scene evidence
2. Impose reasonable conditions on the testing
to protect the integrity of the biological
sample and the liability of the test results
3.
Note the court may motu propio order a DNA
testing.

1. Criminal actions Is a court order always required before undertaking

2. Civil Actions DNA testing?
3. Special Proceedings
Not always required. The last paragraph of Sec. 4
When the matter is not specifically governed by the
allows a testing without prior court order if done
Rule on DNA evidence, ROC and other provisions of
before a suit or proceeding is commenced at the time
law apply.
of the request of any party, including law
enforcement and agencies.
How may an order for DNA testing be obtained?
This also means that litigation need not exists prior
A person who has legal interest in the litigation may
DNA testing. Thus, the court order shall only be
file an application for DNA testing order before the
required if there is a pending litigation, but not before
appropriate court, at any time.
litigation.
There must be a further showing that:
 REMEDIAL LAW REVIEWER
Note an order granting the DNA testing is
immediately executory, and therefore, not
appealable .Remedy is Certiorari under Rule 65.
Note there is no automatic admission of DNA
evidence obtained in the testing. You will still have to
evaluate the probative value of the proposed
evidence before its admission.
If a person has already been convicted under final
and executory judgment, may he still avail of DNA
testing?
Yes .The test after his conviction is a termed as post-
conviction DNA testing. It may be available to the
prosecution or person convicted by final and
executory judgment, provided that the following
requisites are present:
a. biological sample exists
b. such sample is relevant to the case
c. the testing would probably result in the
reversal or modification of the judgment or
conviction
Note in post-conviction DNA testing, court order is
not necessary. Sec. 6, RDE.
Remedy if to the convict if the results of the post
DNA testing is favorable to him.
He may file a petition for writ of habeas corpus in the
court of origin. If the court finds it meritorious, it shall
reverse or modify the judgment of the conviction and
order the release of the convict, unless the detention
is justified by lawful cause. Sec. 10 RDE.
The rule also allows petition to be filed either in CA,
SC, or any member of such courts. A hearing may be
conducted by such courts, or by any member
therefore, or a hearing may be instead remanded to
the court of origin and issue appropriate orders. Sec.
10 RDE.
Note DNA profiles of a person are confidential and
not open to the public.
Chapter VI Evidence
Except upon the order of the court, DNA profiles and
other results shall only be released to any of the
following:
1. Person from whom sample was taken
Pg.
2. Lawyers representing the parties in the case
207
or action where DNA evidence is offered and
presented, or sought to be offered and
presented
3. Lawyers of private complainants in criminal
actions
4. Duly authorized law enforcement agencies
5. Other persons as determined by the court
The person from whom samples were taken may
designed persons to receive the same by his request.
Such request however, must be in writing and verified
and filed with the court that allowed the DNA testing.
Sec. 11, RDE.
Duty of the court
The trial court is mandated to preserve the DNA
evidence in its totality, including biological samples.
DNA profiles and results or other genetic information
obtained from DNA testing in accordance with Sec. 12
of the RDE.
6.4. DOCUMENTARY EVIDENCE (Rule 130
B)
6.4.1. Meaning of documentary evidence
Documents as evidence consist of writing or any material
containing letters, words, numbers, figures, symbols or
other modes of written expression offered as proof of
their contents. Sec. 2, Rule 130.
Two categories:
a. Writings
b. Any other material containing modes of
written expressions
For writings or materials to be deemed documentary
evidence, the same must be offered as proof of their
contents. If offered for some other purposes, they will
be merely object evidence.
 REMEDIAL LAW REVIEWER
6.4.2. Requisites for admissibility
Requisites for admissibility of documentary evidence-
1. Document must be relevant
2. Evidence must be authenticated
3. Document must be authenticated by
competent witness
4. The document must be formally offered in
evidence
6.4.3. Best Evidence Rule (Rule 130 B 1)
Best evidence rule is the rule requiring that the
original of writing must, as a general proposition be
produced.
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other
than the original document itself. Sec. 3, Rule 130.
Therefore, the requisites for the applicability of the
rule are:
1. Subject matter must involve a document
2. The subject of inquiry is the contents of a
document
When the document is merely collaterally in issue
When a document is involved in the inquiry but the
document is only collaterally in issue, the best
evidence rule apply.
Waiver of the rule
The best evidence rule may be waived if not raised in
the trial. Sy vs Court of Appeals
1. office
Original of document
What are the original of the documents?
(a) The original of the document is one the contents
of which are the subject of inquiry.
Chapter VI Evidence
(b) When a document is in two or more copies
executed at or about the same time, with identical
contents, all such copies are equally regarded as
originals.
Pg.
(c) When an entry is repeated in the regular course of 208
business, one being copied from another at or near
the time of the transaction, all the entries are likewise
equally regarded as originals. Sec. 4, Rule 130.
Exceptions to the best evidence rule: (See the
discussions on Secondary Evidence Rule, Secs. 5-8, for
more info about the exceptions)
2. When the original has been lost or destroyed
or cannot be produced in court, without bad
faith on the part of the offeror
3. When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice
4. 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 he general result of the
whole
5. When the original is a public record in the
custody of a public officer or is recorded in
public office
Secondary evidence (Rule 130 B 2)
When the original document has been lost or
destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the
testimony of witnesses in the order stated. Sec. 5,
Rule 130.
Requisites for admissibility of secondary evidence if
the document is lost, destroyed or cannot be
produced (number 1):
 REMEDIAL LAW REVIEWER
1. The offeror must prove the execution and
existence of the original document;
2. The offeror must show the cause of its
unavailability
3. The offer must show that the unavailability
was not due to his bad faith
The due execution or authenticity of the document
must be provide either: a.) by anyone who saw the
document executed or written b. ) by evidence of the
genuineness of signature of handwriting of the
marker.
The presentation of secondary evidence must be in
the following order:
1. Copy of the original
2. Recital of its contents in some authentic
document
3. By the testimony of a witness
Secondary evidence evidence other than the
original instrument or document itself.
Note the secondary evidence must still meet its
probative value by which reliability is to be
determined.
When original document is in adverse party's
custody or control.
If the document is in the custody or under the control
of adverse party, he must have reasonable notice to
produce it. If after such notice and after satisfactory
proof of its existence, he fails to produce the
document, secondary evidence may be presented as
in the case of its loss. Sec. 6, Rule 130
Requisites for introduction of secondary evidence
when the original is in the custody or control of the
adverse party.
The offeror must prove the following:
1. That the original exists
Chapter VI Evidence
2. That the said document is under the custody
or control of the adverse party
3. That the proponent of the secondary
evidence has given the adverse party
reasonable notice to produce the original Pg.
document 209
4. That the adverse party failed to produce the
original document despite the reasonable
notice
Note the notice may be in the form of motion for
production of the original or made in open court in
the presence of adverse party, or via subpoena duces
tecum, provided that the party in custody of the
original has sufficient time to produce the same.
Requisites for introduction of secondary evidence
when the original consists of numerous accounts
Requisites:
1. The original consists of numerous accounts
or other documents
2. They cannot be examined in court without
great loss of time
3. The fact sought to be established from them
is only the general result of the whole, like
summary of accounts.
When the original of document is in the custody of
public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by
the public officer in custody thereof. Sec. 7, Rule 130.
Requisites for introduction of secondary evidence
when the original document is a public record
The evidence is a certified true copy of the original
issued by the public officer in custody of the public
records.
Party who calls for document not bound to offer it
A party who calls for the production of a document
and inspects the same is not obliged to offer it as
evidence. Sec. 8, Rule 130.
 REMEDIAL LAW REVIEWER
Note under section 8 or R 130, the party who calls
for the production of a document and inspect the
same is not obliged to offer it as evidence. Therefore,
no inference can be had here.
6.4.5. Parol Evidence Rule (Rule 130 B 3)
a) Application of the parol evidence rule
When the terms of an agreement 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. Sec. 9, Rule 130.
This rule applies to a contract deduced by the parties
to a writing. When parties execute written contract,
the parole evidence ipso facto comes into play.
Parol something oral or verbal but with reference to
contracts it means extraneous evidence or evidence
aliunde.
Being a final agreement, any extraneous or parol
evidence is inadmissible for any of the following
purposes:
1. Modify
2. Explain or
3. Add to the terms of written agreement
Being noted again, the parol evidence rule does not
apply to oral agreements.
The rule applies to all forms of writing, may it be in a
public or private instrument.
The application of the rule only applies to the parties
and successors in interest, therefore, third parties or
strangers are not barraged by parol evidence rule.
Application of the rule to wills
By the explicit provision of the Sec. 9, the term
agreement includes will. Therefore, there can be no
Chapter VI Evidence
evidence of the terms of the will other than the
contents of the will itself.
While the parol evidence applies to wills, an express
trust concerning an immovable or any interest Pg.
therein may not be proved by parol evidence. 210
b) When parol evidence can be introduced
Exception to the Parol Evidence Rule
The rule prohibiting parol evidence is not absolute. A
party may present evidence when he desires to
modify, explain or add to the terms of written
agreement by showing the following:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. The failure of the written agreement to
express the true intent and agreement of the
parties thereto
3. The validity of the written agreement
4. Existence of the other terms agreed to by the
parties or their successors in interest after
the execution of the written agreement Sec.
9, Rule 130.
However, these matters must be put in the issue in
the pleadings. Without that, the parol evidence
cannot be introduced.
Intrinsic ambiguity one which is not apparent on the
face o the document but which lies in the person or
thing that is the subject matter of the document or
deed.
Remedy if the parties failed to expressed their true
intention to the instrument reformation of
instrument. Art. 1359, Civil Code.
However, if there is no meeting of minds between the
parties because of mistake, fraud, inequitable
conduct or accident, the property remedy is not
reformation of contract but an action for annulment,
because the contract is rendered voidable by the
vitiation of the consent of one of the parties.
 REMEDIAL LAW REVIEWER Chapter VI Evidence

Reformation of instrument cannot be brought to Probative Value

reform any of the following;
Admissibility is not equivalent ot credibility or
1. Simple donation where there is no probative value, If the petitioner for instance, claims
consideration imposed that the parties entered into verbal agreement Pg.
2. Wills subsequent to the written agreement, the existence 211
3. When the real agreement is void of verbal agreement must be sufficiently supported
by evidence.
c) Distinctions between the best evidence rule and
parol evidence rule 6.4.6. Authentication and proof of documents
(Rule 132 B)

Best Evidence Rule Parol Evidence Rule a) Meaning of authentication

1. Establishes a 1. Parol evidence is Act of showing to the court that the document or
preference for the not concerned with object is the very same document or object. It is a
original document the primacy of preliminary step in showing the admissibility of
over the secondary evidence but evidence.
evidence thereof presupposes that
2. Precludes the original is available b) Public and private documents
admission of 2. Precludes the
secondary admission of other What are public documents?
evidence is the evidence to prove
1. The written official acts, or records of the
original is available the terms of a
official acts of the sovereign authority,
3. Can be invoked by document other
official bodies and tribunals, and public
any litigant to an than the contents
officers, whether of the Philippines, or of a
action whether or of the document
foreign country;
not the said litigant itself for the
2. Documents acknowledge before a notary
is a party to the purpose of varying
public except last wills and testaments; and
document involved the terms of the
3. Public records, kept in the Philippines, of
4. Applies to all forms writing
private documents required by law to the
of writing 3. Can be invoked
entered therein.
only by the parties
to the document The written official acts and records of official
and their sovereign authority do not refer only those of the
successors-in- Philippines, they also refer of foreign countries.
interest
What are private documents?
4. Applies to written
agreements
All other documents not mentioned in the Section 19
are private documents.
Waiver of the parol evidence rule
c) When a private writing requires authentication;
It can be waived if the parties failed to invoke the
proof of a private writing
benefits of the rule. Failure to object to the parol
evidence presented by the party operates as a waiver
A private document offered as authentic, its due
of protection of parole evidence rule.
execution and authenticity must be proved either by:
 REMEDIAL LAW REVIEWER
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.
If it is not offered as authentic, it need only be
identified as which it is claimed to be. Example, a
document presented for the purpose that a certain
piece of document exists.
But when the witness wants to show that the deed
was indeed executed by his brother, the process of
authentication required by Sec.20 must be complied
with.
d) When evidence of authenticity of a private
writing is not required
When authentication of private document is not
required
a. When the document is an ancient one within
the context of Sec. 21, Rule 132.
b. When the genuineness and authenticity of
an actionable document have not been
specifically denied under oath by the
adverse party under Sec. 8, Rule 8 of ROC.
c. When the genuineness and authenticity of
the document has been admitted under Sec.
4, Rule 129.
d. When the document is not being offered as
authentic as implied from Sec. 20, 132 of the
Rules of Court, which requires
authentication only when the document is
offered as authentic, Patula vs People,
April 11, 2012.
Ancient documents
A private document is considered ancient when:
1. It is more than 30 years old, and
2. Produced from custody in which it would
naturally found if genuine,
Chapter VI Evidence
3. Unblemished by any alterations or
circumstances of suspicion, Sec. 21, Rule
132.
e) How to prove genuineness of a handwriting Pg.
212
It may be proven by any witnesses who believes it to
be the handwriting of a person because:
1. He has seen the person write; or
2. He has seen writing purporting to be is upon
which the witness has acted or been
charged, and has thus acquired knowledge
of the handwriting of such person; or
3. By a comparison made by the witness or the
court, with writings admitted or treated as
genuine by the party against whom the
document is offered, or proved to be
genuine to the satisfaction of the judge, Sec.
22, Rule 130.
f) Public documents as evidence; proof of official
record
Documents consisting of entries in public records
made in the performance of a duty by a public
officer are prima facie evidence of the facts therein
stated.
All other public documents are evidence, even
against a third person, of the fact which gave rise to
their execution and of the date of the latter. Sec. 23,
Rule 132.
g) Attestation of a copy / Proof of public record
The record of a public document may be evidenced
by:
1. An official publication thereof; or
2. By a copy of a document attested by the
officer having legal custody of the record or
by attestation of his deputy; if the record is
not kept in the Philippines, the attestation
must be accompanied by a certificate that
such officer has the custody; if the office in
which the record is kept in a foreign country,
 REMEDIAL LAW REVIEWER
the certificate may be made by the secretary
of the embassy or legation, consul-general,
consul, vice-consul, or consular agent or by
any officer in the foreign service of the
Philippines stationed in the foreign country
in which the record is kept, and
authenticated by the seal of his office.
Whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must
state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may
be. The attestation 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. Sec. 25, Rule 132
The attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part
thereof, as the case may be.
The certificate and attestation are required because
of the general rule on the irremovability of public
records. Sec. 24, Rule 130.
h) Public record of a public document, public record
of private document
General rule - Any public record, an official copy of
which is admissible in evidence, must not be removed
from the office in which it is kept. Sec. 26, Rule 130
Exception Upon order of a court where the
inspection of the record is essential to the just
determination of a pending case.
Note the court held that a notary public in foreign
country is not one of those who can issue certificate
mentioned in Sec. 24. Therefore, a special power of
attorney to prosecute a case certified by such notary
public is inadmissible as evidence, and thus, will affect
the jurisdiction of the court
Public record of private document
Chapter VI Evidence
An authorized public record of a private document
may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has
the custody. Sec. 27, Rule 132. Pg.
213
The public record of private document may be proved
by the following;
a. By the original record, or
b. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has custody
i) Proof of lack of record
The written statement must contain the following:
a. There has been a diligent search of the
record
b. That despite the diligent search, no record of
entry of specified tenor is found to exist in
the records of his office
The written statement must be accompanied by a
certificate that such officer has custody of official
records. Sec. 28, Rule 132.
Last wills and testaments
Even though they are duly notarized, it must undergo
an authentication process. Under Sec. 1 of Rule 75, no
will shall pass either real or personal estate unless it
is proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
j) How a judicial record is impeached
Grounds for impeachment of judicial records:
1. Lack of jurisdiction in the court or judicial
officer
2. Collusion between the parties
3. Fraud in the party offering the record, in
respect to the proceeding, Sec. 29, Rule 132.
 REMEDIAL LAW REVIEWER
Foreign judgments; divorces
The divorce obtained abroad is proven by the divorce
decree itself. Therefore, the requirements in Sec. 24
and Sec. 255 of Rule 132, is required for a writing or
document may be proven as public of official record
of foreign country.
Church registries
Subsequent to the promulgation of G.O. No. 68, on
Dec, 18, 1889, and the passage of the Act No. 190,
enacted on Aug 17, 1091, church registries are no
longer public writings, nor are they kept by duly
authorized public officials.
They are now regarded as private writings and their
authenticity must be therefore proved, as well are all
other private writings in accordance with the rules of
evidence.
k) Proof of notarial documents
Every instrument duly acknowledged or proved and
certified as provided by law, 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.
Sec. 30, Rule 132.
Notarized documents, being public document, do not
require authentication, unlike private documents.
They enjoy the prima facie presumption of
authenticity and due execution.
To overcome this presumption, there must be
evidence to the contrary that is clear and convincing
as to exclude all controversy as to the falsity of the
certificate. Denials without clear and convincing
evidence to support the claim of fraud and falsity are
not sufficient to overthrow the above-mentioned
presumption.
Note the irregular notarization or lack of
notarization does not necessarily affect the validity of
the contract reflected in the document.
Chapter VI Evidence
Certain contracts must be embodied in public
instrument in order to be valid, examples:
1. Donation of immovable
2. Donation of movable with value exceeding
Pg.
five thousand pesos
214
3. A partnership where immovable property or
real rights are contributed
l) How to explain alterations in a document
Explaining alternations in a document
If a party produced a document as genuine but bears
alterations after its due execution, he may show any
of the following:
1. That the alteration was made by another
without his concurrence
2. That the alteration was made with consent
of the parties affected by it
3. That the alteration was otherwise properly
or innocently made
4. That the alteration did not in anyway change
the meaning or language of the instrument
Sec. 31, Rule 132.
Failure to do any of the above will make the
document inadmissible as evidence. Sec. 31, Rule
132.
m) Documentary evidence in an unofficial language
The document in unofficial language must be
accompanied by translation into English or Filipino,
otherwise , it is inadmissible. The same must be
prepared by the counsel before the trial. Sec. 33,
Rule 132.
 REMEDIAL LAW REVIEWER
6.5. TESTIMONIAL EVIDENCE (Rule 130 C)
Testimonial evidence or oral evidence evidence
elicited from the mouth of a witness as distinguished
from real and documentary evidence.
Presumption in favor of competence of a witness
General rule a person who takes the stand as a
witness is presumed to be qualified to testify.
A party who desires to question competence of a
witness must do so by making an objection as soon as
facts tending to show incompetency.
6.5.1. Qualifications of a witness (Rule 132 C 1)
Basic qualification of a witness:
1. Can perceive
2. In perceiving, can make his own perception
to others
Additional qualifications:
1. He must take either an oath or affirmation
(Sec. 1, Rule 132)
2. He must not possess any of the
disqualifications imposed by law or the rules
Religious or 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.
Oath or affirmation
Willingness to take an oath or affirmation is an
essential qualification of a witness.
Ability to perceive
A witness must be able to perceive an event. The
witness must have personal knowledge of facts
surrounding the subject matter of his testimony.
Sec. 36, rule 130 explicitly requires that a witness can
testify only to those facts which he knows of his
Chapter VI Evidence
personal knowledge, i.e., those which are derived
from his own perception.
Ability to make known the perception to others
Pg.
It involves two facts:
215
1. Ability to remember what has been
perceived
2. Ability to communicate the remembered
perception
Deaf-mutes are not necessarily incompetent as
witness. They are incompetent when they can:
1. Understand and appreciate the sanctity of
oath
2. Comprehend facts they are going to testify
to
3. Communicate their ideas through a qualified
interpreter (People vs Tuango, 345 SCRA
429)
6.5.2. Competency versus credibility of a
Competency and credibility
Competency of a witness has reference to the basic
qualification of a witness as his capacity to perceive
and communicate his perception to others. It also
includes the absence of any disqualifications imposed
upon a witness.
Credibility of a witness refers to the believability of a
witness and has nothing to do with the law or the
rules. It refers to the weight and trustworthiness or
reliability of the testimony.
The relationship of a witness of a party does not ipso
facto render him biased with the criminal cases where
the quantum of evidence is proof beyond reasonable
doubt. There is no reason why the same principle
should not be apply in criminal case where quantum
of evidence is only preponderance of evidence.
Northwest Airlines Inc vs Chiong, 543 SCRA 308
6.5.3. Disqualifications of witnesses
a) By reason of mental capacity or immaturity
 REMEDIAL LAW REVIEWER
Requisites for disqualification by reason of mental
incapacity:
1. The 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
Therefore, his mental incapacity during the event will
not make him incompetent as long as he is competent
at the time he is produced for examination to make
known his perception to others. However, it will
affect his credibility.
Requisites for disqualification by reason of
immaturity:
1. Mental maturity of the witness must render
him incapable of perceiving the facts
respecting which he is examined
2. He is incapable of relating his perception
truthfully
Note in disqualification by reason of mental
incapacity, the incompetence of the witness must
exist, not at the time of his perception of the facts,
but at the time he is produced for examination, and
consists in his inability to intelligently make known
what he has perceived.
b) By reason of marriage
During their marriage, neither the husband nor the
wife may testify for or against the other without the
consent of the affected spouse.
Exception: in a civil case by one against the other, or
in a criminal case for a crime committed by one
against the other or the latter's direct descendants or
ascendants.
The prohibition extends not only to testimony of
adverse to the spouse but also to a testimony in favor
of the spouse. It also extends to both criminal and civil
cases because the rule does not distinguish.
It is also essential that they be validly married, if not,
there is no privilege.
Chapter VI Evidence
The Sec. 22, Rule 30 also requires the existence of the
valid marriage at the moment the witness-spouse
gives the testimony. Hence, the rule does not prohibit
a testimony for or against the other after the
marriage is dissolved.
Pg.
216
If the testimony for or against the other spouse is
offered during the existence of the marriage, it does
not matter if the facts subject of the testimony
occurred or came to the knowledge of the witness-
spouse before the marriage.
Note that the offer of the testimony is the material
point.
Testimony covered by marital disqualifications
consists not only utterance but also production of
documents.
If the spouse is co-accused of a crime
In People vs Quidato, the court ruled that the spouse
may testify against them if the case involves other
parties or accused, however, the testimony cannot be
used against the accused-appellant directly or
through the guise of taking judicial notice of a
proceeding in the murder case without violating the
marital disqualification.
Testimony by estranged spouse
Where the marital and domestic relations are so
strained that there is no more harmony to be
preserved nor peace and tranquility which may be
disturbed, the reason based on such tranquility fails.
Therefore, the marital disqualification does not
anymore apply.
c) By reason of death or insanity of adverse party
This is also called as dead man statute or survivorship
disqualification rule.
Requisites:
1. The defendant in the case is the executor or
administrator or representative of the
deceased of person of unsound mind
 REMEDIAL LAW REVIEWER
2. The suit is upon claim by the plaintiff against
the state of the said deceased or person of
unsound mind
3. The witness is the plaintiff, or an assignor of
that party, or person in whose behalf a case
is prosecuted
4. The subject matter of the testimony is as to
any matter of fact occurring before the
death of such deceased person or before
such person become unsound mind. Sec. 23,
Rule 130.
Note the rule will not apply where the plaintiff is the
executor or administrator as representative of the
deceased or if the plaintiff is the person of unsound
mind.
How to rebut the rule? Offer a testimony of a
disinterested witness.
Note if the subject of the testimony is on some
other matter, the witness may testify on such matter
as when the subject of the testimony is on the fact
which transpired after the death of such person.
Waiver of the rule:
a. Failing to object to the testimony
b. Cross-examining the witness on the
prohibited testimony
c. Offering of evidence to rebut the testimony
d) By reason of privileged communications
The following persons cannot testify as to matters
learned in confidence in the following cases:
(a) The husband or the wife, during or after the
marriage, cannot be examined without the consent of
the other as to any communication received in
confidence by one from the other during the marriage
except in a civil case by one against the other, or in a
criminal case for a crime committed by one against
the other or the latter's direct descendants or
ascendants;
Chapter VI Evidence
(b) An attorney cannot, without the consent of his
client, be examined as to any communication made
by the client to him, or his advice given thereon in the
course of, or with a view to, professional
employment, nor can an attorney's secretary,
Pg.
stenographer, or clerk be examined, without the 217
consent of the client and his employer, concerning
any fact the knowledge of which has been acquired in
such capacity;
(c) A person authorized to practice medicine, surgery
or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice
or treatment given by him or any information which
he may have acquired in attending such patient in a
professional capacity, which information was
necessary to enable him to act in capacity, and which
would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of
the person making the confession, be examined as to
any confession made to or any advice given by him in
his professional character in the course of discipline
enjoined by the church to which the minister or priest
belongs;
(e) A public officer cannot be examined during his
term of office or afterwards, as to communications
made to him in official confidence, when the court
finds that the public interest would suffer by the
disclosure, Sec. 24, Rule 130.
6.5.4. Examination of a witness (Rule 132 A)
Examination of witness presented in trial or hearing
shall be done in open court, and under oath or
affirmation. Sec. 1, Rule 132.
Testimonies which need not to be given in open
court:
1. Rule on summary procedure, where
affidavits of the testimonies constitutes
direct testimonies of the witness who
executed the same
2. Depositions. They may be taken before
notary public or before any person
authorized to administer oaths.
 REMEDIAL LAW REVIEWER
3. Sec. 1 [f], Rule 115 in criminal cases, either
party may utilize the testimony of a witness
who is deceased, out of the country, or
unavailable to testify, provided that the
previous proceeding involved the same
parties and the subject matter and the
adverse party had opportunity to cross
examine the witness
4. Judicial affidavit rule, the judicial affidavit
takes place the direct testimonies of
witnesses.
Oath or affirmation
The option to take an oath is given to the witness and
not to the court, however, a witness who refused to
take an oath or affirmation cannot testify. The
accused may also draft an oath that he will testify
honestly. The refusal of the court of such will amount
to abuse of discretion.
Examination of witnesses and record of the
proceedings
General rule The answers shall be given orally.
Exceptions:
1. If the witness is incapacitated to speak
2. Questions calls for different mode of answer
The questions propounded to a witness and his
answers shall be recorded. The entire proceedings of
the trial or hearing must be recorded.
a) Rights and obligations of a witness
As a rule, the witness has the obligation to answer the
questions, although his answer may tend to establish
his claim.
Questions a witness may refuse to answer:
1. Answer which will tend to subject him to a
penalty for an offense
2. To be protected from irrelevant, improper,
insulting questions and from harsh or
insulting demeanor
Chapter VI Evidence
3. Not to be examined except as to matters
pertinent to the issue
4. Not to be detained longer than the interest
of justice requires to give an answer which
will tend to degrade his reputation, unless Pg.
a. it be the very fact at issue or 218
b. to a fact from which the fact in
issue would be presumed. Sec. 3,
Rule 132.
Note under RA 6981, The Witness Protection and
Security Act, a witness cannot refuse to testify or give
evidence or produce books, documents, records or
writings necessary for the prosecution of the offense
or offenses which he has been admitted on the
ground of right against self incrimination.
In case of a witness-accused, he may totally refuse to
take the stand. A mere witness cannot altogether
refuse to take the stand. Before he refuses to answer,
he must wait for the incriminating questions.
b) Order in the examination of an individual
witness
i. Direct examination
Direct examination is the examination-in-chief of a
witness by the party presenting him on the facts
relevant to the issue. Sec. 5, Rule 132.
ii. Cross examination
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party
as to many matters stated in the direct examination,
or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and
freedom from interest or bias, or the reverse, and to
elicit all important facts bearing upon the issue. Sec.
5, Rule 132.
General rule- The scope is not confined to the matters
stated by the witness in the direct examination.
 REMEDIAL LAW REVIEWER
Exceptions
1. If the witness is an unwilling or a hostile
witness as so declared by court, he may be
cross-examined only as to the subject matter
of his examination-in-chief.
2. Witness examined is an accused because he
is subject to cross-examination on matters
covered by direct examination.
Purposes of cross-examination:
1. To bring out facts favorable to counsels
client not established by direct testimony
2. To enable counsel to impeach or to impair
the credibility of the witness
iii. Re-direct examination
After the cross-examination of the witness has been
concluded, he may be re-examined by the party
calling him, to explain or supplement his answers
given during the cross-examination. On re-direct-
examination, questions on matters not dealt with
during the cross-examination, may be allowed by the
court in its discretion. Sec. 5, Rule 132.
iv. Re-cross examination
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the
court in its discretion. Sec. 5, Rule 132.
Effect of death or absence of a witness
If the witness before his cross-examination is over, his
testimony on the direct may be stricken out only with
respect to the testimony not covered by cross
examination.
Where strike out will not prosper:
1. Where the witness has already been
sufficiently cross-examined
2. Matter on which the cross examine is sought
is not in controversy
Chapter VI Evidence
Waiver of the right to cross examine
If the witness was not cross-examined because of the
causes attributable to cross-examining party and the Pg.
witness had always made himself available for cross- 219
examination, the direct testimony of the witness shall
remain in the record and cannot be ordered to
stricken off because the cross-examiner is deemed to
have waived his right to cross examine.
v. Recalling the witness
After the examination of a witness by both sides has
been concluded, the witness cannot be recalled
without leave of the court. The court will grant or
withhold leave in its discretion, as the interests of
justice may require. Sec. 5, Rule 132.
c) Leading and misleading questions
Leading questions One that is framed in such a way
that the question indicates to the witness the answer
desired by the party seeking the question.
It is not allowed in direct and re-direct examinations.
It is however, allowed in direct examination in the
following instances:
1. On preliminary matters
2. When the witness is ignorant, or a child of
tender years, or is feeble-minded or a deaf-
mute and there is difficulty in getting direct
and intelligible answers from such witness
3. When the witness is a hostile witness
4. When the witness is an adverse party, or an
officer, director or managing agent of a
corporation, partnership or association
which is an adverse party. Sec. 10, Rule 132.
Misleading questions
Misleading question is one which assumes as true a
fact not yet established to by the witness, or contrary
to that which he has previously stated. It is not
allowed in any type of examination.
 REMEDIAL LAW REVIEWER
d) Methods of impeachment of adverse partys
witness
Impeachment of a witness
Impeachment a technique employed usually a part
of cross-examination to discredit a witness by
attacking its credibility.
Impeachment of a witness is to be done by the party
against whom the witness is called.
General rule a party producing the witness is barred
from impeaching his own witness.
Exception
1. If the witness is unwilling or hostile, the
party calling him may be allowed by the
court to impeach the witness. Note
whether the witness is hostile or not is upon
the discretion of the court.
2. When the witness is an adverse party or is an
officer, director, or managing agent of a
corporation, partnership or association
which is an adverse party.
Evidence of good character
It is also improper for a party calling the witness to
present evidence of good character of his own
witness. The same is only allowed is the character of
the witness has been impeached. This only refer to a
mere witness. It does not refer to an accused in a
criminal case. In criminal case, the accused may prove
his good moral character relevant to the offense
charged even before his character is attacked.
Under Sec. 11 of the Rule 132, a witness may be
impeached through the following modes:
a. By contradictory evidence
b. By evidence that is general reputation for
truth, honestly or integrity is bad
c. By evidence that he has made at other times
statements inconsistent with his testimony
Chapter VI Evidence
No impeachment by evidence of particular wrongful
acts
Note a witness cannot be impeached by evidence of
particular wrongful acts except evidence of his final
Pg.
conviction of an offense as disclosed by his
220
examination or the record of the final judgment.
This prior conviction of witness is shown in two ways:
a. By his examination like cross-examining him
b. By presenting the record of his prior
conviction
According to Sec. 12, an unwilling or hostile witness
so declared by the court or the witness who is an
adverse party cannot be impeached by evidence of
his bad character.
e) How the witness is impeached by evidence of
inconsistent statements (laying the predicate)
Impeachment by contradictory evidence
The basis of this mode of impeachment is a
declaration made by the witness in his direct
testimony. The cross-examiners intention is to show
to the court that here were allegations made by the
witness that do not correspond to the real facts of the
case.
For this mode, laying of property foundation for
impeachment is essential. The elements of these
foundations are:
a. The alleged statements must be related to
the witness including the circumstances of
the times and places and the persons
present.
b. He must be asked whether he made such
statements and also to explain them if he
admits making those statements.
The mere presentation of the prior declaration of the
witness without the same having been read to him
while testifying in court is insufficient for the desired
impeachment of his testimony.
The purpose of laying the predicate is to allow the
witness to admit or deny the prior statement and
afford him an opportunity to explain the same. Non-
 REMEDIAL LAW REVIEWER Chapter VI Evidence

compliance with foundational elements for this mode
of impeachment will be a ground for objection based
on improper impeachment.
f) Evidence of the good character of a witness
Impeachment by showing bad reputation
Not every aspect of persons reputation may be the
subject of impeachment. Evidence of bad reputation
should only refer to:
a. Truth
b. Honestly
c. Integrity
Thus, it would be improper for a witness to be
impeach because of his reputation of being
troublesome and abrasive.
Not that this rule refers to evidence of bad reputation
and not bad character. Character is made up of the
things an individual is and does, whereas
reputation is what people think an individual is and
what they say about him.
Exclusion and separation of witnesses.
party, who may, if he chooses, cross examine the
witness upon it, and may read it in evidence.
So, also, a witness may testify from such writing or
record, though he retain no recollection of the
Pg.
particular facts, if he is able to swear that the writing
221
or record correctly stated the transaction when
made; but such evidence must be received with
caution. Sec. 16, Rule 132
When part of transaction, writing or record given in
evidence, the remainder, the remainder admissible
When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the
whole of the same subject may be inquired into by the
other, and when a detached act, declaration,
conversation, writing or record is given in evidence,
any other act, declaration, conversation, writing or
record necessary to its understanding may also be
given in evidence. Sec. 17, Rule 132
Whenever a writing is shown to a witness, it may be
inspected by the adverse party. Sec. 18, Rule 132
6.5.5. Admissions and confessions (Rule 130 C
3)

The judge may exclude a witness who, at the time of Admission act, declaration or omission of a party as
exclusion, is not under examination so that he may to relevant fact.
not hear the testimony other witnesses.

The judge may cause the witnesses to be kept Admission Confession

separate and be prevented from conversing with one
another until all shall have been examined. Sec. 15,
1. Statement of fact 1. There is an
Rule 132
not directly acknowledgement
involving of guilt. The
When witness may refer to memorandum
acknowledgement declaration of an
A witness may be allowed to refresh his memory of guilt or the accused
respecting a fact, by anything written or recorded by criminal intent to acknowledging his
himself or under his direction at the time when the commit the guilt of the offense
fact occurred, or immediately thereafter, or at any offense which is charged, or of any
other time when the fact was fresh in his memory and one is charged offense necessarily
knew that the same was correctly written or 2. In general sense, it included therein.
recorded; but in such case the writing or record must includes 2. Specific type of
be produced and may be inspected by the adverse confessions, the admission which
former being a refers only to
 REMEDIAL LAW REVIEWER Chapter VI Evidence

broader term acknowledgement A confession cannot be implied. It must be a positive

because of guilt acknowledgement of guilt and cannot be inferred.
accordingly, a 3. Cannot be implied
confession is also Judicial admission when made in the course of
judicial proceeding
an admission Pg.
3. May be implied 222
Extrajudicial when made out of court or even in a
like admission by
proceeding other than the one under consideration.
silence
Adoptive admission occurs when a person manifest
his assent to the statements of another person. The
admission may be received in evidence if it can be
Admissions Declarations Against shown that a party adopted the statements as his
Interest own.

It occurs when:
1. Admissible in 1. The declarant must
evidence en if the be dead or unable a. When agrees to or occurs in an oral
person making to testify statement made by another
such is alive 2. Generally made b. Hears a statement and later essentially
2. Made at any time, before the repeats it
even during trail controversy arises c. Utters an acceptance or builds upon the
3. Admissible as long 3. Generally made ascertain of other
as it is inconsistent against ones d. Replies by way of rebuttal to some specific
with his present pecuniary or moral points raised by another but ignores the
claim or defense interest further points which he or she has heard the
and need not to be 4. Admissible even other make
against ones against third e. Reads and subsequently signs a written
pecuniary interest persons statement of another
4. Admissible only 5. Exception to the
against the parties hearsay rule Effect of extrajudicial confession of guilt; corpus
5. Admissible not as delicti
an exception to
any rule While a judicial confession may sustain a conviction,
an extrajudicial confession is not sufficient for
Effect of admissions conviction. The rule requires that the confession be
corroborated by evidence of corpus delicti.
An admission by a party may be given in evidence
against him. However, his admission is not admissible Corpus delicti body of the crime. The actual
in his favor, because it would be a mere self-serving commission of the crime and someone criminally
evidence. responsible therefor.

Classification of admissions and confessions Two elements of corpus delicti:

Express Admission positive statement or act 1. Proof of the occurrence of a certain event
2. Some persons criminal responsibility of the
Implied Admission - one which may be inferred from act
the declarations or acts of a person
 REMEDIAL LAW REVIEWER
For extrajudicial confession made under custodial
investigation be admissible, the following must be
present:
1. The confession made shall be in writing
signed by such person
2. In the presence of his counsel, or in the
latters absence, upon a valid waiver, and in
presence of any of the parents, older
brothers and sisters, his spouse, municipal
mayor, municipal judge, district school
supervisor, or priest or minister of gospel
chosen by him.
In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in
evidence against the offeror. Sec. 27, Rule 130
In criminal cases, an offer of compromised by the
accused may be received in evidence as an implied
admission of guilt. Except:
a. Quasi-offenses such as criminal
negligence
b. Cases allowed by the law to be
compromised, including those falls
within the Barangay Conciliation
proceedings Sec. 27, Rule 130
Plea of guilty later withdrawn
Under the rules, the accused, at arraignment, ma plea
to a lesser offense with the consent of the offended
party and the prosecutor, provided that the lesser
offense is necessarily included in the offense charged.
In case that the accused withdraws his guilty plea,
that plea of guilty later withdrawn is not admissible in
evidence against the accused who made the plea.
Unaccepted plea of guilty to a lesser offense
The rule provides that an unaccepted plea of guilty to
a lesser offense is not admissible evidence against the
accused who made the plea or offer.
Chapter VI Evidence
Offer to pay or the payment of medical, hospital and
other offenses
It is not admissible in evidence as proof of civil and
criminal liability for the injury. This is also called
Pg.
good samaritan rule other jurisdiction.
223
Subsequent remedial measures
Admission of evidence of subsequent remedial
measures when offers to prove the negligence of the
defendant is not admissible against him.
a) Res inter alios acta rule
Res inter alios acta; branches
It is translated as things done between strangers
ought not to injure those who are not parties to
them.
The rule has two branches:
a. The rule that rights of a party cannot be
prejudiced by an act, declaration or omission
of other. Rule 28, Rules of Court.
b. The rule that evidence of previous conduct
or similar acts at one time is not admissible
to prove that one did or did not do the same
act at another time.
Note that the rule has reference only to extrajudicial
declarations. Hence, statements made in open court
by a witness implicating persons, aside from his own
judicial admissions, are admissible as declaration
from one who has personal knowledge of the facts
testified to.
Distinctions between extrajudicial and judicial
admission
An extrajudicial confession may be given in evidence
against the confessant but not against his co-accused
as they are deprived of the opportunity to cross-
examine him.
Judicial confession is not admissible against the
declarants co-accused since the later are afforded
opportunity to cross-examine the former.
 REMEDIAL LAW REVIEWER
Sec. 30 of Rule 130 of the Rules of Court applies only
to extrajudicial acts or admissions and not to
testimony at trial where the party adversely affected
has the opportunity to cross examine him.
General rule - An extrajudicial confession or
admission of one accused is admissible only against
the said accused, but is inadmissible against the other
accused.
Exception If the declarant or admitter repeats in
court his extrajudicial admission, and the other
accused is accorded the opportunity to cross-examine
the admitter, the admission is admissible against both
the accused then, it is transposed into a judicial
admission. Yapyuco vs Sandiganbayan,
Exception to the res inter alios rule, (first branch):
a. Admission by a co-partner or agent, Sec. 29
of the Rule 130
b. Admission by a co-conspirator, Sec. 30, Rule
130
c. Admission by privies, Sec. 31 Rule 130
b) Admission by a party
The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
Sec. 26, Rule 130.
c) Admission by a third party
The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided. Sec. 28, Rule 130.
d) Admission by a co-partner or agent
When the admission by co-partner or agent
admissible:
a. If the co-partner or agent is acting within the
scope of his authority,
b. The act or declaration was made during the
existence of partnership or agency
Chapter VI Evidence
c. The partnership or agency is shown by
evidence other than by such act or
declaration. Sec. 29, Rule 130
The same rule applies to the act or declaration of a Pg.
joint owner, joint debtor, or other person jointly 224
interested with the party.
Any declaration made before the partnership or
agency existed, or those made after are not
admissible against the other partners or principal, but
remains admissible against the partner or agent
making such declaration.
e) Admission by a conspirator
When the act or declaration by co-conspirator
admissible:
a. The act or declaration relates to the
conspiracy
b. The act or declaration was made during the
existence of the conspiracy
c. Conspiracy is shown by evidence other than
such act or declaration, Sec. 30. Rule 130
Conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony
and decided to commit it.
Once conspiracy is proven, the act of one is the act of
all.
Note if the declaration of a co-conspirator was long
after the conspiracy is over, it is not anymore
admissible.
Incriminating declarations of co-conspirators made in
the absence of or without the knowledge of others
after the conspiracy has come to an end is
inadmissible.
Exception to the above rule
The requisites for the rule do not apply when the
witness stand and repeats his extrajudicial confession
as a witness. When he testifies as a witness, his
statements become judicial and are admissible not
 REMEDIAL LAW REVIEWER
only against him but also against his co-accused. This
is because the statements by witness in open court
are admissible as testimonies of a person based on his
personal perceptions and knowledge.
When extrajudicial admission of a conspirator is
confirmed at the trial, it ceases to be hearsay. It
becomes instead of judicial admission, being a
testimony of an eyewitness admissible in evidence
against those he implicates.
f) Admission by privies
Where one derives title to property from another, the
act, declaration, or omission of the latter, while
holding the title, in relation to the property, is
evidence against the former. Sec. 31, Rule 130
Privies persons who are partakers or have an
interest in any action or thing, or any relation to
another.
Requisites:
1. The act or declaration must be made by the
transferor or assignor
2. It must be made while he was holding the
title over the property
3. The act or declaration must be in relation to
the property
Note - when the former owner of the property made
the declaration after he ceased to be the owner of the
property, the rule on admission by privies does not
apply.
g) Admission by silence
Requisites for admission by silence:
1. The act or declaration must be made in the
presence and within the hearing and
observation of a party
2. That party who does or says nothing when
the act or declaration is such as naturally to
call for action or common if not true, and
when proper and possible for him to do so.
Sec. 32, Rule 130.
Chapter VI Evidence
Ratio for the rule if an accusation is made, and a
reasonable person would have denied the same if it
were false, the failure to deny the accusation by the
person accused may be construed as an implied Pg.
admission of truth of the accusation and may be given 225
in evidence against him.
Note not every silence is an implied admission. For
instance, the silence of a person under investigation
for the commission of an offense should not be
construed as an admission by silence because of
constitutional reasons. Sec. 2[b], R.A. 7438
For silence be deemed as an admission, it is necessary
that:
a. He heard and understood the statement
b. He was at liberty to make a denial
c. Statement was about matter affecting his
rights or in which he was interested and
which naturally calls for a response
d. The facts were within his knowledge
e. The fact admitted from his silence is material
to the issue
h) Confessions
The declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein, may be given in evidence against
him. Sec. 33, Rule 130.
If judicial confession, it is sufficient to convict the
accused.
If extra-judicial confession, and under custodial
investigation, it must be made in writing, signed by
the confessant, in presence of parties.
Mere extrajudicial confession is not sufficient to
convict the accused unless corroborated by evidence
of corpus delicti.
 REMEDIAL LAW REVIEWER
i) Similar acts as evidence
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; but
it may be received to prove a specific intent or
knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like. Sec. 34, Rule 130.
This one refers to the second branch of the Res Inter
alios rule.
As a 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 in
some other time.
Exception is that, it may be received to prove:
a. Specific intent or knowledge
b. Identify
c. Plan
d. System
e. Scheme
f. Habit
g. Custom or usage
h. And the like
Under the same rule, in an action to collect a sum of
money, evidence that he debtor had contracted debts
with various persons in the past and had not paid such
debts despite demand, is not admissible to show that
the debtor did not pay his obligation to the plaintiff in
a certain case.
Note that evidence of similar acts may frequently
become relevant, especially in actions based on fraud
and deceit, because it sheds light on the state of mind
or knowledge of a person, his motive or intent, or
they may uncover a scheme, design or plan.
6.5.6. Hearsay Rule (Rule 130 C 5-6)
A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are
derived from his own perception, except as otherwise
provided in these rules. Sec. 36, Rule 130.
Chapter VI Evidence
What can a witness testify:
1. Those facts which he knows of his personal
knowledge
2. Which are derived from his own perception
Pg.
The personal knowledge of a witness is a substantive 226
prerequisite for accepting testimonial evidence that
establishes a disputed fact.
a) Meaning of hearsay
When evidence is called hearsay
It is hearsay when its probative force depends, in
whole or in part, on the competency and credibility of
some persons other than the witness by whom it is
sought to produce it.
Hearsay is not limited to oral testimony or
statements. The rule that excludes hearsay evidence
applies to both written and oral statement.
When affidavits are considered hearsay
While affidavits that have been notarized are public
documents if they are acknowledged before a notary
public, these are still considered hearsay unless the
affiants themselves are placed in the witness stand
and to testify thereon.
Hearsay evidence not objected to; effect
Hearsay evidence if not objected to, is admissible.
However, even if admitted, it has not probative value.
In Estrada vs Disierto, The Supreme Court
acknowledged that the ban on hearsay does not
include statements which are relevant indecently of
whether they are true or not, like the statements of a
person to show, among others, his state of mind,
mental condition, knowledge, belief, intention, ill-will
and other emotion.
Specific elements of hearsay:
a. There must be an out-of-court statement. It
may be oral or written.
b. The statement made out of the court is
repeated and offered by the witness in court
 REMEDIAL LAW REVIEWER Chapter VI Evidence

to prove the truth of matters asserted by Independently relevant statements

such statement.
Declarants statement may have relevance to an issue
in a case from the mere fact that the words were
Hearsay Evidence Opinion Evidence spoken or written, irrrespectie of the truth of falsity
Pg.
of assertion.
227

One that is not based on Based on personal They are called as independently relevant statements
ones personal knowledge or personal because the statements are admissible for some
perception but based conclusions of the relevant reason of independent of their truth or
on the knowledge of witness based on his falsity.
others to prove the skill, training or
truth of matter asserted experience. Hence, a witness may be asked questions concerning
in an out-of-court what the accused told him that other persons were
declaration. involved in conspiracy if the purpose of the testimony
is not to prove that such persons were really involved
Examples of non-hearsay evidence
in the conspiracy but only to prove what the accused
a. A statement having probative worth simply had mentioned.
by virtue of fact that it was uttered, if
Newspapers as hearsay
relevant to a material fact in issue, is not
hearsay and is generally admissible.
Newspaper accounts of an incident are hearsay if
b. Statements offered for non-hearsay purpose
offered to prove the accounts but are not hearsay if
like statements relating of the statement of offered for a purpose other than the truth of the
mind of the declarant and statements matter asserted.
relating to the state of mind of the listener.
Out-of-court statements offered to prove mental Classification of independently relevant statements:
state of mind of the declarant
First class
As long as an out-of-court statement is offered for a
a. Statements which are the very facts in issue;
non-hearsay purpose, a purpose other than to prove
b. The statements which are circumstantial
the truth of matter asserted, the statement is
admissible if it has relevance to the matter in issue. evidence of the fact in issue

Out-of-court statement offered to prove its effect on Second class

the listener
When the statement is not offered for the truth of the
matter asserted but is offered to show the mental
effect of the statement on the hearer, the statement
is not hearsay.
Out of court statement offered to prove that the
statement was made
Where the statement is not offered for the truth of
the matter asserted, but to merely show what was
said, the statement is not hearsay.
a. Statements of a person showing his state of
mind, that is, his mental condition,
knowledge, belief, intention, ill-will and
other emotions
b. The statements of a person which shows his
physical condition, as illness and the like
c. Statements of a person from which an
inference may be made as to the state of
mind of another, that is knowledge, belief,
motive, good or bad faith, etc, of the latter
d. Statements which may identify the date,
place, and person in question
 REMEDIAL LAW REVIEWER
e. Statements showing lack of credibility of a
witness
b) Reason for exclusion of hearsay evidence
This is because a witness can testify only to those
facts which he knows of his personal knowledge;
c) Exceptions to the hearsay rule
The exceptions under hearsay rule under the Rules
of Court are the following:
a. Dying declarations, Sec. 37 Rule 130
b. Declaration against interest, Sec. 38, Rule
130
c. Act or declaration about pedigree, Sec. 39,
Rule 130
d. Family reputation or tradition regarding
pedigree, Sec. 40, Rule 130
e. Common reputation, Sec. 41, Rule 130
f. Parts of res gestae, Sec. 42, Rule 130
g. Entries in the course of business, Sec.
43,Rule 130
h. Entries in official records, Sec. 44,Rule 130
i. Commercial lists and the like, Sec. 45,Rule
130
j. Learned treatise, Sec. 46, Rule 130
k. Testimony or deposition in further
proceeding, Sec. 40, Rule 130
They are considered as admissible because there exist
a diminished risk of untrustiworthiness because the
motivation to lie is less.
i. Dying declaration
The dying declaration of a person may be received as
evidence of the cause and surrounding circumstances
of such death provide that:
1. The declaration is made by a dying person
2. It is made under consciousness of an
impending death
3. The declaration refers to the cause and
circumstances surrounding the death of the
declarant and not of anyone else
Chapter VI Evidence
4. The death is the subject inquiry
5. The declarant is competent as a witness had
he survived, People vs Cerilla
6. The declarant should have died. Sec. 37, Rule
130. Pg.
228
If the declarants survives, the declaration may be
received in evidence as parts of res gestate if the
requisites for such is present.
This exception applies to both criminal and civil cases
because of the wording in Sec. 37, in any case.
In People vs Lara, the Supreme Court held that if the
declarants statement is made under consciousness
of impending death, a subsequent belief in the
recovery before his actual death does not bar
admissibility of his statement,.
Assailing a dying declaration
Like any other evidence, the declaration may be
attacked in the same manner as one would do to a
testimony in open court.
The declarant himself may be impeached through
the normal methods provide for under the rules.
ii. Declaration against interest
Requisites:
a. The declarant must be a person deceased or
unable to testify
b. He made a declaration against his interest, if
the fact is asserted in the declaration as at
the time it was made so far contrary to
declarants own interest
c. A reasonable man in his position would not
have made the declaration unless he
believed it to be true. Sec. 38, Rule 130.
The declaration may be enforced against himself or
his successors in interest and against third persons.
If the declaration is in favor of his interest, it is not
admissible being self-serving evidence.
 REMEDIAL LAW REVIEWER
iii. Act or declaration about pedigree
Pedigree includes relationship, family genealogy,
birth, marriage, death, the dates when and the time
where these fats occurred, and the names of the
relatives. It also embraces facts of family history
intimately connected with pedigree.
Requisites:
a. The declarant is dead or unable to testify
b. The declarant is related by birth or marriage
to the person whose pedigree is in issue
c. The declaration was made before the
controversy
d. The relationship between the two persons is
shown by evidence other than such act or
declaration. Sec. 39, Rule 130.
iv. Family reputation or tradition regarding
pedigree
Requisites:
1. Statement by member of the family either by
consanguinity or affinity
2. The statement is about the reputation or
tradition of the family in respect to the
pedigree of any member of the family
3. The reputation or tradition is one existing to
the previous controversy. Sec. 40, Rule 130.
v. Common reputation
Common reputation is admissible when:
1. The reputation refers to the matter of public
general interest, or respecting marriage
2. Or moral character and said matter is more
than 3- years old
3. The common reputation must be one
existing prior to the controversy Sec. 41,
Rule 130.
Monuments and inscriptions in public places may be
received as evidence of common reputation.
Chapter VI Evidence
vi. Part of the res gestae
Res gestate those circumstances which are
undersigned incidents of a particular litigated act and
which are admissible when illustrative of such act.
Pg.
229
The res gestate in our jurisdiction is limited on two
matters:
a. Spontaneous statements
b. Verbal acts
Requisites for admissibility of res gestate:
1. There is a startling even or occurrence
taking place
2. A statement was made while the event is
taking place or immediately prior or
subsequent thereto
3. Statement was made before the declarant
had the time to contrive or devise falsehood
4. The statement relates to the circumstances
of the startling event or occurrence, or that
the statements must concern the
occurrence in question and its immediate
attending circumstances. Sec. 42, Rule 130.
Even if the declarant is unavailable and thus cannot
be cross-examined, the evidence may be received in
evidence.
The statement and the event cannot be taken
separately
The statement alone, without the event, will not
qualify for admission because it si a circumstances
surrounding the making of the statement which make
the said statement admissible.
Verbal acts
The last sentence of the Sec. 42 of Rule 130 defines a
verbal act as a statements accompanying an
equivocal act material to the issue, and giving it a
legal significance.
To be admissible under this category, the following
requisites must be present:
 REMEDIAL LAW REVIEWER
a. The principal act to be characterized must be
equivocal
b. The equivocal act must be material to the
issue
c. The statement must accompany the
equivocal act
d. The statement gives a legal significance to
the equivocal act.
vii. Entries in the course of business
Requisites for the rule:
a. A person who made the entry must be dead
or unable to testify
b. The entries were made at or near at the time
of the transactions to which they refer
c. The entrant was in position to know the facts
stated in the entries
d. The entries were made in his professional
capacity or in the performance of a duty,
whether legal, contractual, moral or
religious
e. The entries were made in the ordinary or
regular course of business. Sec. 43, Rule 130.
The Rules on Electronic Evidence also expressly
exempt business records from application of hearsay.
viii. Entries in official records
Requisites for the rule:
a. The entry was made by a public officer or by
another person specifically enjoined by law
to do so
b. It was made by public officer, or by such
other person in performance of a duty
specifically enjoined by law
c. The public officer or other person had
sufficient knowledge of the facts by him or
her stated, which must have been acquired
by the public officer or other person or
through special information. Sec. 44. Rule
130.
Chapter VI Evidence
ix. Commercial lists and the like
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a list,
register, periodical, or other published compilation is
Pg.
admissible. 230
Requisites:
1. That compilation is published for use by
persons engaged in that occupation and
2. Generally used and relied upon by them
therein. Sec. 45, Rule 130.
x. Learned treaties
When a published treatise, periodical or pamphlet
on a subject of history, law, science, or art
admissible in evidence?
When the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject. Sec. 46, Rule 130.
xi. Testimony or deposition at a former trial
Requisites:
1. The testimony or deposition is made by a
deceased person or unable to testify
2. The same was given in a former case, or
proceeding, judicial or administrative,
involving same parties and same subject
matter
3. The adverse party against the evidence is
presented had opportunity to cross-examine
the person who made the testimony in the
former proceeding. Sec. 47, Rule 130.
6.5.7. Opinion rule (Rule 130 C 7)
As a general rule, the opinion of a witness is
inadmissible because when a witness testifies, the
witness does so with respect to facts personally
observed by him and it is for the court to draw
 REMEDIAL LAW REVIEWER
conclusions from the facts testified to. Rule 48, Sec.
130.
Exceptions:
1. Opinion of expert witness under Sec. 49 of
Rule 130
2. Opinion of ordinary witness in cases
provided under Sec. 50 of the Rule 130
a) Opinion of expert witness
Rule on expert witness:
The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he
shown to posses, may be received in evidence. Sec.
49, Rule 130.
The court is not, however, bound by the opinion of
such expert witness such as handwriting expert.
Expert opinion is to be weighed or considered by the
court. They are not ordinarily conclusive.
In Loranzo vs Tabayag, the Supreme Court held that
a handwriting expert is not indispensable to prove
that the signature was indeed a forgery.
b) Opinion of ordinary witness
The witness may also testify on his impressions of
the emotion, behavior, condition or appearance of a
person. (44a)
The opinion of ordinary witness is admissible when it
is about:
a. The identity of a person about whom the
witness has adequate knowledge
b. Handwriting of a person with which the
witness has sufficient familiarity
c. The mental sanity of a person with whom he
is sufficiently acquainted
d. The impressions of the witness of the
emotion, behavior, condition or appearance
of a person. Sec. 50. Rule 130
Chapter VI Evidence
6.5.8. Character evidence (Rule 130 C 8)
Character is aggregate of the moral qualities which
belong to and distinguish a person
It is not the same as mans reputation because the Pg.
latter depends on attributes which others believe one 231
to possess.
a) Criminal cases
Evidence of bad moral character of the accused
In criminal case, the prosecution cannot prove the
bad moral character of the accused in its evidence-in-
chief. He can only do so in rebuttal.
The prosecution therefore must wait until the
accused puts his character in issue during the
proceedings.
The accused may prove his good moral character only
if it is pertinent to the moral trait involved in the
offense.
Evidence of character of the offended party
The good or bad moral character of the offended
party may be proved by the accused if it teneds to
establish in any reasonable degree of probability or
improbability of the offense charged. Sec. 51 [a][3]
Rule 130.
This rule pertains only in criminal cases and not in
administrative cases.
The character evidence must also be limited to the
traits and characteristics involved in the type of the
offense charged.
b) Civil cases
Character evidence in civil cases
In civil cases, evidence of moral character of a party is
admissible only when pertinent to the issue of
character involved int eh case.
Evidence of good character of a witness
Evidence of good character of a witness is not
admissible until such character has been impeached.
Sec. 14, Rule 132.
 REMEDIAL LAW REVIEWER
6.6. OFFER AND OBJECTIONS (Rule 132 C)
6.6.1. Offer of evidence
The court shall consider no evidence which has not
been formally offered. The purpose for which the
evidence is offered must be specified. Sec. 34, Rule
132
An evidence must be formally offered. Under the
Rules of Court, the court shall consider no evidence
which has not been formally offered.
Note where the absence of offer of testimonial
evidence was not objected to as when the witness
cross-examined by the adverse party despite of the
failure to offer, the court must consider the
testimony.
When the formal offer of evidence is required
a. In summary proceeding, because it is a
proceeding where there is no full blown trial;
b. Documents judicially admitted or taken
notice of;
c. Documents, affidavits, and depositions used
in rendering a summary judgment
d. Documents or affidavits used in deciding
quasi-judicial or administrative cases
e. Lost objects previously marked, identified,
described in the record, and testified to by
the witness who had been subjects of cross-
examination in respect to and said objects.
There are exceptional cases where the Court allowed
the admission of evidence not formally offered
provided that the following requisites are present:
a. The evidence must have been duly identified
by testimony duly recorded; and
b. The same must have been incorporated in
the records of the case
In People vs Lbnao, evidence of the prosecution in a
crime involving violation of Dangerous Drugs Act of
Chapter VI Evidence
1972, were considered by the court even without
their having been formally offered because the
evidence were properly identified by testimony duly
recoded and incorporated in the records of the case.
The counsel for the accused also cross-examined the
Pg.
witness. 232
6.6.2. When to make an offer
When evidence is to be offered:
a. As regards the testimony of the witness, the
offer is to be made at the time the witness is
called to testify
b. As regards documentary and object
evidence, they are to be offered after the
presentation of a partys testimonial
evidence. The offer is orally made unless
allowed by the court to be in writing. Sec. 35,
Rule 132.
Thus, the presentation of documentary or object
evidence for marking and identification in the course
of trial is not offer contemplated by the Rules. Failure
to object to the evidence at the time should not be
construed as a waiver of objection to evidence.
How an offer of evidence is made?
1. When a party makes a formal offer of his
evidence, he must state the nature or
substance of the evidence, and the specific
purpose for which the evidence is offered.
2. The court shall consider the evidence solely
for the purpose which it is offered, and not
for any other purposes. Spouses Rgudo vs
Fabella Estate Tenants Association, Inc, 466
SCRa 136
6.6.3. Objection
When an objection be made?
Objection to a question propounded in the course of
the oral examination of a witness shall be made as
 REMEDIAL LAW REVIEWER
soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to
within three (3) days after notice of thereof unless a
different period is allowed by the court. Sec. 36. Rule
132.
Note the objection of evidence cannot be made for
the first time on appeal, both because the party who
has failed to timely object becomes estopped from
raising the objection afterwards.
Objections made during the marking of evidence is
considered as premature, and not valid objection.
Purposes of objections:
1. To keep out inadmissible evidence that
would cause harm to a clients cause.
2. To protect the record
3. To protect the witness form being
embarrassed
4. To expose the adversarys unfair tactics like
his consistently asking obvious leading
questions
5. To give the trial court an opportunity to
correct his own errors
6. To avoid waiver of inadmissibility of an
otherwise inadmissible evidence
General and specific objections
An objection must point out the specific ground of the
objection, and if it does not do so, no error is
committed in overruling it. The last paragraph of Sec.
36, Rule 132 provides that the grounds for the
objections must be specified.
The objection must be specific enough to adequately
inform the court the rule of evidence of substantive
law that authorizes the exclusion of evidence.
The mere ground of irrelevant is not enough
because it is a general objection, however, when
there is no other ground for the objection, this should
Chapter VI Evidence
be deemed as substantially the equivalent of specific
objection.
Note that there are also cases where incompetency
of evidence is so palpable that a mere general
Pg.
objection is deemed sufficient, and where the portion
233
of evidence objected to is clearly pointed out, and its
illegality is apparent on its face, then the objection
must be allowed.
Formal and Substantive Objections
Formal objections one directed against the alleged
defect in the formulation of the question. E.g.
Ambiguous questions, leading and misleading
questions, multiple questions, and argumentative
questions.
Substantive objection one made and directed
against the very nature of the evidence. E.g.
Irrelevant and incompetent evidence, hearsay,
privileged communication, not authenticated, etc.
Objections may be waived
It is a rule of evidence, that any objection against the
admission of any piece of evidence must be made at
the proper time, and that, if not so made, it will be
understood to have been waived.
However, in case that a hearsay evidence has been
admitted, the same should not still be given weight.
Admissibility of evidence does not equate with eight
of evidence. It is only its admissibility that is being
waived, and not the credibility of the evidence.
6.6.4. Repetition of an objection
It is not necessary to repeat an objection when it
becomes reasonably apparent while the witness is
being examined, that he is asked questions which are
of the same class as those to which an objection has
been already made, whether such objection was
sustained or overruled.
Instead of repeating the objection, it is sufficient for
the objection be recorded as a continuing objection
to such class of objectionable questions. Sec. 37, Rule
132.
 REMEDIAL LAW REVIEWER
6.6.5. Ruling
The ruling of the court must be given immediately
after the objection is made, unless the court desires
to take a reasonable time to inform itself on the
question presented; but:
a. The ruling shall always be made during the
trial and
b. At such time as will give the party against
whom it is made an opportunity to meet the
situation presented by the ruling. Rule 38,
Rule 132.
General rule - The reason for sustaining or overruling
an objection need not be stated.
Exception - 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 or
grounds relied upon.
Note if the court fails to rule on the objection, the
same should be brought to the attention of the court.
The ruling of the judge like will be taken into
consideration or objection noted are not
appropriate rulings, neither sustaining nor overruling
the objection.
6.6.6. Striking out of an answer
What is the remedy if the witness answered the
question before the adverse party had the
opportunity to voice fully its objection?
Motion to strike out the answer, provided that the
same is meritorious. The court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper.
A motion to strike may be availed of in the following
instances:
a. When the answer is premature
b. When the answer of the witness is
irrelevant, incompetent, or otherwise
improper
Chapter VI Evidence
c. When the answer is unresponsive
d. When the witness becomes unavailable for
cross-examination through no fault on the
cross-examining party; or
e. When the testimony was allowed Pg.
conditionally and the condition for its 234
admissibility was not fulfilled. Sec. 39. Rule
130.
Note When in the start of the questioning, the same
is not objectionable, but the ground of objection
became apparent later on, which would render the
previous answers incompetent like it being a hearsay,
the adverse party may move for the stricken out of
the answers.
6.6.7. Tender of excluded evidence
If the court sustained the objection of the another
party on the admissibility of the evidence, what is
your remedy?
Tender of excluded evidence under the Sec. 40 of
Rule 132 which provides:
a. If documents or things offered in evidence
are excluded by the court, the offeror may
have the same attached to or made part of
the record.
b. If the evidence excluded is oral, the offeror
may state for the record the name and other
personal circumstances of the witness and
the substance of the proposed testimony
The same is also called offer of proof in other
jurisdiction.
May an objection be interposed to the manner of
tender of excluded evidence? The rules are silent on
this issue.
Distinguish formal offer of evidence from offer of
proof-
Formal Offer of Offer of Proof
Evidence
REMEDIAL LAW REVIEWER Chapter VI Evidence

Refers either to the Is the process which ha

offer of the testimony proponent of excluded
of a witness prior to the evidence tenders the
latters testimony, or same in accordance
the offer of the with the Section 40, Pg.
documentary and Rule 132 of the Rules of 235
object evidence after a Court.
party has presented his
testimonial evidence.

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