Beruflich Dokumente
Kultur Dokumente
GENERAL PRINCIPLES
I. CONCEPT OF REMEDIAL LAW
Q: What is Remedial Law?
ANS: Remedial Law prescribes the method of enforcing rights or obtaining redress
for their invasion (Bustos v. Lucero, G.R. No. L-2068, October 20, 1948).
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ANS: The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases;shall be uniform for courts of the same grade; and shall not
diminish, increase or modify substantive rights (Sec. 5 [5], Article VIII, 1987
Constitution of the Philippines).
Q: Does the Supreme Court have the power to suspend procedural rules?
ANS: Yes. The courts have the power to relax or suspend technical or procedural
rules or to except a case from their operation when compelling reasons so warrant
or when the purpose of justice requires it. What constitutes good and sufficient
cause is discretionary upon the courts(Republic of the Philippines v. Imperial, G.R.
No. 130906, February 11, 1999). Some of the reasons may be:
a. The existence of special or compelling circumstances;
b. The merits of the case;
c. A cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules;
d. A lack of any showing that the review sought is merely frivolous and dilatory; and
e. The other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan,
G.R. No. 167471, February 5, 2007).
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Q: Explain the rule that jurisdiction is conferred upon the court, not the judge.
ANS:When a case is filed in one branch, jurisdiction over the case does not attach
to the branch or judge alone to the exclusion of the other branches. Trial may be
held or proceedings continue by and before another branch or judge. The
apportionment and distribution of cases do not involve a grant or limitation of
jurisdiction; the jurisdiction attaches and continues to be vested in the RTC of the
province, and the trials may be held by any branch or judge of the court(Albano,
Remedial Law Reviewer, 2010 ed., p. 4).
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with the judgment of a co-equal court over which it has no appellate jurisdiction or
power of review. The doctrine applies with equal force to administrative
bodies(Villamor v. Salas, G.R. No. 101041, November 13, 1991).
JURISDICTION
Q: Define Jurisdiction.
ANS: Jurisdiction is the power and authority of the court to hear, try and decide a
case(Zamora v. Court of Appeals, G.R. No. 78206, March 19, 1990), as well as to
enforce or execute its judgments or final orders. The power to control the execution
of its jurisdiction is an essential aspect of jurisdiction(Echegaray v. Secretary of
Justice, G.R. No. 132601, January 19, 1999).
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the decisions made. The authority to decide a case at all, and not the decision
rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the
person and subject matter, the decision of all other questions arising in the case is
but an exercise of that jurisdiction(Herrera v. Barretto, G.R. No. 8692, September
10, 1913).
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Q: When may a party raise the issue of jurisdiction over the subject matter?
ANS: A party may object to the jurisdiction of the court as a ground in a motion to
dismiss(Sec. 1 [b], Rule 16) or as an affirmative defense in the answer(Sec. 6, Rule
16).
NOTE: The objection must have been raised so belatedly so as to give rise to the
presumption that the party entitled to assert it had abandoned or declined to assert
it. A party who has invoked the jurisdiction of the court over a particular matter to
secure affirmative relief cannot be permitted to afterwards deny that same
jurisdiction to escape liability(Tijam v. Sibonghanoy, G.R. No. L-21450, April 15,
1968).
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V. JURISDICTION OF COURTS
Q: Give an outline of the jurisdiction of courts in civil cases.
ANS: The following are the jurisdiction of courts in civil cases:
A.SUPREME COURT
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a. Court of Appeals;
b. Commission on Elections;
c. Commission on Audit;
d. Sandiganbayan.
B.COURT OF APPEALS
With the SC
a. Petitions for certiorari, prohibition or mandamus
against the RTC;
CONCURRENT b. Petitions for a Writ of Kalikasan;
c. Petitions for certiorari, prohibition or mandamus
against the NLRC (but according to theSt. Martin
Funeral Home v. Court of Appeals [G.R. No.
130866, Sept. 16, 1998] case, the petition should
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D.SANDIGANBAYAN
With the SC
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MUNICIPAL
CIVIL CASES REGIONAL TRIAL COURTS
TRIAL COURTS
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PhP200,000 in
Metro Manila,
exclusive of
interests and
costs (as
amended by
A.M. No. 02-11-
09-SC, effective
November 25,
2002).
SC may designate certain Petition for Habeas
branches of RTC to try Corpusor application
exclusively criminal cases, for bail in criminal
juvenile and domestic relations cases in the absence
cases, agrarian cases, urban of all RTC judges in
SPECIAL
land reform cases not falling the province or city.
w/in the jurisdiction of any
quasi-judicial body and other
special cases in the interest of
justice.
With the SC
Actions affecting ambassadors,
public ministers and consuls.
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where there is no
controversy or
opposition over the
land or in case of
contested lands, the
value does not
exceed PhP100,000.
G.FAMILY COURTS
FAMILY COURTS
NOTE: In areas where there are no Family Courts, the
following cases shall be adjudicated by the RTC.
Family Courts now have exclusive original jurisdiction over:
a. Petitions for guardianship, custody of children, habeas
corpus involving children (but the SC and the CA have
not been deprived of their original jurisdiction);
b. Petitions for adoption of children and the revocation
thereof;
c. Complaints for annulment and declaration of nullity of
marriage, matter relating to marital status and property
relations of husband & wife or those living together under
different status or agreement, and petitions for
dissolution of conjugal partnership of gains;
d. Support and/or acknowledgment;
e. Summary judicial proceedings under the Family Code
f. Petition for declaration of status of children, voluntary or
involuntary commitment of children, matter relating to
parental authority and other cases cognizable under P.D.
ORIGINAL No. 603, E.O. No. 56(series of 1996) and other related
laws.
SHARIAH COURTS
1. All cases involving custody, guardianship, legitimacy,
ORIGINAL paternity and filiation arising under the Code of
Muslim Personal Laws;
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These claims or
demands may be:
1. For money owed
under any of the
following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of
Mortgage
2. For damages arising
from any of the
following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable
settlement or an
arbitration award
involving a money
claim covered by this
Rule pursuant to Sec.
417.
Criminal Cases Covered
1. Violations of traffic When punishable by
laws, rules and imprisonment of not
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NOTE: The Totality Rule applies under the condition that the causes of action
in favor of the two or more plaintiffs or against the two or more defendants
should arise out of the same transaction or series of transactions and there
should be a common question of law or fact(Flores v. Mallare-Philipps, G.R.
No. L-66620, September 24, 1986).
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CIVIL PROCEDURE
I. ACTIONS
Q: What is an action?
ANS: An action is the legal and formal demand of ones right from another person
made and insisted in a court of justice(Bouviers Law Dictionary, Vol. I, 8th ed., 128).
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Q:What is the importance of the distinction between personal actions and real
actions?
ANS: The distinction between a real action and a personal action is important for
the purpose of determining the venue of the actions.
Q: What is a transitoryaction?
ANS: A transitory action is one which depends on where the party resides and
regardless of where the cause of action arose subject to Sec. 4 of Rule 4(e.g.
Action to recover a sum of money). A personal action is transitory.
Q: What are the different tests to determine the nature of the action?
ANS: The different tests are:
a. If the ultimate objective is to recover real property, then it is a real action (Tenorio
v. Pao, G. R. No. L-48117, November 27, 1986);
b. The allegations of facts and the relief prayed for may be determinative of the
nature of the action (Rone v. Claro, G.R. No. L-4472, May 8, 1952).
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Q: State the distinctions between failure to state a cause of action and lack
of cause of action.
ANS: The distinctions are the following:
a. There is failure to state a cause of action where the complaint does not
allege a sufficient cause of action; there is a lack of cause of action where
the evidence does not sustain the cause of action alleged;
b. The ground of failure to state a cause of action is raised in a motion to
dismiss under Rule 16 before a responsive pleading is filed and can be
determined only from the allegations in the initiatory pleading and not from
evidentiary or other matters aliunde; The ground of lack of cause of action
is raised in a demurrer to evidence under Rule 33 after the plaintiff has
rested his case and can be resolved only on the basis of the evidence he
has presented in support of his claim;
c. The first does not concern itself with the truth and falsity of the allegations
while the second arises precisely because the judge has determined the
truth and falsity of the allegations and has found the evidence
wanting(Domondon v. Lopez, A.M. No. RTJ-02-1696, June 20, 2002).
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Q: Christina and Owen filed a petition for the adoption of Zola, a minor child
of Meredith and Derek. After the filing of the petition, Zola killed her playmate
Sophia, hence, a suit for damages was filed by the parents of Sophia against
Christina and Owen, and Meredith and Derek. Are Meredith and Derek
indispensable parties?
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ANS: Yes. The incident occurred when parental authority was still lodged in
Meredith and Derek, the natural parents of the minor Zola. It would thus follow that
the natural parents who had then actual custody of the minor Zola, are the
indispensable parties to the suit for damages(Tamargo v. Court of Appeals, G.R.
No. 85044, June 3, 1992).
Q: Allan was riding a passenger jeepney driven by Ben that collided with a
car driven by Cesar, causing Allan injury. Not knowing who was at fault, what
is the best that Allan can do? (2011 Bar)
ANS: Sue both Ben and Cesar as alternative defendants(Sec. 13, Rule 3).
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D.CLASS SUIT
Q: What is a class suit?
ANS: A class suit is an action where one or more may sue for the benefit of all,
implying that if the parties are numerous and it is impractical to bring them all to
court, one or more may sue for their benefit(Sec. 12, Rule 3).
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NOTE: In such case, the heirs may be substituted for the deceased or if no legal
representative is named or if the one so named shall fail to appear within the
specified period, the court will order the opposing party to procure the appointment
of an executor or administrator for the estate of the deceased. In case of minor
heirs, the court may appoint a guardian ad litem for them(Sec. 16, Rule 3).
IV. VENUE
A.VENUE VERSUS JURISDICTION
Q: Distinguish venue from jurisdiction.
ANS: The differences between venue and jurisdiction are the following:
a. Venue is the place where the cause is instituted, heard or tried; jurisdiction
is the power of the court to hear and decide a case;
b. Venue is procedural while jurisdiction is substantive;
c. Venue may be waived; jurisdiction over the subject matter is conferred by
law and cannot be waived;
d. Venue may be changed by the written agreement of the parties; jurisdiction
cannot be the subject of the agreement of the parties;
e. Venue is not a ground for a motu proprio dismissal, except in summary
procedure; lack of jurisdiction of the subject matter is a ground for a motu
proprio dismissal.
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ANS: If the action is personal, the venue is transitory; hence, it is the residence of
the plaintiff or defendant at the option of the plaintiff(Sec. 2, Rule, 4).
NOTE: When the action is real, and the defendant is a non-resident not found in the
Philippines and the action affects the personal status of the plaintiff or any property
of the defendant in the Philippines, the venue shall be the residence of the plaintiff
or where the property or any portion thereof is situated(Sec. 3, Rule4).
V. PLEADINGS
Q: What are pleadings?
ANS: Pleadings are the written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6).
A.KINDS OF PLEADINGS
Complaint
Q: What is a complaint?
ANS: A complaint isan initiatory pleading alleging the plaintiffs cause or causes of
action. The names and residences of the plaintiff and defendant must be stated in
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the complaint (Sec. 3, Rule 6). It should contain a concise statement of the ultimate
facts constituting the plaintiffs cause of action. The jurisdiction of the court and the
nature of the action are determined by the averments in the complaint.
Answer
Q: What is an answer?
ANS: An answer is a responsive pleading in which a defending party sets forth his
defenses (Sec. 4, Rule 6). It only applies to civil cases. The equivalent of an answer
in a criminal case is the plea. It may be an answer to the complaint, counterclaim,
cross-claim, third-party complaint or complaint-in-intervention.
Negative Defenses
Q:What is anegative defense?
ANS:A negative defense 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 (Albano, p.
185).
Negative Pregnant
Q: What is a negative pregnant?
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Affirmative Defenses
Q: What is an affirmativedefense?
ANS:Affirmative defenses are in the nature of confession and avoidance. They
import that, admitting the allegations of the complaint to be true, yet the matters set
out in the answer deny or take away the plaintiffs right of action (La Corporacion
De Padres Agustinos Recoletos v. Crisostomo, G.R. No. L-10031, December 6,
1915).
Counterclaims
Q: What are counterclaims?
ANS: Counterclaims refer toclaims which a defending party may have against an
opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against
the plaintiff.
Compulsory Counterclaim
Q: What is a compulsory counterclaim?
ANS: A compulsory counterclaim is one which has the following elements:
a. It is cognizable by the regular courts of justice;
b. It arises out of, or is necessarily connected with the transaction or
occurrence which is the subject matter of the opposing partys claim;
c. It does not require for its adjudication the presence of third parties over
whom the court cannot acquire jurisdiction;
d. The court has jurisdiction to entertain it both as to amount and nature,
except that in an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and
e. The defending party has a counterclaim at the time he files his answer
(Sec. 7, Rule 6).
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Permissive Counterclaim
Q: What is a permissive counterclaim?
ANS: A counterclaim is permissive if anyof the elements of a compulsory
counterclaim is absent.
Q: Defendant Dante said in his answer: Plaintiff Perla claims that defendant
Dante owes her PhP4,000 on the mobile phone that she sold him; 2. But Perla
owes Dante PhP6,000 for the dent on his car that she borrowed. How should
the court treat the second statement? (2011 Bar)
ANS: A permissive counterclaim.
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ANS: A party who desires to plead a compulsory counterclaim should not file a
motion to dismiss. If he files a motion to dismiss and the complaint is dismissed
there will be no chance to invoke the counterclaim.
However, the dismissal of the complaint where the defendant has previously filed
an answer and a counterclaim, whether compulsory or permissive, shall allow the
latter to prosecute the counterclaim whether in the same or a separate action
notwithstanding such dismissal:
a. If 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 during the hearing on the affirmative
defenses, the court decides to dismiss the complaint, the counterclaim pleaded in
the answer, compulsory or permissive, is not dismissed(Sec. 6, Rule 16).
b. Where the plaintiff himself files a motion to dismiss his own complaint after the
defendant has filed an answer with counterclaim, the dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within 15 days from notice of the motion, he manifests his
preference to have his counterclaim resolved in the same action(Sec. 2, Rule 17).
c. Where the complaint is dismissed due to the plaintiffs fault and at a time when a
counterclaim has already been set up. The dismissal is also without prejudice to
the right of the defendant to prosecute his counterclaim in the same or separate
action(Sec. 3, Rule 17).
Cross-Claims
Q: What is across-claim?
ANS: A cross claim refers to any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter of either the original
action or of a counterclaim therein.A cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-claimant for all or part of
a claim asserted in the action against the cross-claimant(Sec. 8, Rule 6). A cross-
claim may be filed against the original cross-claimant(Sec. 9, Rule 6).
Complaint-in-Intervention
Q: What is a complaint-in-intervention?
ANS: A complaint-in-intervention refers to a pleading filed by a third person who is
not a party to the action but having an interest in the matter of the litigation and
asserting a claim against either or all of the original parties to the action. Such party
may, with leave of court, become a party to the pending action(Sec. 1, Rule 19).
Reply
Q: What is a reply?
ANS: A reply is the responsive pleading to an answer. Its functionis to deny or
allege facts in denial or avoidance of new matters alleged by way of defense in the
answer, thereby joining or making issue as to such new matters(Sec. 10, Rule 6).
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Q: Is a reply mandatory?
ANS:The general rule is that the filing of a reply is not mandatory and will not have
an adverse effect since all the new matters alleged in the answer will be deemed
controverted or denied(Sec. 11).
C.PARTS OF A PLEADING
Caption
Q: What is a caption?
ANS:Thecaption contains the name of the court, the title of the action which
indicates the names of the parties, andthe docket number, if assigned (Sec.1, Rule
7).
The court may, however, order the correction of the pleading, if the attending
circumstances are such that a strict compliance may be dispensed with in the
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A pleading is verified by an affidavit which declares that the affiant has read the
pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
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ANS: Where the plaintiff or a principal party is a juridical entity like a corporation it
may be executed by a properly authorized person. This person may be the lawyer
of the corporation so long as he is duly authorized by the corporation and has
personal knowledge of the facts required to be disclosed therein(National Steel
Corporation v. Court of Appeals, G.R. No. 134468, August 29, 2002).
D.ALLEGATIONS IN A PLEADING
Condition Precedent
Q: How are conditions precedent pleaded?
ANS: Where there are matters that must be complied with before a cause of action
will arise, a general averment of the performance or occurrence of all such
conditions precedent shall suffice (Sec. 3, Rule 8). But there must still be an
allegation that the specific condition precedent has been complied with, otherwise,
it will be dismissed for lack of cause of action.
Fraud, Mistake, Malice, Intent, Knowledge and Other Conditions of the Mind,
Judgments, Official Documents or Acts
Q: Discuss the manner of pleading fraud, mistake, intent, knowledge and
other conditions of the mind.
ANS: In pleading fraud or mistake, the circumstances constituting such fraud or
mistake must be stated with particularity. In pleading malice, intent, knowledge or
other conditions of the mind of a person, the same may be averred generally given
the difficulty in stating the particulars constituting these matters(Sec. 5, Rule 8).
Specific Denials
Q: What are the types of specific denials?
ANS:The three types of specific denial are: absolute denial, partial denial and
denial by disavowal of knowledge.
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NOTE: The following are, nevertheless, not deemed admitted by the failure to make
a specific denial:
a. Amount of unliquidated damages;
b. Conclusions in a pleading which do not have to be denied at all because only
ultimate facts need be alleged in a pleading;
c. Non-material averments or allegations are not deemed admitted because only
material allegations have to be denied(Sec. 11, Rule 8).
NOTE: The above defenses may be raised at any stage of the proceedings.
F.DEFAULT
Q: Define default.
ANS: Default occurs when the defending party fails to file his answer within the
reglementary period (Sec. 3, Rule 9). It does not arise from the failure of the
defendant to appear in the pre-trial or trial stage.
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c. There must be a motion to declare the defendant in default filed by the claiming
party;
d. There must be notice to the defendant by serving upon him a copy of such
motion(Herrera, p.807-808);
e. There must beproofof such failure to answer; and
f. There must be a hearing to declare the defendant in default(Sec 3, Rule 9).
Q: Gerry sued XYZ Bus Co, and Rico, its bus driver, for injuries Gerry
suffered when their bus ran off the road and hit him. Of the two defendants,
only XYZ Bus Co. filed an answer, alleging that its bus ran off the road
because one of its wheels got caught in an open manhole, causing the bus to
swerve without the drivers fault. Someone had stolen the manhole cover and
the road gave no warning of the danger it posed. On Gerrys motion and over
the objection of XYZ Bus Co., the court declared Rico, the bus driver in
default. Did the court act correctly? (2011 Bar)
ANS:No, since the court should have tried the case against both defendants upon
the bus companys answer.
Extent of Relief
Q: What is the extent of the relief that may be granted to a claimant?
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NOTE: In the first three instances, the court shall order the prosecuting
attorney to investigate whether or not collusion exists between the parties. If
there is no collusion, the court shall order said prosecuting attorney to
intervene for the State in order to see to it that the evidence submitted is not
fabricated (Sec. 3 [e], Rule 9).
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NOTE: The period to file an answer is further modified, in certain cases, by the
following: motion to dismiss, motion for a bill of particulars, motion for extension,
and when the last day falls on a Saturday, Sunday or Holiday.
Manner of Filing
Q: Discuss the manner of filing of pleadings.
ANS: The pleadings may be filed:
a. By presenting the original copy of the pleading, notice, appearance,
motion, order or judgment personally to the clerk of court who shall
endorse on the pleading the date and hour of filing; or
b. By registered mail which must be through the Registry Service. The date of
the mailing or payments or deposits as shown by the post office stamp on
the envelope or the registry receipt, shall be considered as the date of
filing, payment, or deposit in court (Sec. 3, Rule 13).
Modes of Service
Personal Service
Q: How is the personal service of pleadings done?
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ANS: The personal service is the preferred mode of service, with the other modes
being the exception to this general rule. It is made by:
a. Delivering a copy of the papers served personally to the party or his counsel; or
b. By leaving the papers in the counsels office with his clerk or a person having
charge thereof; or
c. If no person is found in his office, or his office is not known, or he has no office,
then by leaving a copy between 8 a.m. and 6 p.m. at the partys or counsels
residence, if known, with a person of sufficient age and discretion then residing
therein(Sec. 6, Rule 13).
Service by Mail
Q: How is service by mail done?
ANS: Service by mail may either be by registered mail or by ordinary mail.
Substituted Service
Q: When is substitutedservice available?
ANS: This mode is availed of only when there is failure to effect service either
personally or by mail when the office and residence of the party or counsel is
unknown. It is effected by the delivery of the copy to the clerk of court, with proof of
failure of both personal service and service by mail(Sec. 8, Rule 13).
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H.AMENDMENT
Q: Can the plaintiff still amend his complaint as a matter of right even if the
defendant has already been declared in default?
ANS: Yes. The Rules provide that amendment is a matter of right before a
responsive pleading is filed by the defendant. The order of default is deemed lifted
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and the defendant is given a new reglementary period within which to file an answer
to the amended complaint.
Formal Amendment
Q: What is a formal amendment?
ANS: A formal amendment cures a defect in the designation of the parties and
other clearly clerical or typographical errors. It may be summarily corrected by the
court at any stage of the action, at its initiative or on motion, provided no prejudice
is caused to the adverse party(Sec. 4, Rule 10).
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c. When an amended pleading is filed, a new copy of the entire pleading must be
filed, incorporating the amendments, which shall be indicated by appropriate
marks; a supplemental pleading does not require the filing of a new copy of the
entire pleading.
VI. SUMMONS
Q: What is a summons?
ANS: Summons is a writ by which a defendant is notified of the action brought
against him(Hock v. Court of Appeals, G.R. No. L-60848, May 20, 1991). It is a
means by which the court acquires jurisdiction over the person of the defendant.
The issuance of summons is mandatory on the part of the clerk of court upon the
filing of the complaint and the payment of the requisite legal fees.
B.VOLUNTARY APPEARANCE
Q: What is the effect of a voluntary appearance?
ANS: Where the defendant makes a voluntary appearance in the action it shall be
the equivalent to service of summons and jurisdiction is acquired over him(Sec. 20,
Rule 14).
C.SERVICE IN PERSON
Q: How is service in person made?
ANS: In an action in personam the preferred mode of serving summons is through
service in person. The defendant is handed a copy of the summons in person and
should he refuse to sign for it, the server shall tender it to him (Sec. 6, Rule 14).
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Only when service in person cannot be made promptly and after all efforts to do so
are exerted, may substituted service be resorted to.
D.SUBSTITUTED SERVICE
Q: How is substituted service of summons done?
ANS: Where personal service of summons cannot be made for justifiable causes
within a reasonable period of time,substituted service may be had. It is carried out
by leaving copies of the summons at the defendants residence with a person of
suitable age and discretion residing therein, or leaving copies at the defendants
office or regular place of business with some competent person in charge
thereof(Sec. 7, Rule 14).
NOTE: The following facts must first be shown for the service to be valid:
a. The impossibility of personal service within a reasonable time;
b. The efforts exerted to locate the person to be served; and
c. Service upon a person of sufficient age and discretion residing in the
same place or some competent person in charge of his office or regular
place of business.
NOTE: The specific actions, which are either in rem or quasi in rem that will
justify extraterritorial service of summons in actions involving a nonresident are:
i. Actions that affect the personal status of the plaintiff;
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ii. Actions which relate to, or the subject matter of which is property within the
Philippines, in which the defendant claims a lien or interest, actual or
contingent;
iii. Actions in which the relief demanded consists, wholly or in part, in excluding
the defendant from an interest in property located in the Philippines; and
iv. When the defendants property has been attached in the Philippines.
If the foreign private juridical entity is not registered in the Philippines or has no
resident agent, service may, with leaveof court, be effected out of the Philippines
through any of thefollowing means:
a. By personal service coursed through the appropriate court in the foreign country
with the assistance of the Department of Foreign Affairs;
b. By publication once in a newspaper of generalcirculation in the country where the
defendant may be found and by serving a copy of the summons and the court
order by-registered mail at the last known addressof the defendant;
c. By facsimile or any recognized electronic means that could generate proof of
service; or
d. By such other means as the court may in its discretion direct(AM. No. 11-3-6-
SC).
H.PROOF OF SERVICE
Q. Discuss the rules regarding the proof of service.
ANS: In proving the service of summons, the following rules are applicable:
a. The proof of service shall be made in writing by the server and shall state
the manner, place and date of service, specify any accompanying papers
and the name of the person who received the summons. It shall be sworn
to if made by a person other than a sheriff or his deputy (Sec. 18, Rule 14).
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VII. MOTIONS
A.MOTIONS IN GENERAL
Definition of a Motion
Q: What is a Motion?
ANS: A motion is an application for relief other than by a pleading(Sec. 1, Rule 15).
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notice of hearing shall be addressed to all the parties concerned and shall specify
the time and date of the hearing which shall not be later than 10 days after the filing
of the motion (Sec. 5, Rule 15). Proof of service is necessary as no written motion
set for hearing shall be acted upon by the court without proof of service
thereof(Sec. 6, Rule 15).
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ANS: A pro forma motion refers to a motion which does not satisfy the
requirements of the Rules and which will be treated as a motion intended to delay
the proceedings. It is that which does not comply with the rules on motion and is
considered as one filed merely to delay the proceedings (Marikina Development
Corp., v. Flojo, G.R. No. 110801, December 8, 1995).
NOTE: After the service of the bill of particulars or after notice of the denial of the
motion, the movant may file his responsive pleading within the period to which he
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was entitled to at the time the motion was filed. Such period shall not be less than 5
days in any event(Sec. 5, Rule 12).
C.MOTION TO DISMISS
Grounds
Q: What are the grounds of a motion to dismiss?
ANS: Under Section 1 of Rule 16 of the Rules of Court, the following may be used
as a ground for a motion to dismiss:
a. Lack of jurisdiction over the defendant;
b. Lack of jurisdiction over the subject matter of the claim;
c. Improper venue;
d. Plaintiff has no legal capacity to sue;
e. Litis pendentia;
f. Res judicata;
g. Prescription;
h. Failure to state a cause of action;
i. The claim has been paid, waived, abandoned or otherwise extinguished;
j. The claim is unenforceable under the Statute of Frauds;
k. Non-compliance with a condition precedent for filing the claim (Sec. 1, Rule 16).
Resolution of Motion
Q: What actions may the court take in resolving the motion?
ANS: After hearing the court may:
a. Dismiss the action or claim;
b. Deny the motion; or
c. Order the amendment of the pleading.
NOTE: The resolution of the motion shall not be delayed for the reason that
the ground relied upon is indubitable. It shall state clearly and distinctly the
reason for the courts action(Sec. 3, Rule 16).
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Bar by Dismissal
Q: Which grounds have the effect of barring the action?
ANS: When the dismissal is for any of the following grounds, the action shall be
barred and may no longer be re-filed:
a. Res judicata
b. Prescription
c. Payment, waiver, abandonment or extinguishment of the claim
d. Unenforceability of the claim under the Statute of Frauds (Sec. 5, Rule 16).
VIII.DISMISSAL OF ACTIONS
A.DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE
Q: When can the plaintiff file for dismissal of the complaint by notice?
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ANS: The plaintiff, at any time beforethe service of an answer or a motion for
summary judgment, may file a notice of dismissal of his complaint. Upon its filing
the court shall issue an order confirming such dismissal(Sec. 1, Rule 17).
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ANS: Since the dismissal has the effect of an adjudication upon the merits of the
case, appeal is the proper remedy.
IX. PRE-TRIAL
A.CONCEPT OF PRE-TRIAL
Q: What is a pre-trial?
ANS:The pre-trial is a mandatory conference and personal confrontation before the
judge between the parties and their respective counsel. It is conducted after the last
pleading has been served and filed, with the plaintiff having the duty to move ex
parte that the case be set for pre-trial(Sec. 1, Rule 18).
Q: Is pre-trial mandatory?
ANS: Pre-trial is mandatory in all civil cases, in all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Municipal Trial Court in Cities, Municipal Trial
Court, Metropolitan Trial Courts, and Municipal Circuit Trial Court. It is likewise
mandatory in both civil and criminal cases under the Rules on Summary Procedure.
C.NOTICE OF PRE-TRIAL
Q: To whom shall the notice of the pre-trial be served?
ANS: The notice of pre-trial shall be served on the counsel of the party if the latter
is represented by counsel. Otherwise, the notice shall be served on the party
himself. The counsel is charged with the duty of notifying his client of the date, time
and place of the pre-trial(Sec. 3, Rule 18).
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Q: Discuss the effect of the failure of the defendant to appear during the pre-
trial.
ANS: The failure of the defendantto appear shall be cause to allow the plaintiff to
present his evidence ex parte and for the court to render judgment on the basis of
the evidence presented by the plaintiff (Sec. 5, Rule 18). However, the defendant
shall not be declared in default. The order to present evidence ex parte is
interlocutory and thus not appealable. The defendant may ask for reconsideration
and if the denial is with grave abuse of discretion he may file a petition for certiorari.
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If there is no existing arbitration agreement at the time the case is filed but the
parties subsequently enter into an arbitration agreement, they may request the
court to refer their dispute to arbitration at any time during the proceedings(Rule
4.2).
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After arbitration commences, any party to arbitration may also petition the
appropriate court for judicial relief from the ruling of the arbitral tribunal on a
preliminary question upholding or declining its jurisdiction(Rule 3.12).
X. INTERVENTION
Q: State the nature of an intervention.
ANS: Intervention is a remedy by which a third party, not originally impleaded in a
proceeding, becomes a litigant therein to enable him to protect or preserve a right
or interest which may be affected by such proceeding (First Philippine Holdings
Corp. v. Sandiganbayan, G.R. No. 88345, February 1, 1996).
B.TIME TO INTERVENE
Q: Within what period may a person intervene in a case?
ANS: The motion to intervene may be filed at any time before rendition of judgment
by the trial court (Sec. 2, Rule 19).
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ANS: As a general rule, no. Under the rules, the motion to intervene may be filed at
any time before rendition of judgment by the trial court. However, the Supreme
Court has recognized the following exceptions:
a. Intervention may be allowed on appeal, provided the intervenor is an
indispensable party (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13,
1952);
b. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, January
27, 1995).
c. Where is it necessary to protect some interest which cannot be protected, or to
preserve the intervenors right to appeal (Herrera, p.847).
XI. SUBPOENA
A.SUBPOENA DUCES TECUM
Q: What is a subpoena duces tecum?
ANS: It is a process directed to a person requiring him to bring with him books,
documents, or other things under his control (Sec. 1, Rule 21).
B.SUBPOENA AD TESTIFICANDUM
Q: What is a subpoena ad testificandum?
ANS: It is a process directed to a person requiring him to attend and to testify:
a. At the hearing or the trial of an action; or
b. At any investigation conducted by competent authority; or
c. For the taking of his deposition (Sec. 1, Rule 21).
C.SERVICE OF SUBPOENA
Q: How shall a subpoena be served?
ANS: Service of subpoena shall be made in the same manner as personal or
substituted service of summons.
a. The original shall be exhibited and a copy thereof be delivered to the person on
whom it is served;
b. Tendering to him the fees for one days attendance and the kilometrage allowed
by the 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;
c. The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance; and
d. If the subpoena is duces tecum, the reasonable cost of producing the books,
documents, or things demanded shall also be tendered (Sec. 6, Rule 21).
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E.QUASHING OF SUBPOENA
Q:When may the court quash a subpoena duces tecum?
ANS: A subpoena duces tecum may be quashed upon motion promptly made and,
in any event, before the time specified therein. It must be shown that:
a. It is unreasonable and oppressive; or
b. The relevancy of the books, documents or things does not appear; or
c. If the person in whose behalf the subpoena is issued failed to advance the
reasonable cost of the production thereof (Sec. 4 [a], Rule 21); or
d. The witness fees and kilometrage allowed by the Rules were not tendered when
the subpoena was served (Sec. 4 [b], Rule 21).
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possession or power, in order to maintain the right or title of the party asking it, in a
suit or proceeding (Insular Life Assurance Co. v. Court of Appeals, G.R. No. 97654,
November 14, 1994).
Meaning of Deposition
Q: What is a deposition?
ANS: A deposition is a written testimony of a witness given in the course of a
judicial proceeding, in advance of the trial or hearing, upon oral examination or in
response to written interrogatories, and where an opportunity is given for cross-
examination (16 Am. Jur. 699).
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ANS: A deposition may be used against any party who was present or represented
at the taking of the deposition or who had due notice thereof, according to the
following:
a. For the purpose of contradicting or impeaching the testimony of the deponent as
witness;
b. The deposition of a party or of any one, who at the time of 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.
c. The deposition of a witness, whether or not a party, may be used by any part for
any purpose if the court finds that:
i. The witness is dead; or
ii. The witness resides more than 100 km. from the place of trial, or is out of the
Philippines, unless such absence was procured by the party offering the
deposition; or
iii. The witness is unable to testify due to age, sickness, infirmity or imprisonment;
or
iv. The party offering the deposition has been unable to procure the attendance
of the witness by subpoena; or
v. 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.
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 (Sec. 4, Rule 23).
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Q: When may a party serve upon the adverse party a written request for
admission?
ANS: A written request for admission may be served upon the other party at any
time after the issues have been joined (Sec. 1, Rule 26).
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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 (Sec. 2, Rule 26).
Effect of Admission
Q: What is the effect of an admission?
ANS: Any admission made pursuant to the request for admission shall be for the
purpose of the pending action only and cannot be used as such for any other
purpose nor may the admission be used against the admitting party in any other
proceeding (Sec. 3, Rule 26).
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XIII. TRIAL
Q: What is a trial?
ANS: Trial is an examination before a competent tribunal of the facts or law put in
issue in a case, for the purpose of determining the issue (Ballentines Law
Dictionary, 2nd ed., p.1299).
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ANS: Yes. 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. No trial shall thus be held. If the parties agree to only
some facts in issue trial shall be held as to the disputed facts in such order as the
court shall prescribe (Sec. 6, Rule 30).
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G.TRIAL BY COMMISSIONERS
However, such powers are subject to the specifications and limitations stated in the
order of reference which is furnished to the commissioner. The order may:
a. Direct him to report only upon particular issues;
b. Direct him to or perform particular acts;
c. Direct him to receive and report evidence only; and
d. Fix the date for beginning and closing the hearings and for the filing of his report
(Sec. 3, Rule 32).
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Q: What shall the court consider during the hearing on the commissioners
report?
ANS: When the reports come up for confirmation, the court cannot be expected to
re-hear the case upon the entire record, but will review only so much as may be
drawn in question by proper objections (Kreidt v. McCullough and Co., G.R. No. L-
11362, January 24, 1918). After the hearing, the court shall issue an order
adopting, modifying or rejecting the report in whole or in part or recommit it to the
commissioner or the court (Sec. 11, Rule 32).
A.GROUND
Q: On what ground may a demurrer to evidence be filed?
ANS: After plaintiff has finished presenting his evidence, the defendant may move
for the dismissal of the complaint on the ground that upon the facts and the law, the
plaintiff has shown no right to relief or insufficiency of evidence (Sec. 1, Rule 33).
B.EFFECT OF DENIAL
Q: Give the effect of a denial of the demurrer to evidence.
ANS: The defendant shall have the right to present his evidence. Such denial of the
demurrer to evidence does not deprive the defendant of the right to adduce
evidence on his behalf (Sec. 1, Rule 33).
C.EFFECT OF GRANT
Q: What is the effect of granting the demurrer to evidence?
ANS: The case shall be dismissed. A demurrer to evidence is an instrument for the
expeditious termination of an action, thus, abbreviating judicial proceedings (Heirs
of Pedro Pasag, et al. v. Sps. Parocha, et al., G.R. No. 155483, April 27, 2007).
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Q: Carlos filed a complaint against Pedro in the RTC of OzamisCity for the
recovery of the ownership of a car. Pedro filed his answer within the
reglementary period. After the pre-trial and actual trial, and after Carlos has
completed the presentation of his evidence, Pedro moved for the dismissal of
the complaint on the ground that under the facts proven and the law
applicable to the case, Carlos is not entitled to the ownership of the car. The
RTC granted the motion for dismissal. Carlos appealed the order of dismissal
and the appellate court reversed the order of the trial court. Thereafter, Pedro
filed a motion with the RTC asking the latter to allow him to present his
evidence. Carlos objected to the presentation of evidence by Pedro. Should
the RTC grant Pedros motion to present his evidence? Why? (2001 Bar)
ANS: Pedros motion should be denied. Under the Rules, if the motion for dismissal
is granted but on appeal the order of dismissal is reversed, the defendant shall be
deemed to have waived the right to present evidence (Sec. 1, Rule 33; Answers to
the Bar Examination Questions by the UP Law Complex and Philippine Law
Schools Association 2006).
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B.CONTENTS OF A JUDGMENT
Q: What are the parts of a judgment?
ANS: The judgment shall have the following parts:
a. The opinion of the court or the ratio decidendi Contains the findings of
facts and conclusions of law;
b. The disposition of the case or the fallo The final and actual disposition of
the rights litigated (the dispositive part); and
c. Signature of the judge (Herrera, p.155).
Q: If there is a conflict between the ratio decidendiand the fallo, which should
prevail?
ANS: The fallo controls. This rule rests on the theory that the fallo is the final order
while the opinion in the body is merely a statement ordering nothing. The rule
applies when the dispositive part of a final decision or order is definite, clear, and
unequivocal, and can wholly be given effect without need of interpretation or
construction (Obra v. Sps. Badua, et al., G.R. No. 149125, August 9, 2007).
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ANS: Where an answer fails to tender an issue or otherwise admits the material
allegations of the adverse partys pleading, the court may, on motion, direct
judgment on such pleading (Sec. 1, Rule 34).
D.SUMMARY JUDGMENTS
Q: What do you understand by a Summary Judgment?
ANS: A summary judgment, or accelerated judgment, is a procedural technique to
promptly dispose of cases where the facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits on record, or for weeding out
sham claims or defenses at an early stage of the litigation to avoid the expense and
loss of time involved in a trial (Monterey Foods Corp., et al. v. Eserjose, G.R. No.
153126, September 11, 2003).
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Q: After defendant has served and filed his answer to plaintiffs complaint
fordamages before the proper RTC, plaintiff served and filed a motion (with
supporting affidavits) for a summary judgment in his favor upon all of his
claims. Defendant served and filed his opposition (with supporting affidavits)
to the motion. After due hearing, the court issued an order (1) stating that the
court has found no genuine issue as to any material fact and thus concluded
that plaintiff is entitled to judgment in his favor as a matter of law except as to
the amount of damages recoverable, and (2) accordingly ordering that
plaintiff shall have judgment summarily against defendant for such amount
as may be found due plaintiff for damages, to be ascertained by trial on
October 7, 2004, at 8:30 o'clock in the morning. May defendant properly take
an appeal from said order? Or, may defendant properly challenge said order
thru a special civil action for certiorari? Reason. (2004 Bar)
ANS: No, defendant may not appeal from said order because it is a partial
summary judgment. Such judgment is merely interlocutory and not a final judgment
(Province of Pangasinan v. Court of Appeals, G.R. No. 104266, March 31, 1993). It
does not dispose of the case totally because the case can still be tried on the basis
of the remaining issue, which is the award of damages. But the defendant may
challenge the order through a special civil action for certiorari, if there is grave
abuse of discretion (Sec. 1, Rule 65; Answers to the Bar Examination Questions by
the UP Law Complex and Philippine Law Schools Association 2006).
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Q: What is the form of a judgment or final order determining the merits of the
case?
ANS: The same 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
him and filed with the clerk of court (Sec. 1, Rule 36).
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Q: What shall be deemed the date of entry of judgment and what is its
importance?
ANS: The date of finality of the judgment or final order shall be deemed to be the
date of its entry (Sec. 2, Rule 36). The date of entry is significant in reckoning
relevant periods in some proceedings such as:
a. The execution of a judgment by motion is within 5 years from the entry of
judgment (Sec. 6, Rule 39);
b. The filing of a petition for relief from judgment must be not more than 6 months
from the entry of judgment or final order (Sec. 3, Rule 38).
On the other hand, a motion for reconsideration may be filed on the following
grounds:
a. That the damages awarded are excessive;
b. That the evidence is insufficient to justify the decision or final order; or
c. That the final order is contrary to law (Sec. 1, Rule 37).
When to File
The period to file either motion shall be within the period for taking an appeal of the
decision (Sec. 1, Rule 37).
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On the other hand, where a motion for reconsideration is granted as when the court
finds that there has been excessive award of damages or that the judgment or final
order is contrary to the evidence or law, the court may amend such judgment or
final order accordingly (Sec. 3, Rule 37).
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B.APPEALS IN GENERAL
Q: What is an appeal?
ANS: An appeal is the resort to a superior or appellate court to review the decision
of an inferior court or an administrative agency (Blacks Law Dictionary, 5th ed.,
p.88).
Modes of Appeal
Q: Outline the modes of appeal from the decision of the Regional Trial Court.
ANS:
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Period to Appeal
Q: Within what period should an appeal be taken?
ANS:
a. In the case of an ordinary appeal under Rule 40, an appeal may be taken
within 15 days after notice to the appellant of the judgment or final order
appealed from. Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within 30 days after notice of
the judgment or final order.
b. In the case of an ordinary appeal under Rule 41, an appeal by notice of
appeal may be taken within 15 days after notice of the judgment or final
order appealed from. In special proceedings and in cases of multiple or
separate appeals where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within 30 days after notice of
the judgment or final order. However, an appeal in habeas corpus cases
shall be taken within 48 hours from notice of the judgment or final order
appealed from.
c. In a Petition for Review under Rule 42, the appeal may be taken within 15
days from notice of the decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration filed in due time after
judgment;
d. In a Petition for Review under Rule 45, the appeal may be taken within 15
days from notice of the award, judgment, final order or resolution, or
from the date of its last publication or of the denial of petitioners motion
for new trial or reconsideration duly filed in accordance with the governing
law of the court or agency a quo.
Perfection of Appeal
Q: When is an appeal deemed perfected?
ANS:
a. A partys appeal by notice of appeal is deemed perfected as to him by the
filing of the notice of appeal in due time.
b. A partys appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon approval of the record on appeal
filed in due time (Sec. 4, Rule 40; Sec. 9, Rule 41).
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a. In appeals by notice of appeal, the court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.
b. In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the record on appeal filed in
due time and the expiration of the time to appeal by the other parties (Sec.
4, Rule 40; Sec. 9, Rule 41).
NOTE: Where the MTC dismisses a case for lack of jurisdiction and appeal of such
dismissal is made to the RTC, should the latter affirm the dismissal and if it has
jurisdiction over the subject matter, the RTC is obliged to try the case as if it were
originally filed with it (Sec. 8, Rule 40).
Appeals from Judgments or Final Orders of the Court of Tax Appeals (CTA)
Q: To what court is a resolution of a division of the CTA on a motion for
reconsideration or new trial appealable?
ANS: A party adversely affected by a resolution of a divisionof the CTA on a motion
for reconsideration or new trial, may file a petition for review with the CTA en banc
(A.M. No. 05-11-07-CTA).
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Q: With what court should a petition for relief from judgment be filed?
ANS: The petition may be filed with the same court where the original judgment
was rendered (Sec. 1, Rule 38).
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Contents of Petition
Q: State the form and contents of a petition for relief.
ANS: The petition must be verified, and accompanied by an affidavit showing fraud,
accident, mistake, or excusable negligence. It must also be have an affidavit of
merit which shows the facts constituting the petitioners good and substantial cause
of action or defense as the case may be (Sec. 3, Rule 38).
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ANS: If it was availed of, or could have been availed of, in a motion for new trial or
petition for relief (Sec. 2, Rule 47).
NOTE: In addition to these, the court may include the award of damages,
attorneys fees and other relief (Sec. 9, Rule 47).
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b. Satisfaction by levy If the judgment obligor cannot pay all or part of the
obligation in cash, certified check payable to the judgment obligee or other
mode of payment acceptable to the latter, the officer shall levy upon the
properties of the judgment obligor.
NOTE: The judgment obligor shall have the option of selecting which
property shall be levied upon sufficient to cover the judgment debt. Should
he fail to exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the personal properties
are insufficient. The sheriff shall sell only a sufficient portion of the
properties of which has been levied and only so much of them as is
sufficient to satisfy the judgment and lawful fees.
c. Garnishment of debts and credits The officer may levy on the debts due
the judgment debtor including bank deposits, financial interests, royalties,
commissions and other personal property not capable of manual delivery in
the possession or control of third parties (Sec. 9, Rule 39).
Q: What is a levy?
ANS:Levy is the act whereby the sheriff sets apart or appropriates a part or the
whole of the properties of the judgment obligor to satisfy the command of the writ
(Fiestan v. Court of Appeals, G.R. No. 81552, May 28, 1990).
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ANS: It is one which can only be complied with by the judgment obligor because of
his personal qualifications or circumstances. It is one other than payment of money
or for the sale or delivery of real or personal property (Albano, p.502).
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ANS: The third person claiming a property levied upon has the option to resort to
any of the following remedies:
a. Summary hearing before the court which authorized the execution where the
court may command that the property be released from the mistaken levy and
restored to the rightful owner or possessor; or
b. Terceria or third-party claim filed with the sheriff under Sec. 16, Rule 39;
c. Action for damages on the bond posted by judgment oblige filed within 120 days
from the date of the filing of the bond; or
d. Independent reinvindicatory action.
Q: What is the remedy of a third person whose property is subject of the writ
of replevin?
ANS: A third person, not a party to the action, whose property is the subject of the
writ of replevin, may avail of terceriaby making an affidavit of his title thereto or his
right of possession thereof, stating the grounds of such right or title. The affidavit
must be served upon the sheriff and a copy thereof upon the applicant (Sec. 7, Rule
60).
F.RULES ON REDEMPTION
Q: True or False: The right of redemption is available to any type of property.
ANS: False. The right of redemption is available only to real properties (Sec. 27,
Rule 39).
Q: Within what period may the judgment obligor or redemptioner redeem the
property from the purchaser?
ANS: He may redeem the property within 1 yearfrom the date of the registration of
the certificate of sale. All subsequent redemptionersmay redeem within 60 daysfrom
the last redemption (Sec. 28, Rule 39). In all cases the judgment obligor shall have
the entire period of 1 year from the date of the registration of the sale to redeem the
property. If the judgment obligor redeems, no further redemption is allowed and he
is restored to his estate (Sec. 29, Rule 39).
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Q: What is the effect if no redemption is made within one year form the
registration of the certificate of sale?
ANS: The purchaser shall be entitled to a conveyance and possession of the
property; or, if so redeemed whenever 60 days have elapsed and no other
redemption has been made, and notice thereof given, and the time for redemption
has expired, the last redemptioner is entitled to the conveyance and possession.
Under the expiration of the right of redemption, the purchaser or redemptioner shall
be substituted to and acquire all the rights, title, interest and claim of the judgment
obligor to the property as of the time of the levy (Sec. 33, Rule 39).
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C.PRELIMINARY ATTACHMENT
Q: What is a writ of preliminary attachment?
ANS:It is a provisional remedy issued upon order of the court where an 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 secured in said action by the attaching creditor against the
defendant (Adlawan v. Tomol, G.R. No. 63225, April 3, 1990).
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Q: Arthur, a resident foreigner, sold his car to Bren. After being paid but
before delivering the car, Arthur replaced its original sound system with an
inferior one. Bren discovered the change, rejected the car, and demanded the
return of his money. Arthur did not comply. Meantime, his company
reassigned Arthur to Singapore. Bren filed a civil action against Arthur for
contractual fraud and damages. Upon his application, the court issued a writ
of preliminary attachment on the grounds that Arthur is a foreigner, he
departed from the Philippines and he was guilty of fraud in contracting with
Bren. Is the writ of preliminary attachment proper? (2011 Bar)
ANS: Yes. One of the grounds for the issuance of a writ of preliminary attachment
is that the party against whom the writ is issued is guilty of a fraud in incurring the
obligation upon which the action is brought, or in the performance thereof (Sec. 1
[d], Rule 57). Arthur is guilty of a fraud in changing the sound system and its
components before delivering the car bought from him, hence, the writ of
preliminary attachment is proper.
Requisites
Q: What are the requisites for the issuance of a writ of preliminary
attachment?
ANS:The requisites for the issuance of a writ of preliminary attachment are:
a. The case must be any of those where preliminary attachment is proper.
b. The applicant must file a motion whether ex parte or with notice and
hearing.
c. The applicant must show by affidavit that there is no sufficient security for
the claim sought to be enforced and that the amount claimed in the action
is as much as the sum of which the order is granted above all
counterclaims.
d. The applicant must post a bond executed to the adverse party (Secs. 2 and
3, Rule 57).
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a. Deposit with the court from which the writ was issued an amount equal to the
value of the bond fixed by the court in the order of attachment or an amount
equal to the value of the property to be attached, exclusive of costs;
b. Give a bond executed in favor of the applicant, in an amount equal to the bond
posted by the latter to secure the attachment or in an amount equal to the value
of the property to be attached, exclusive of costs (Sec. 5, Rule 57).
NOTE: 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 (Sec. 15,
Rule 57).
D.PRELIMINARY INJUNCTION
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Requisites
Q: What are the requisites for the issuance of a writ of preliminary injunction?
ANS: The requisites are the following:
a. There must be a verified application;
b. The applicant must establish that he has a right to relief or a right to be
protected and that the act against which the injunction is sought violates
such right;
c. The applicant must establish that there is a need to restrain the
commission or continuance of the acts complained of and if not enjoined
would work injustice to him;
d. A bond must be posted, unless otherwise exempted by the court;
e. The threatened injury must be incapable of pecuniary estimation (Sec. 5,
Rule 58).
Kinds of Injunction
Q: What are the kinds of injunction?
ANS: They are:
a. Preliminary Prohibitory Injunction It is an order prior to judgment or final
order, requiring a party, court, agency or person to refrain from a particular
act or acts. The purpose is to preserve the status quo by preventing the
enjoined act from being performed.
b. Preliminary Mandatory Injunction It is an order prior to judgment or final
order, requiring the performanceof a particular act or acts. In mandatory
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injunction, the act has already been performed and has violated the rights
of the applicant and the order seeks to restore the status quo prior to such
violation (Sec. 1, Rule 58).
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F.RECEIVERSHIP
Q: Who is a receiver?
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Requisites
Q: What are the requisites in the application for receivership?
ANS: They are:
a. There must be a verified application;
b. That the party applying for receivership has an existing interest in the
property in litigation;
c. The case must be any one of those stated under Sec. 1, Rule 59;
d. The posting of a bond by the applicant (Sec. 2, Rule 59);
e. Receiver must be sworn to perform his duties faithfully and file a bond
(Sec. 4, Rule 59).
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Termination of Receivership
Q: When shall receivership be terminated?
ANS: When the court:
a. Shall have determined that necessity for a receiver no longer exists (Sec.
8, Rule 59);
b. In his opinion finds that the receivership is not justified by the facts and
circumstances of the case (Sanson v. Araneta, G.R. No. L-43482, July 28,
1937); or
c. Is convinced that the powers are abused (Duque v. CFI of Manila, G.R. No.
L-18359,March 26, 1965).
G.REPLEVIN
Q: Give the concept of replevin.
ANS:Replevin is a proceeding by which the owner or one who has a general or
special property in the thing taken or detained seeks to recover possession in
specie, the recovery of damages being only incidental (Am. Jur. 6).
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ANS: The subject matter of a replevin is personal property (Sec. 1, Rule 60). It
cannot be incorporeal property (Albano, p.688).
Requisites
Q: State the requisites for the issuance of a writ of replevin.
ANS: They are:
a. The filing of an application for writ of replevin at the commencement of the
action or at any time before the defendant answers (Sec. 1, Rule 60);
b. The application must contain an affidavit containing the matters
enumerated under Sec. 2 of Rule 60;
c. The applicant must give a bond, executed to the adverse party and double
the value of the property (Sec. 2, Rule 60).
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NOTE: If for any reason, the property is not delivered to the applicant, the sheriff
must return it to the adverse party (Sec. 6, Rule 60).
Q: What is the effect if a third person claims title to the property taken by the
sheriff?
ANS: When a third-party claimant makes an affidavit of his title to the property or
his right to the possession thereof, and serves such affidavit to the sheriff and a
copy thereof to the attaching party, the sheriff shall not be bound to keep the
property under replevin unless the applicant files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
levied upon. Claim for damages for the taking or keeping the property must be filed
within 120 days from filing of the bond (Sec. 7, Rule 60).
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D.INTERPLEADER
Q: What is interpleader?
ANS: An interpleader is a remedy whereby a person, who has property in his
possession or an obligation to perform, either wholly or partially, but who claims no
interest in the subject, or whose interest, in whole or in part, is not disputed by
others, goes to court and asks that conflicting claimants to the property or obligation
be required to litigate among themselves in order to determine finally who is entitled
to the same(Alvarez v. Commonwealth, G.R. No. L-45315, February 25, 1938).
When to File
Q: When should an action for interpleader be filed?
ANS: An action of interpleader should be filed within a reasonable time after a
dispute has arisen without waiting to be sued by either of the contending claimants.
Otherwise, it may be barred by laches or undue delay. This is because after
judgment is obtained against the plaintiff by one claimant, he is already liable to the
latter(WackWack Golf and Country Club, Inc. v. Won, G.R. No. L-23851, March 26,
1976).
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ANS: The purpose of the action for declaratory relief is to secure an authoritative
statement of the rights and obligations of the parties under said law or contract, for
their guidance in the enforcement thereof or compliance therewith, not to settle
issues arising from an alleged breach thereof(DyPoco v. Commission of
Immigration, G.R. No. L-22313, March 31, 1966).
Q: What is meant by the requirement that the petition for declaratory relief
must be filed before there is a breach or violation?
ANS: A petition for declaratory relief will not prosper if filed after the contract or
statute on which it is based has already been breached (De Borja v. Villadolid, G.R.
No. L-1897, November 28, 1949). The law does not require that there is an actual
pending case. It is sufficient that there is a breach of the law, an actionable violation
to bar a complaint for declaratory judgment (Samson v. Andal, G.R. No. L-5932,
February 25, 1954).
NOTE:The court does not have the discretion to refuse to exercise the power to
declare rights and to construe instruments in actions for reformation of instrument,
consolidation or ownership and quieting of title instituted under Rule 63.
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the contract (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30,
1977).
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Q: What is prohibition?
ANS: Prohibition is a writ by which a superior court prevents inferior courts, a
corporation, board or persons from usurping or exercising, a jurisdiction or a power
with which they have not been vested by law (Mataguina Integrated Wood
Products, Inc. v. Court of Appeals, G.R. No. 98310,October 24, 1996).
Q: Define mandamus.
ANS:Mandamus is a writ issued in the name of the state, to an inferior tribunal, a
corporation, board or person, commanding the performance of an act which the law
enjoins as a duty resulting from an office, trust or station(Herrera, p.326, citing
Moran).
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Connection
Continuation of the original Original and independent
With Original
case. action.
Case
RTC, CA, SC or
Where Filed SC
Sandiganbayan
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Requisites
Q: State the requisites of certiorari.
ANS: The following are the requisites of a petition for certiorari:
a. The writ is directed against a tribunal, board or officer exercising judicial or
quasi-judicial functions;
b. Such tribunal, board or officer has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to excess or lack of
jurisdiction;
c. There must be no appeal or any plain, speedy and adequate remedy in the
ordinary course of law (Abedes v. Court of Appeals, G.R. No. 174373,
October 15, 2007);
d. That the petition is verified and must allege facts with certainty;
e. The petition must be accompanied with certified true copies of the
judgment or order sought to be annulled and copies of all pleadings and
documents relevant and pertinent thereto (Sec. 1, Rule 65).
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An aggrieved party may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered:
a. Commanding the respondent to desist from further proceedings in the action or
matter specified therein, or
b. Otherwise granting such incidental reliefs as law and justice may require(Sec. 2,
Rule 65).
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ANS: No. Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions(Holy Spirit Homeowners Association, Inc. v.
Defensor, G.R. No. 163980, August 3, 2006).
The person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be
specified by the court:
a. To do the act required to be done to protect the rights of the petitioner, and
b. To pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent(Sec. 3, Rule 65).
Q: In 1996, Congress passed Republic Act No. 8189, otherwise known as the
Voter's Registration Act of 1996, providing for computerization of elections.
Pursuant thereto, the COMELEC approved the Voter's Registration and
Identification System Project. It issued invitations to pre-qualify and bid for
the project. After the public bidding, Fotokina was declared the winning
bidder with a bid of PhP6 billion and was issued a Notice of Award. But
COMELEC Chairman Gener Go objected to the award on the ground that
under the Appropriations Act, the budget for the COMELEC's modernization
is only PhP1 billion. He announced to the public that the VRIS project has
been set aside. Two Commissioners sided with Chairman Go, but the majority
voted to uphold the contract. Meanwhile, Fotokina filed with the RTC a
petition for mandamus compel the COMELEC to implement the contract. The
Office of the Solicitor General, representing Chairman Go, opposed the
petition on the ground that mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority Commissioners filed a
manifestation that Chairman Go was not authorized by the COMELEC En
Banc to oppose the petition. Is a petition for mandamus an appropriate
remedy to enforce contractual obligations? (2006 Bar)
ANS: No. It is a settled rule that mandamus will lie only to compel the performance
of a ministerial duty but does not lie to require anyone to fulfill contractual
obligations. Only such duties as are clearly and peremptorily enjoined by law or by
reason of official station are to be enforced by the writ(G&S Transport Corp. v.
Court of Appeals, G.R. No. 120287, May 28, 2002; Answers to the Bar Examination
Questions by the UP Law Complex and Philippine Law Schools Association 2006).
Injunctive Relief
Q: Will the mere filing of a petition for certiorari, prohibition or mandamus
interrupt the principal case?
ANS: No. 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 public respondent from further proceeding in the case (Sec. 7, Rule 65).
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Q: After a petition for certiorari, prohibition or mandamus has been filed, and
in the absence of a TRO or a preliminary injunction, what shall the public
respondent do with the principal case?
ANS: The public respondent shall proceed with the principal action within 10 days
from the filing of a petition for certiorari, absent a TRO or a preliminary injunction, or
upon its expiration. Failure to proceed with the principal case may be a ground for
an administrative charge (A.M. No. 07-7-12-SC).
Q: Which court may grant injunctive relief in actions for certiorari, prohibition
and mandamus?
ANS:The court in which the petition is filed may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties pending such
proceedings(Sec. 7, Rule 65).
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ANS:If the petition for mandamusis granted, the court shall order the respondent to
immediately or at some other time specified by the court, to do the act required to
be done to protect the rights of the petitioner and to pay the damages sustained by
the latter, by reason of the wrongful acts of the respondent(Sec. 3, Rule 65).
NOTE: In such event, the court may award in favor of the private respondent
treble costs solidarily against the petitioner and counsel, in addition to
subjecting the counsel to administrative sanctions(Sec. 8, Rule 65).
H.QUO WARRANTO
Q: What is a quo warranto?
ANS: It is a prerogative proceeding or writ issued by the court to determine the right
to the use or exercise of a franchise or office and to oust the holder from its
enjoyment, if his claim is not well- founded, or if he has forfeited his right to enjoy
the privilege (Fortuno v. Palma, G.R. No. 70203, December 18, 1987).
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DIFFERENCES
Quo Warrantounder Quo Warrantounder the
Rule 66 Omnibus Election Code
A prerogative writ by which the
government can call upon any Purpose is to contest the right of
person to show by what title he an elected public officer to hold
holds a public office or exercises public office.
a public franchise.
The grounds are ineligibility or
The grounds are usurpation,
disqualification to hold public
forfeiture or illegal association.
office.
Action must be commenced within
Petition must be filed within 10
1 year from the cause of ouster or
days from the proclamation of
from the time the right of petitioner
the candidate.
to hold office arose.
Petitioner must be the
government or the person entitled
May be filed by any voter even if
to the office and who would
he is not entitled to the office.
assume the same if his action
succeeds.
Person adjudged entitled to the
office may bring a separate action Actual or compensatory
against the respondent to recover damages are recoverable.
damages.
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I.EXPROPRIATION
Q: What is expropriation?
ANS: Expropriationis the procedure for enforcing the right of eminent
domain(Napocor v. Court of Appeals, G.R. No. 106804, August 12, 2004, citing
Herrera).
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When Plaintiff can Immediately Enter into Possession of the Real Property, in
Relation to R.A. No. 8974
Q: When may the plaintiff take immediate possession of the property sought
to be expropriated?
ANS:The plaintiff may enter upon the property immediately upon the filing of the
complaint with due notice to the defendant and after making a deposit with the
proper government authority. The deposit shall be in an amount equivalent to the
assessed value of the real property for the purposes of taxation(Sec. 2, Rule
67).Upon compliance with the requirements the issuance of the writ of possession
becomes ministerial (Biglang-Awa v. Bacalla, G.R. Nos. 139927 and 139936,
November 22, 2000).
Q: Is Rule 67 the solitary guideline through which the State may expropriate
private property?
ANS: No. The following rules also apply:
a. Sec. 19 of the Local Government Code governs as to the exercise by local
government units of the power of eminent domain through an enabling
ordinance. Under Sec. 19, the amount of the deposit shall be at least 15%
of the fair market value of the property, based on the current tax
declaration of the property to be expropriated;
b. R.A. No. 8974 covers expropriation proceedings intended for national
government infrastructure projects. But if expropriation is engaged in by the
national government for purposes other than national infrastructure
projects, the assessed value standard and the deposit mode prescribed in
Rule 67 continues to apply (Republic of the Philippines v. Gingoyon, G.R.
No. 166429, December 19, 2005).
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NOTE: As a rule, a defendant waives all defenses and objections not alleged
in his answer. However, the court may permit amendments to the answer to
be made not later than 10 days from its filing.
Order of Expropriation
Q: What is an order of expropriation?
ANS:An order of expropriation is one issued by the court when (a) the objections or
defenses of the defendant are overruled, or (b) no party appears to defend the
case. The order shall declare that the plaintiff has a lawful right to take the property
for the public use or purpose stated in the complaint, upon payment of just
compensation to be determined as of the date of taking of the property or the filing
of the complaint, whichever came first (Sec. 4, Rule 67).
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expropriating entity(J.M. Tuason& Co. Inc. v. The Land Tenure Administration, G.R.
No. L-21064, February 18, 1970).
JC = FMV + CD CB
If CB is MORE than CD then,
JC = FMV
Q: What is the duty of the commissioners after they have passed upon a
property?
ANS: The commissioners shall file make a report of their proceedings within 60
days from notice of their appointment, subject to extension by the court. The report
shall not be effectual until the court has accepted the report and rendered judgment
in accordance with their recommendations. The parties may file objections to such
report within 10 days from notice thereof(Sec. 7, Rule 67).
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ANS: The court, upon motion, shall order the sale in the manner and under the
provisions of Rule 39 and other regulations governing the sales of real estate under
execution(Sec. 3, Rule 68).
Deficiency Judgment
Q: What is the effect of deficiency after the foreclosure sale?
ANS: Where the proceeds of the foreclosure sale after its application still result in a
balance due to the plaintiff, the latter may ask the court upon motion, to render a
judgment against the defendant for such balance. The court shall render such
judgment upon which execution shall issue immediately if the balance is all due at
the time the judgment is rendered. Otherwise, the plaintiff shall be entitled to the
execution at such time as the remaining balance becomes due(Sec. 6, Rule 68).
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K.PARTITION
Q: What is partition?
ANS:Partition, in general, is the separation, division and assignment of a thing held
in common among those to whom it may belong (Art. 1079, NCC).
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Q: What shall the parties do after the court shall have ordered a partition?
ANS:The parties may choose to partition the property among themselves by proper
instruments of conveyance. The court shall confirm the partition so agreed upon
and it shall be recorded in the registry of deeds in the place in which the property is
located(Sec. 2, Rule 69).
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ANS: The commissioners shall make a full and accurate report of the proceedings
as to the partition, or assignment of the real estate to one of the parties or the sale
of the same (Sec. 6, Rule 69).
Prescription of Action
Q: Does the right to demand partition prescribe?
ANS: As a general rule, no. The right of action to demand partition does not
prescribe, except where one of the interested parties openly and adversely
occupies the property without recognizing the co-ownership in which case
acquisitive prescription may set in(Cordova v. Cordova, G.R. No. L-9936, January
14, 1958).
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Who may Institute the Action and when; Against whom the Action may be
Maintained
Q: Who may file an action for forcible entry or unlawful detainer?
ANS: They are the following:
a. In forcible entry, the person entitled to the possession of the land or
building who is deprived thereto by way of force, intimidation, threats,
strategy or stealth;
b. In unlawful detainer, the lessor, vendor, vendee or other person against
whom the possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any
contract, express or implied(Sec. 1, Rule 70).
Q: Within what period must the action for forcible entry or unlawful detainer
be brought?
ANS: The rules are the following:
a. In the case of forcible entry, the action must be brought within one year
from the date of entry or taking of possession by use of force, intimidation,
threat or strategy. In case possession was taken through stealth, the one
year period may be counted from the demand to vacate upon learning of
the entry by stealth;
b. In case of unlawful detainerthe action must be brought with one yearfrom
the last demand in case of the non-payment of rent or from the non-
compliance with the conditions of the lease(Sec. 1, Rule 70).
Q: Against whom may the action for forcible entry or unlawful detainer be
maintained?
ANS:The action of forcible entry and detainer may be maintained against the
person or persons unlawfully withholding or depriving of possession, or any person
or persons claiming under them (Sec. 1, Rule 70).
Pleadings Allowed
Q: What are the pleadings allowed in an action for ejectment?
ANS:Since ejectment is governed by the Rules on Summary Procedure, the only
pleadings allowed to be filed are the complaints, compulsory counterclaims and
cross-claims' pleaded in the answer, and the answers thereto(Sec. 3 [a], Revised
Rules on Summary Procedure).
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for the dismissal of a civil action apparent therein. If no ground for dismissal is
found, the court shall issue the summons(Sec. 5, Rule 70).
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Q: May the court trying the case for ejectment resolved the issue of
ownership?
ANS: Yes. The court may resolve the issue of ownership only when the issue of
possession cannot be resolved without dealing with the issue of ownership. The
determination is merely provisional and for it to be settled with finality, a separate
action shall be necessary(Sec. 16, Rule 70).
Summary Procedure
Q:What rules govern forcible entry and unlawful detainer cases?
ANS:The Rules on Summary Procedure shall apply to all cases of forcible entry
and unlawful detainer, irrespective of the amount of damages or unpaid rentals
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sought to be recovered. Where attorneys fees are awarded, it shall not exceed
PhP20,000(Sec. 1, Revised Rules on Summary Procedure).
M.CONTEMPT
Q: What is contempt?
ANS: Contempt of court is a defiance of the authority, justice or dignity of the court;
such conduct as tends to bring the authority and administration of the law into
disrespect or to interfere with or prejudice parties, litigants or their witnesses during
litigation (12 Am. Jur. 389). It is a disobedience to the Court by acting in opposition
to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience of the courts orders, but such conduct as tends to bring the authority
of the court and the administration of law into disrepute or in some manner to
impede the due administration of justice (17 C.J.S. 4).
Kinds of Contempt
Q: What are the kinds of contempt?
ANS: They are:
a. According to nature:
i. Criminal; and
ii. Civil;
b. According to the manner of commission:
i. Direct; and
ii. Indirect.
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the contempt is civil (Republic of the Philippines v. Baes, G.R. No. 139464,
September 9, 2005).
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b. If the act was committed against a lower court, the penalty is a fine not exceeding
PhP5,000.00or imprisonment not exceeding 1 month, orboth;
c. If the contempt consists in the violation of a writ of injunction, TRO or a status
quo order, the offender 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(Sec. 7, Rule 71).
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commissioners of the SEC must exercise the power of contempt judiciously and
sparingly with utmost self-restraint(Ibid.);
b. National Labor Relations Commission (Robosa, et. al. v. NLRC, G.R. No.
176085, February 8, 2012). Article 218 of the Labor Code provides for the rules
on direct contempt. The Labor Code, however, requires the labor arbiter or the
Commission to deal with indirect contempt in the manner prescribed under Rule
71 of the Rules of Court(Ibid.).
SPECIAL PROCEEDINGS
I. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND
PROCESS
Q: What are the modes of settlement of the estate of a deceased person?
ANS: They are the following:
a. Extrajudicial Settlement of Estate (Sec. 1, Rule 74);
i. Extrajudicial partition
ii. Self-adjudication
b. Summary Settlement of Estate of Small Value (Sec. 2, Rule 74);
c. Judicial Settlement of Estate;
i. Partition (Rule 69)
ii. Probate of Will (Rule 75-79)
d. Petition for Letters of Administration in case of Intestacy (Rule 79).
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Said court has limited and special jurisdiction and cannot hear and dispose of
collateral matters and issues which may be properly threshed out only in an
ordinary civil action(Vda. De Manalo v. Court of Appeals, G.R. No. 129242,
January 16, 2001).
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deprived of his lawful participation in the estate, such heir or such other
person may compel the settlement of the estate in the courts for the
purpose of satisfying such lawful participation;
b. Within the same time of 2 years, if it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or
other person has been unduly deprived of his lawful participation payable
in money, the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts or lawful
participation and order how much and in what manner each distributee
shall contribute in the payment thereof (Sec. 4, Rule 74);
c. If on the date of the expiration of the period of same 2-year period, the
person authorized to file a claim is a minor or mentally incapacitated, or is
in prison or outside the Philippines, he may present his claim within 1 year
after such disability is removed (Sec. 5, Rule 74).
In other words, it is only a bar against the parties who had taken part in the
extrajudicial proceedings, but not against third persons not parties thereto
(Herrera, p. 39).
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Q: After Lulu's death, her heirs brought her last will to a lawyer to obtain their
respective shares in the estate. The lawyer prepared a deed of partition
distributing Lulu's estate in accordance with the terms of her will. Is the act of
the lawyer correct? Why? (2005 Bar)
ANS:The act of the lawyer is not correct. The probate of a will is mandatory. Sec. 1,
Rule 75 of the Rules of Court provides that no will shall pass either real or personal
estate unless it is proved and allowed in theproper court.
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C.REPROBATE
Q: What are the effects of reprobate of a will under Rule 77 of the Rules of
Court?
ANS: The following are the effects of a reprobate of a will:
a. The will shall be treated as if originally proved and allowed in Philippine
courts(Sec. 3);
b. Letters testamentary or administration with a will annexed shall extend to
all estates of the testator in the Philippines;
c. After payment of just debts and expenses of administration, the residue of
the estate shall be disposed of as provided by law in cases of estates in
the Philippines belonging to persons who are inhabitants of another state
or country(Sec. 4).
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D.EFFECTS OF PROBATE
Q: State the effects of the allowance of a will.
ANS: Subject to the right of appeal, the allowance of the will shall be conclusive as
to its due execution(Sec. 1, Rule 75).
Q: May the probate court pass upon the intrinsic validity of a will?
ANS: As a general rule, no. In a special proceeding for the probate of a will, the
issue by and large is restricted to the extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law (Pastor, Jr. v. Court of Appeals, G.R. No. L-56340,
June 24, 1983). However, in exceptional caseswhere the probate of a will might
become an idle ceremony if on its face it appears to be intrinsically void, and where
practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue(Nuguid v. Nuguid, G.R.
No. L-23445, June 23, 1966).
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B.ORDER OF PREFERENCE
Q: Is the order of preference is the appointment of administrator of an estate
absolute?
ANS: No. It is well settled that a probate court cannot arbitrarily and without
sufficient reason disregard the preferential rights of the surviving spouse to the
administration of the estate of the deceased spouse. But, if the person enjoying
such preferential rights is unsuitable, the court may appoint another person. The
determination of a person's suitability for the office of administrator rests, to a great
extent, in the sound judgment of the court exercising the power of appointment and
such judgment will not be interfered with on appeal unless it appears affirmatively
that the court below was in error (Sioca v. Garcia, G.R. No. L-20080, March 27,
1923).
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h. Enter into any transaction involving the estate without any prior approval of
the court, when the estate of the deceased is already the subject of a
testate or intestate proceeding (Estate of Olave v. Reyes, G.R. No. L-
29407 July 29, 1983).
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ANS: Claims must be filed within the time fixed in the notice to the creditors. The
period shall not be more than 12 monthsnor less than 6 monthsafter the date of the
first publication(Sec. 2, Rule 86).
Q: State the effect if a claimant does not file his claim against the estate of the
decedent within the period prescribed by law.
ANS: Failure to do so shall bar the claim forever(Sec. 5, Rule 86).
B.STATUTE OF NON-CLAIMS
Q: What is the statute of non-claims?
ANS: The statute of non-claims is the term used to refer to the provisions of Rule
86 in fixing the period for the filing of claims against the estate of the decedent
(Santos v. Manarang, G.R. No. L-8235, March 19, 1914).
Q: Between the statute of non-claims and the statute of limitation, which will
prevail?
ANS: Insofar as claims against the estates of deceased persons are concerned, the
statute of non-claims supersedes the statute of limitations. Hence, if a debtor dies,
his creditors must present their claims, whether the same be due, not due or
contingent, in the settlement proceeding of the estate of the deceased debtor within
the time provided in the statute of non-claims, or the same shall be barred forever
(Albano, p. 856 citing In Re: Estate of De Dios, G.R. No. L-7940, March 27, 1913).
D.PAYMENT OF DEBTS
Q: Give an outline on how the executor or administrator shall pay the debts of
the estate of the decedent.
ANS: The following rules shall be followed:
a. Where the estate is sufficient to pay all the debts of the decedent, the
executor or administrator shall pay them within the time limited for that
purpose (Sec. 1, Rule 88);
b. Where the will provides for the property which shall be used in the payment
of the debts, such debts will be paid according to the provisions of the will
(Sec. 2, Rule 88);
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Q: Outline the steps for distribution and partition of the estate of the
decedent.
ANS: The steps for distribution and partition are the following:
a. After 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 (Sec. 1, Rule 90);
b. 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 (Ibid.);
c. Questions as to advancement made, or alleged to have been made, by the
deceased to any heir may be heard and determined by the court having
jurisdiction of the estate proceedings (Sec. 2, Rule 90);
d. Expenses of partition may be paid by the executor or administrator out of
the assets in his hands of sufficient; otherwise, they shall be paid by the
parties in proportion to their respective shares or interest (Sec. 3, Rule 90);
e. Certified copies of final orders and judgments of the court relating to the
real estate or the partition thereof shall be recorded in the registry of deeds
of the province where the property is situated (Sec. 4, Rule 90);
f. Controversies as to who are the lawful heirs of the deceased or as to the
distributive shares of each shall be heard and decided as in ordinary cases
(Sec. 1, Rule 90).
B.PROJECT OF PARTITION
Q: What is a project of partition?
ANS: It is a document prepared by the executor or administrator setting forth the
manner in which the estate of the deceased is to be distributed among the heirs. If
the estate is a testate estate, the project of partition must conform to the terms of
the will; if intestate, the project of partition must be in accordance with the
provisions of the Civil Code (Albano, p. 875, citing Camia de Reyes v. Reyes de
Ilano, G.R. No. L-42092, October 28, 1936).
The heirs may, by agreement, submit a project of partition to serve as a basis for
the order of distribution. The heirs who disagree may submit a counter-project of
partition. In approving a project of partition, it is not necessary for the court to state
the specific property adjudicated to an heir, but may award the same to the heirs
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NOTE: The following are the only instances when the probate court may issue a
writ of execution:
a. To enforce the contributive shareof the devisees, legatees or heirs when they
have entered into prior possession of the estate before the debts and expenses
have been settled and paid (Sec. 6, Rule 88);
b. To enforce the payment of the expenses of partition against the party not paying
for the sum assessed(Sec. 3, Rule 90);
c. To satisfy the costs when a person is cited for examinationin the probate
proceedings(Sec. 13, Rule 142).
IX. TRUSTEES
Q: In what instances may a trustee be appointed?
ANS:If a testator has omitted in his will to appoint a trustee in the Philippines, and if
such appointment is necessary to carry into effect the provisions of the will, the
proper Regional Trial Court may, after notice to all persons interested, appoint a
trustee who shall have the same rights, powers, and duties, and in whom the estate
shall vest, as if he had been appointed by the testator. No person succeeding to a
trust as executor or administrator of a former trustee shall be required to accept
such trust.
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initial and final submission of accounts, they shall be filed only at such
times as may be required by the court;
b. A trustee necessary to carry into effect the provisions of a will shall be
appointed by the RTC; the court which has jurisdiction over an executor or
administrator may be the MTC or the RTC;
c. A trustee is appointed to carry into effect the provisions of a will or written
instrument; an executor/administrator is appointed by the court to settle the
estate of a decedent;
d. A trustee may be exempted from filing a bond if provided in the will or if the
beneficiaries requested exemption; an executor/administrator is not
exempted from filing a bond even if such exemption is provided in the will;
e. Trusteeship is terminated upon turning over the property to the beneficiary
after expiration of the trust; while services of an executor/administrator are
terminated upon payment of debts of the estate and distribution of property
to the heirs; and
f. A trustee has no obligation to pay the debts of a beneficiary or trustor;
while an executor/administrator must pay the debts of the estate.
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X. ESCHEAT
Q: Defined escheat.
ANS: Escheat is a proceeding where the real and personal property of a deceased
person in the Philippines, who dies without leaving any will and legal heirs,
becomes the property of the State upon his death(Municipal Council of San Pedro,
Laguna v. Colegio de San Jose, Inc., et al., G.R. No. L-45460, February 25, 1938).
A.WHEN TO FILE
Q: When may a petition for escheat be filed?
ANS: If a person dies intestate, seized of real property in the Philippines, leaving no
heir or person by law entitled to the same, an escheat proceeding may be filed
(Sec. 1, Rule 91).
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XI. GUARDIANSHIP
A.GENERAL POWERS AND DUTIES OF GUARDIANS
Q: State the powers and duties of a guardian.
ANS: The powers and duties of a guardian are the following:
a. To have the care and custody of the person of the ward, and the
management of his estate, or the management of the estate only, as the
case may be (Sec. 1, Rule 96);
b. Pay the debts of the ward (Sec. 2, Rule 96);
c. Settle accounts, collect debts and appear in actions for ward (Sec. 3, Rule
96);
d. Manage the estate of the ward frugally, and apply the proceeds to
maintenance of the ward (Sec. 4, Rule 96);
e. Render a verified inventory within 3 months after his appointment and
annually thereafter, and upon application of interested persons (Sec. 7,
Rule 96);
f. Render to the court for its approval an accounting of the property upon the
expiration of 1 year from his appointment, and as often thereafter as may
be required (Sec. 8, Rule 96).
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and disposition of the same, at the time designated by these rules and
such other times as the court directs;
d. At the expiration of his trust, to settle his accounts with the court and
deliver and pay over all the estate, effects, and moneys remaining in his
hands, or due from him on such settlement, to the person lawfully entitled
thereto;
e. To perform all orders of the court by him to be performed(Sec. 1, Rule 94).
Q: Who are the persons who may be appointed as guardian of the minor?
ANS:In default of the parents or a court appointed guardian, the court may appoint
one, observing as far as practicable the following order of preference:
a. The surviving grandparent and in case several grandparents survive the court
shall select any of them taking into account all relevant considerations;
b. The oldest brother or sisterof the minor, who is over 21 years of age, unless unfit
or disqualified;
c. The actual custodianof the minor, who is over 21 years of age, unless unfit or
disqualified; and
d. Any other person,who in the sound discretion of the court would serve the best
interests of the minor(Sec. 6, AM-03-02-05-SC).
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XII. ADOPTION
A.DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Q: State the distinctions between domestic adoption and inter-country
adoption.
ANS:
DIFFERENCES
Domestic Adoption Inter-Country Adoption
Under the jurisdiction of the Under the jurisdiction of the Inter-
Family Court where adopter Country Adoption Board (ICAB),
resides. but a petition may also be filed
with the Family Court where
adoptee resides which will turn it
over to ICAB.
Trial custody is in the Trial custody for 6 months is in
Philippinesfor 6 months but court the country of adopter and is
may reduce period or exempt mandatory before a decree of
parties from trial custody. adoption is issued.
Petition for adoption may include Petition for adoption only.
prayer for change of name, or
declaration that child is a
foundling, abandoned,
dependent or neglected child.
Adoptee: Legitimate or Adoptee: Only a child legally
illegitimate child of a spouse or available for domestic adoption
even a person who is of legal may be the subject of inter-
age may be adopted. country adoption.
Annexes: Income tax returns, Annexes: Income tax returns,
police clearance, character police clearance, character
reference, family picture, birth reference, family picture, birth
certificate of adopter are not certificate of adopter are required
required to be annexed in the to be annexed in the petition.
petition.
Petition must be published at No publication requirement.
least once a week for 3
successive weeks in a
newspaper of general circulation
in the province or city where
court is situated.
Application is through a petition Application may be through an
in the Family Court. agency in the foreign country and
then it will submit the application
to the ICAB.
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Effects of Adoption
Q:State the effects of adoption.
ANS: Adoption shall have the following effects:
a. The adopter will exercise parental authority (Sec. 16, R.A. No. 8552);
b. All legal ties between biological parents and the adoptee shall be severed,
except when biological parent is spouse of adopter(Ibid);
c. Adoptee shall be considered legitimate child of adopter for all intents and
purposes(Sec. 17, R.A. No. 8552);
d. Adopters shall have reciprocal rights of succession without distinction from
legitimate filiations(Sec. 18, R.A. No. 8552).
C.INTER-COUNTRY ADOPTION
Q: What is inter-country adoption?
ANS: It refers to the socio-legal process of adopting a Filipino child by a foreigner
or a Filipino citizen permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of adoption is issued outside
the Philippines(Sec. 3 [a], R.A. No. 8043).
When Allowed
Q: When is inter-country adoption allowed:
ANS: It is allowed only when the Inter-Country Adoption Board has ensured that all
possibilities for adoption of the child under the Domestic Adoption Act have been
exhausted and that inter-country adoption is in the best interest of the child(Sec. 7,
R.A. No. 8043).
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Q: What shall the RTC do after finding the petition for adoption to be
sufficient in form and substance and a proper case for inter-country
adoption?
ANS: The RTC shall immediately transmit the petition to the Board for appropriate
action(Sec. 32, Rule on Adoption).
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time, for what cause, and by what authority such transfer was made(Sec. 10,
Rule 102).
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The person who The person who files The person who files
makes the return is the return is the the return is the
the officer by whom respondent. respondent.
the prisoner is
imprisoned or the
person in whose
custody the prisoner
is found.
A general denial of A general denial of
the allegations in the the allegations in the
petition shall not be petition shall not be
allowed. allowed.
If the respondent fails In case the
to file a return, the respondent fails to file
court, justice or judge a return, the court,
shall proceed to hear justice or judge shall
the petition ex parte. proceed to hear the
petition ex parte,
granting the petitioner
such relief as the
petition may warrant
unless the court in its
discretion requires
the petitioner to
submit evidence.
There are prohibited There are prohibited
pleadings and pleadings and
motions. motions.
Sec. 12 Sec. 14. The court,
1. Unless for good justice or judge may
cause shown, the grant interim reliefs, to
hearing is wit: temporary
adjourned, in protection order,
which event the inspection order,
court shall make production order and
an order for the witness protection
safe keeping of order.
the person
imprisoned or
restrained as the
nature of the case
requires;
2. The court or judge
must be satisfied
that the persons
illness is so grave
that he cannot be
produced without
any danger.
There is no
presumption that
official duty has been
regularly performed.
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Q: State the requisites for the grant of the writ of habeas corpus involving
custody of minors.
ANS: The requisites are the following:
a. The petitioner has the right of custody over the minor;
b. The rightful custody of the minor is being withheld from the petitioner by
the respondent;
c. That it is to the best interest of the minor concerned to be in the custody of
the petitioner and not that of the respondent (Sombong v. Court of
Appeals, G.R. No. 111876, January 31, 1996).
Q: Widow A and her two children, both girls, aged 8 and 12 years old, reside in
AngelesCity,Pampanga. A leaves her two daughters in their house at night
because she works in a brothelas a prostitute. Realizing the danger to the
morals of these two girls, B, the father of thedeceased husband of A, files a
petition for habeas corpus against A for the custody of the girlsin the Family
Court in Angeles City. In said petition, B alleges that he is entitled to the
custodyof the two girls because their mother is living a disgraceful life. The
court issues the writ ofhabeas corpus. When A learns of the petition and the
writ, she brings her two children to CebuCity. At the expense of B the sheriff of
the said Family Court goes to CebuCity and serves thewrit on A. A files her
comment on the petition raising the following defenses: a) Theenforcement of
the writ of habeas corpus inCebu City is illegal; and b) B has no personality to
institute the petition. Resolve thepetition in the light of the above defenses of A.
(2003 Bar)
ANS:
a. The writ of habeas corpus issued by the Family Court in Angeles City may not
be legally enforced in Cebu City, because the writ is enforceable only within
the judicial region to which the Family Court belongs, unlike the writ granted
by the SC or CA which isenforceable anywhere in the Philippines (Sec. 20).
b. B, the father of the deceased husband of A, has the personality to institute the
petition for habeas corpus of the two minor girls, because the grandparent has
the right of custody asagainst the mother A who is a prostitute (Secs. 2 and
13; Answers to the Bar Examination Questions by the UP Law Complex and
Philippine Law Schools Association 2006).
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NOTE: The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. In the same way, the filing of the petition
by an authorized party shall suspend the right of all others in the order established
above(Sec. 2).
E.CONTENTS OF RETURN
Q: State the contents of the return of a writ of habeas corpus.
ANS: Within 5 working days after service of the writ, the respondent shall file a
verified written return together with supporting affidavits which shall, among other
things, contain the following:
a. Lawful defenses to show that the respondent did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any
act or omission;
b. The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for
the threat, act or omission;
c. All relevant information in the possession of the respondent pertaining to the
threat, act or omission against the aggrieved party; and
d. If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken:
i. Verify the identity of the aggrieved party;
ii. To recover and preserve evidence related to the death or disappearance which
may aid in the prosecution of the person/s responsible;
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iii. To identify witnesses and obtain statements from them concerning the death or
disappearance;
iv. To determine the cause, manner, location and time of death or disappearance
as well as any pattern or practice that may have brought about the death or
disappearance;
v. To identify and apprehend the person/s involved in the death or
disappearance;
vi. To bring the suspected offenders before the competent court;
e. Other matters relevant to the investigation, its resolution and prosecution of the
case(Sec. 9).
K.CONSOLIDATION
Q: May a petition for writ of amparo be consolidated with a criminal action?
ANS: Yes. 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,
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the procedure under this Rule shall continue to apply to the disposition of the reliefs
in the petition(Sec. 23).
B.AVAILABILITY OF WRIT
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G.CONSOLIDATION
Q: When may a petition for habeas data be consolidated with a criminal
action?
ANS: When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the criminal action.When a criminal action
and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action.When there is
consolidation, the procedure under the Rule on the Writ of Habeas Data shall
govern the disposition of the reliefs under the writ(Sec. 21).
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3. Change will
avoid confusion.
XVII. ABSENTEES
A.PURPOSE OF THE RULE
Q: What is the purpose of the rule on absentees?
ANS: The purpose of the rule is to appoint an administrator over the properties of
the absentee. Hence, if absentee left no properties, such petition is
unnecessary(Reyes v. Alejandro, G.R. No. L-32026, January 16, 1986).
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a. Births;
b. Marriages;
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;
o. Change of name(Sec. 2).
NOTE: Under R.A. No. 9048, clerical or typographical errors in entries of the
civil register are now to be corrected and changed without need of a judicial
order and by the city or municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of Rule 108 the correction or
changing of such errors in entries of the civil register. Hence, what is left for
the scope of operation of Rule 108 are substantial changes and corrections in
entries of the civil register.
NOTE: R.A. No. 9048 is Congress response to the confusion wrought by the
failure to delineate as to what exactly is that so-called summary procedure for
changes or corrections of a harmless or innocuous nature as distinguished
from that appropriate adversary proceeding for changes or corrections of a
substantial kind. For we must admit that though we have constantly referred
to an appropriate adversary proceeding, we have failed to categorically state
just what that procedure is. R.A. No. 9048 now embodies that summary
procedure while Rule 108 is that appropriate adversary proceeding. Be that
as it may, the case at bar cannot be decided on the basis of Republic Act No.
9048 which has prospective application(Lee v. Court of Appeals, G.R. No.
118387, October 11, 2001).
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c. Issuance by the court of an order fixing the time and place of hearing;
d. Giving reasonable notice to the parties named in the petition; and
e. Publication of the orderonce a week for three consecutive weeks in a newspaper
of general circulation(Rule 108; Answers to the Bar Examination Questions by
the UP Law Complex and Philippine Law Schools Association 2006).
B.WHEN TO APPEAL
Q: What is the period to appeal from an order or judgment in special
proceedings?
ANS:A party may appeal from an order or judgment within 30 daysfrom notice
thereof(Sec. 19(b), Interim Rules and Guidelines; Gonzales Orense v. Court of
Appeals,G.R. No. 80526, July 18, 1988).
C.MODE OF APPEAL
Q: What is the mode of appeal in special proceedings?
ANS:Appeals in special proceedings shall be by record on appeal (Ibid.).
CRIMINAL PROCEDURE
I. GENERAL MATTERS
Q: What is criminal procedure?
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ANS: Criminal procedure is the method prescribed by law for the apprehension and
prosecution of persons accused of any criminal offense and for their punishment, in
case of conviction (Herrera, Vol. IV, p. 1, 2007 ed., p.1).
Q: State the distinctions between jurisdiction over the subject matter and
jurisdiction over the person of the accused in criminal cases.
ANS: The distinctions are the following:
a. Jurisdiction over the subject matter refers to the authority of the court to
hear and determine a particular case (Reyes v. Diaz, G.R. No. L-48754,
November 26, 1941); jurisdiction over the person charged with the offense
must have been brought in to its forum for trial, forcibly by warrant of arrest
or upon his voluntary submission to the court(Arula v. Espino, G.R. No. L-
28949, June 23, 1969);
b. Jurisdiction over the subject matter is derived from law. It can never be
acquired solely by consent of the accused; jurisdiction over the person of
the accused may be acquired by the consent of the accused or by waiver
of objections (People of the Philippines v. Marquez, G.R. No. L-23654,
March 28, 1969);
c. Objection that the court has no jurisdiction over the subject matter may be
made at any stage of the proceeding, and the right to make such objection
is never waived (Suy Sui v. People of the Philippines, G.R. No. L-5278,
February 17, 1953); in jurisdiction over the person, if the accused fails to
make his objection in time, he will be deemed to have waived it (People of
the Philippines v. Marquez, supra).
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ANS: The following requisites must be present before a court can validly exercise
its power to hear and try a case:
a. It must have jurisdiction over the subject matter;
b. It must have jurisdiction over the territory where the offense was committed;
c. It must have jurisdiction over the person of the accused (Herrera, p. 4).
CRIMINAL
MUNICIPAL TRIAL COURTS
CASES
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CRIMINAL
REGIONAL TRIAL COURT
CASES
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CRIMINAL
SANDIGANBAYAN
CASES
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CRIMINAL
COURT OF APPEALS
CASES
EXCLUSIVE a. Crimes of Terrorism under Human Security Act of
ORIGINAL 2007.
With the SC:
Petitions for certiorari, prohibition and mandamus
against the RTCs.
CONCURRENT
With the SC & RTC:
Petitions for certiorari, prohibition and mandamus
against the MTCs.
By Notice of Appeal:
a. From the RTC in the exercise of its original
jurisdiction, except those appealable to the
theSandiganbayan, Court of Tax Appeals and
APPELLATE
Supreme Court;
b. From the RTC where penalty imposed is reclusion
perpetua or life imprisonment or where a lesser
penalty is imposed but for offenses committed on the
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By Automatic Review
(i.e. No Notice of Appeal is Necessary):
From the RTC, in cases where the death penalty is
imposed.
CRIMINAL
SUPREME COURT
CASES
EXCLUSIVE Petition for certiorari, prohibition and mandamus against
ORIGINAL Court of Appeals and Sandiganbayan.
With the CA:
Petitions for certiorari, prohibition and mandamus
against the RTCs.
CONCURRENT
With the CA & RTC:
Petitions for certiorari, prohibition and mandamus
against the MTCs.
By Petition for Review on Certiorari
a. From the Court of Appeals;
b. From the Sandiganbayan;
c. From the RTC where only an error or question of law
is involved.
APPELLATE
NOTE:Where the penalty imposed is reclusion
perpetuaor life imprisonment, appeal should be made
to the CA, not the SC (People of the Philippines v.
Mateo, G.R. Nos. 147678-87, July 7, 2004).
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26, 2005).
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Manilaand other chartered cities, the complaint shall be filed with the office
of the prosecutor, unless otherwise provided in their charters(Sec. 1, Rule
110).
NOTE: The offenses falling under the first group refer to those punishable by
a penalty of at least 4 years, 2 months and 1 day of imprisonment, while
those falling under the second group are offenses punishable by lesser
penalty. Proper officers include city and provincial prosecutors (Pineda, The
Revised Rules on Criminal Procedure, 2003 ed., p. 2).
Q: What is a complaint?
ANS: A complaint is a sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer, or other public officer charged
with the enforcement of the law violated (Sec. 3, Rule 110).
Q: What is an Information?
ANS: An Information is an accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court (Sec. 4, Rule 110).
Q: In case of variance between the complaint filed by the offended party and
the Information in crimes against chastity, which shall prevail?
ANS: The complaint (People of the Philippines v. Mendez, G.R. No. 132546, July 5,
2000).
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Q: A filed with the Office of the Prosecutor a Complaint for estafa against B.
After the preliminary investigation, the Prosecutor dismissed the Complaint
for lack of merit. May the Prosecutor be compelled by mandamus to file an
Information? (1999 Bar)
ANS: No. It is a matter of discretion which cannot be compelled (People of the
Philippines v. Pineda, G.R. No. L-26222, July 21, 1967). The remedy is to appeal to
the Secretary of Justice (Sec. 4, Rule 122).
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to arrive at its own independent judgment as to the culpability of the accused (Sta.
Rosa Mining Co. v. Asst. Provincial Fiscal Zabala, G.R. No. L-44723, August 31,
1987).
F.DESIGNATION OF OFFENSE
Q: State the requirements as to the designation of the offense.
ANS: The Information or complaint must state:
a. The designation of the offense given by the statute, or if there is no
designation of the offense, reference shall be made to the section of the
statute punishing it;
b. The statement of the acts or omissions constituting the offense, in ordinary,
concise and particular words;
c. The specific qualifying and aggravating circumstances must be stated in
ordinary and concise language(Sec. 8, Rule 110).
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Q: What is the rationale behind the rule enjoining the charging of two or more
offenses in an Information?
ANS: The aim is to give the defendant the necessary knowledge of the charge to
enable, him to prepare his defense. The State should not heap upon the defendant
two or more charges which might confuse him in his defense(People of the
Philippines v. Ferrer, supra).
Q: What is the remedy of the accused if the Information charges two or more
offenses?
ANS: If there is duplicity in the offense charged, the remedy of the accused is to file
a motion to quash (Sec. 3 [f], Rule 117). If he fails to do so, the objection is deemed
waived (United States v. Paraiso, G.R. No. 5658, September 28, 1910), in which
case, the court may convict him of as many offenses as are charged and proved,
and impose on him the penalty for each offenses (Sec. 3, Rule 120).
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Q: X was charged with the crime of murder to which he pleaded not guilty.
After the presentation of the prosecutions evidence, the prosecutor moved to
amend the Information to include the aggravating circumstances of dwelling
and insult to the rank, age and sex of the victim. X opposed on the ground
that such an amendment is substantial and hence cannot be made after plea.
Is the contention correct?
ANS: No. The insertion of the aggravating circumstances of dwelling and insult or
disregard of the respect due to rank, age, or sex of the victim is a formal, not a
substantial, amendment. These amendments do not have the effect of charging
another offense different or distinct from the charge of murder as contained in the
original Information. They relate only to the range of the penalty that the court might
impose in the event of conviction. The amendment did not adversely affect any
substantial right of X (People of the Philippines v. Tubongbanua, G.R. No. 171271,
August 31, 2006).
If made after the plea,only formal amendmentsmay be made and it shall require
leave of courtand such amendment should not be prejudicialto the rights of the
accused.When a fact supervenes which changes the nature of the crime charged in
the Information, or upgrades it to a higher crime, a substantial amendment may be
made with a need for a re-arraignment of the accused under the amended
Information(Sec. 14, Rule 110).
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On the other hand, a continuing offense is onewhich, although all the elements
thereof for its consummation may have occurred in a single place, yet by reason of
the very nature of the offense committed, the violation of the law is deemed to be
continuing, such as kidnapping, illegal detention where the deprivation of liberty is
persistent and continuing from one place to another and libel where the libelous
matter is published or circulated from one province to another(Parulan v. Director of
Prisons, G.R. No. L-28519, February 17, 1968).
Q: When should the reservation of the right to institute the civil action
separately be made?
ANS: The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under
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Q: Give the instances where the reservation of the right to institute a civil
action separately is not allowed.
ANS: They are the following:
a. In criminal actions for violation of B.P. Blg. 22(Sec. 1 [b], Rule 111);
b. In criminal actions falling under the jurisdiction of the Sandiganbayan (Sec.
4, R.A. No. 8249);
c. In tax cases (Sec. 7 [b][1], RA No. 9282).
Q: Saturnino filed a criminal action against Alex for the latters bouncing
check. On the date of the hearing after the arraignment, Saturnino manifested
to the court that he is reserving his right to file a separate civil action. The
court allowed Saturnino to file a civil action separately and proceeded to hear
the criminal case. Alex filed a motion for reconsideration contending that the
civil action is deemed included in the criminal case. The court reconsidered
its order and ruled that Saturnino could not file a separate action. Is the
courts order granting the motion for reconsideration correct? Why? (2001
Bar)
ANS: Yes, the courts order is correct. The criminal action for violation of B.P. Blg.
22 shall be deemed to include thecorresponding civil action, and no reservation to
file such civil action separately shall beallowed(Sec. 1 [b], Rule 111).
Q: What is the reason for the rule that criminal actions are given priority over
civil actions?
ANS: Criminal actions take precedence over civil actions because the former
involves the life and liberty of the accused. The civil action is just an incident of the
criminal case (Pineda, p. 77).
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Q: Delia sued Victor for personal injuries which she allegedly sustained when
she was struck by a car driven by Victor. May the court receive in evidence,
over proper and timely objection by Delia, a certified true copy of a judgment
of acquittal in a criminal prosecution charging Victor with hit-and-run driving
in connection with Delias injuries? Why? (2002 Bar)
ANS: Yes. The general rule is that the acquittal of the accused does not
necessarily exempt him from civil liability. He may be acquitted but he may still be
adjudged civilly liable (Padilla v. Court of Appeals, G.R. No. L-39999, May 31,
1984).However, the civil action based on delict may 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 (Sec. 2, Rule 111).
E.PREJUDICIAL QUESTION
Q: What is a prejudicial question?
ANS:A prejudicial question is one which arises in a case, the resolution of which is
a logical antecedent of the issue involved therein and the cognizance of which
pertains to another tribunal (Quiambao v. Osorio, G.R. No. L-48157 March 16,
1988).
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A.NATURE OF RIGHT
Q: What is the nature of the right of the accused to preliminary investigation?
ANS:The right to preliminary investigation is of a statutory character and may be
invoked only when specifically created by statute. It is not a fundamental right and
is not among the rights guaranteed to the accused in the Bill of Rights. It may be
waived expressly or by silence (Herrera, p. 274).
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E.REVIEW
Q: What is the remedy of the aggrieved party from the resolution of the
investigating prosecutor?
ANS:An aggrieved party may appeal by filing a verified petition for review with the
Secretary of Justice, and by furnishing copies thereof to the adverse party and the
Prosecution Office issuing the appealed resolution, subject to the following
conditions:
a. The appeal shall be taken within 15 days from receipt of the resolution, or of the
denial of the motion for reconsideration/reinvestigation if one has been filed. Only
one motion for reconsideration shall be allowed;
b. Unless the Secretary directs otherwise, the appeal shall not stay the filing of the
corresponding information in court on the basis of the finding of probable cause in
the appealed resolution, but the appellant and prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court are held in abeyance;
c. The party filing a petition for review is allowed to file a motion for the suspension
of the arraignment;
d. If the Secretary of Justice finds the same to be patently without merit or
manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration, he may dismiss the petition outright;
e. If an Information has already been filed and the accused has already been
arraigned prior to the filing of the petition, the petition shall not be given due
course. If the accused has been arraigned after the filing of the petition, any
arraignment shall not bar the Secretary of Justice from exercising his power of
review;
f. The Secretary of Justice may reverse, affirm or modify the appealed resolution;
g. However, the Secretary has another option which is to order the reinvestigation of
the case by the investigating prosecutor or by another prosecutor designated to
conduct the same(DOJ Circular No. 70, July 3, 2000).
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doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence(Sec. 6, Rule 112).
I.INQUEST
Q: What is an inquest?
ANS: Inquest is an informal and summary investigation conducted by a public
prosecutor in criminal cases involving persons lawfully arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose of
determining whether or not said persons should remain under custody and
correspondingly be charged in court (DOJ Circular No. 61, September 21, 1993).
V. ARREST
Q: What is arrest?
ANS: Arrest is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense (Sec. 1, Rule 113).
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temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another(Sec. 5, Rule 113);
d. Where a person who has been lawfully arrested escapes or is
rescued(Sec. 13, Rule 113);
e. When the bondsman arrests a prisoner out on bail for the purpose of
bringing him to court(Sec. 23, Rule 114);
f. Where the accused attempts to leave the country without the permission of
the court(Ibid.).
C.METHOD OF ARREST
Q: Give and explain the different methods of arrest.
ANS: The following are the methods of arrest:
a. By an Officer with a Warrant The officer shall inform the person to be
arrested of the cause of the arrest and the fact that a warrant has been
issued for his arrest except 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 requires, the warrant shall be shown to him as soon as
practicable(Sec. 7, Rule 113).
b. By an Officer without a Warrant The officer shall inform the person to
be arrested of his authority and the cause of the arrestunlessthe latter is
either:
i. Engaged in the commission of an offense;
ii. Is pursued immediately after its commission; or
iii. Has escaped, flees, or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information will imperil the
arrest(Sec. 8, Rule 113).
c. By a Private Person He shall inform the person to be arrested of the
intention to arrest him and the cause of the arrest unless the latter is either:
i. Engaged in the commission of an offense;
ii. Is pursued immediately after its commission; or
iii. Has escaped, flees, or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information will imperil the
arrest(Sec. 9, Rule 113).
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VI. BAIL
Q: What is bail?
ANS: 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 (Sec. 1, Rule 114).
Q: What are the forms of bail for the release of a detained person?
ANS: Bail may be given in the form of:
a. Corporate surety (Sec. 10, Rule 114);
b. Property bond (Sec. 11, Rule 114);
c. Cash bond (Sec. 14, Rule 114);
d. Recognizance (Sec. 15, Rule 114).
A.NATURE
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Q: What is the remedy of the bondsman if the petition for cancellation of bail
is denied?
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ANS: The order of court denying it could be appealed from, for if such order were
not appealable, it would become final, without ulterior remedy, and would work
irreparable injury to the petitioner(Babasa v. Linebarger, G.R. No. 3026, April 26,
1906).
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Q: What is a plea?
ANS: A plea is a formal reaction or response required of the accused after the
complaint or Information has been read to him. It is his brief answer to the
accusation by declaring in open court either the words guilty or not guilty
(Pineda, p. 295).
Q: What is the effect if the plea to a lesser offense is without the consent of
the offended party and the prosecutor?
ANS: The conviction of the accused to the lesser offense is not a bar to another
prosecution for an offense which necessarily includes the offense charged in the
former information (People of the Philippines v. De Luna, G.R. No. 71969, June 22,
1989).
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E.SEARCHING INQUIRY
Q: What is the meaning of the duty of the judge to conduct a searching
inquiry?
ANS: A searching inquiry must not only comply with the requirements of Sec. 1,
par. (a), of Rule 116 but must also:
a. Expound on the events that actually took place during the arraignment, the words
spoken and the warnings given, with special attention to the age of the accused,
his educational attainment and socio-economic statusas well as the manner of
his arrest and detention, the provision of counsel in his behalf during the custodial
and preliminary investigations, and the opportunity of his defense counsel to
confer with him.These matters are relevant since they serve as trustworthy
indices of his capacity to give a free and informed plea of guilt;
b. Explain the essential elements of the crime he was charged with and thepenalty
and civil liability; and
c. Direct a series of questions to defense counsel to determine whether he has
conferred with the accused and has completely explained to him the meaning of
a plea of guilty.This formula is mandatory and absent any showing that it was
followed, a searching inquiry cannot be said to have been undertaken(People of
the Philippines v. Molina, G.R. Nos. 141129-33, December 14, 2001).
F.IMPROVIDENT PLEA
Q: What is an improvident plea?
ANS:It is a plea of guilty made without proper advice, or recklessly entered by the
accused without comprehending its seriousness and consequences (Pineda,
p.314).
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suspension shall not exceed 60 days counted from the filing of the petition(Sec.
11, Rule 116); and
d. There are pending incidents such as:
i. A Motion to Quash
ii. A Motion for Inhibition
iii. A Motion for Bill of Particulars
A.GROUNDS
Q: What are the grounds that the accused may invoke to quash a complaint
or Information?
ANS: The following are the only valid grounds to quash a complaint or Information:
a. That the facts charged do not constitute an offense;
b. That the court trying the case has no jurisdiction over the offense charged;
c. That the court trying the case has no jurisdiction over the person of the
accused;
d. That the officer who filed the information had no authority to do so;
e. That it does not conform substantially to the prescribed form;
f. That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
g. That the criminal action or liability has been extinguished;
h. That it contains averments which, if true, would constitute a legal excuse or
justification;
i. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent(Sec, 3, Rule 117).
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iii. That the accused has been previously convicted or acquitted of the
offenses charged.
NOTE: The court must state, in the order granting the motion, the release
of the accused if he is in custody or the cancellation of his bond if he is on
bail.
c. If the ground for the motion is based on lack jurisdiction over the offense
the better practice is to forward or remand the case to the proper court, not
to quash the complaint or Information.
E.DOUBLE JEOPARDY
Q: What is double jeopardy?
ANS: The rule on double jeopardy states that when a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other
manner without the express consent of the accused, the latter cannot again be
charged with the same or identical offense(Sec. 7, Rule 117).
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F.PROVISIONAL DISMISSAL
Q: What is meant by the concept of provisional dismissal?
ANS:The concept of a provisional dismissal contemplates that the dismissal of the
criminal action is not permanent and can be revived within the period set by the
Rules of Court (Sec. 8, Rule 117).
X. PRE-TRIAL
Q: What is the objective of a pre-trail?
ANS:Its main objective is to achieve an expeditious resolution of the case.
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C.PRE-TRIAL AGREEMENT
Q: What is the form of a pre-trial agreement?
ANS:All agreements or admissions made or entered into during the pre-trial
conference shall be reduced to writing and signed by the accused and counsel;
otherwise, the same shall not be used in evidence against the accused(Sec. 2, Rule
118).
E.PRE-TRIAL ORDER
Q: What is a pre-trial order?
ANS: It is an order issued by the court within 10 days after the termination of the
pre-trial, reciting the actions taken, the facts stipulated, the admissions made, the
evidence marked, the number of witnesses to be presented and the schedule of the
trial. Such order shall bind the parties, limit the trial to matters not disposed of and
control the course of action during the trial, unless modified by the court to prevent
manifest injustice(Sec. 4, Rule 118).
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Q: What cases shall not be referred for Court Annexed Mediation and Judicial
Dispute Resolution?
ANS: The following shall not be referred:
a. Other criminal cases not covered above.
b. All cases under R.A. No. 9262, (Anti-Violence against Women and
Children). However, if the parties to this case inform the court of their
agreement to submit to mediation, they shall accordingly be referred(AM.
No, 11-1-6-SC-PHILJA).
XI. TRIAL
A.INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW
Q: State the instances when the presence of the accused is required.
ANS:The presence of accused is required only:
a. During arraignment;
b. During trial, when ordered by the court for the purpose of his identification;
c. In the promulgation of the sentence except when the conviction is for a light
offense, in which case, it may be pronounced in the presence of his
counsel or a representative(Lavides v. Court of Appeals, G.R. No. 129670,
February 1, 2000).
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C.TRIAL IN ABSENTIA
Q: What is the concept of Trial in Absentia?
ANS: The absence of the accused without any justifiable excuse at the trial on a
particular date of which he had notice shall be considered a waiver of his right to be
present during that trial. When an accused under custody had been notified of the
date of the trial and escapes, he shall be deemed to have waived his right to be
present on said date and all subsequent trial dates until custody is regained. Trial
shall thus proceed in his absence(Sec. 1 [c], Rule 115).
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b. If the court denies the motion to discharge the accused as state witness,
his sworn statement shall be inadmissible in evidence;
c. Discharge of accused operates as an acquittal and bar to further
prosecution for the same offense, except if the accused fails or refuses to
testify against his co-accused in accordance with his sworn statement
constituting the basis of his discharge(Sec. 18, Rule 119).
G.DEMURRER TO EVIDENCE
Q: What is meant by demurrer to evidence?
ANS: Demurrer to evidence is a motion to dismiss based on insufficiency of
evidence (Sec. 23, Rule 119).
Q: What is the effect of filing the demurrer to evidence with leave of court?
ANS:If the motion for demurrer to evidence is with leaveof court and the demurrer
to evidence is denied, the accused still has the right to present evidence in his
defense(Ibid.).
Q: What is the effect of filing the demurrer to evidence without leave of court?
ANS:If the motion is filed without leave of court,the accused would be deemed to
have waived the right to present evidence and to have submitted the case for
decision on the basis of the prosecutions evidence(Ibid.).
XII. JUDGMENT
Q: Define judgment.
ANS:It is the adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition of the proper penalty and civil liability provided
for by the law(Sec. 1, Rule 120).
A.REQUISITES OF A JUDGMENT
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B.CONTENTS OF JUDGMENT
Q: What are the contents of the judgment?
ANS:If the judgment convictsthe accused, it must state the:
a. Legal qualification of the offense constituted by the acts committed by the
accused;
b. Aggravating or mitigating circumstances attending its commission;
c. Participation of the accused, whether as principal, accomplice or
accessory;
d. Penalty imposed upon the accused;
e. Civil liability or damages caused by the wrongful act or omission, unless a
separate civil action has been reserved or waived.
Q: State the rules when there is variance between the offense charged and
the offense proved.
ANS: As a general rule, an accused can be convicted of an offense only when it is
both charged and proved. Variance between the allegation and proof cannot justify
conviction for either the offense charged or the offense proved unless either is
included in the other (Esguerra v. People of the Philippines, G.R. No. L-14313, July
26, 1960). However, when the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved
which is included in the offense charged, or of the offense charged which is
included in the offense proved (Sec. 4, Rule 120). In short, in case of variance
between what is alleged and what is proved, as long as the court has jurisdiction,
the conviction should always be for the lesser offense (Pineda, p. 487).
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b. When despite due notice to the accused or his bondsman or warden and
counsel, the accused failed to appear at the promulgation of the decision(Sec. 6,
Rule 120).
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The Neypes rule was expressly declared to be applicable to appeals under Rules
40, 41, 42, 43, and 45. Rule 122, Sec. 3 however, of the Rules on Criminal
Procedure also allows appeal in criminal cases based under Rule 42(Sec. 3[b],
Rule 122) and Rule 45(Sec. 3 [e], Rule 122). If the appeal in a criminal case is
predicated upon either Rule 42 or Rule 45, it is likewise submitted that the Neypes
rule should be made to apply.
XIV. APPEAL
Q: Discuss the concept of appeal.
ANS:Any party may appeal from a judgment or final order, unless the accused will
be placed in double jeopardy(Sec. 1, Rule 122).
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A.EFFECT OF AN APPEAL
Q: What is the effect of an appeal in criminal cases?
ANS:In criminal cases, an appeal throws the case wide open for review and the
reviewing tribunal can correct errors or even reverse the trial courts decision on
grounds other than those that the parties raised as errors. Therefore, the appellate
court may modify the penalty, indemnity or the damages awarded by the trial court,
even if the offended party had not appealed from said award, and the party who
sought a review of the decision was the accused.The rule is in contrast with the
general rule in civil cases where as a rule, no error will be considered by the
appellate court unless stated in the assignment of errors subject to certain
exceptions.
B.WHERE TO APPEAL
Q:Where does one file an appeal?
ANS: If the case was decided by the MTCs, the appeal should be filed with the
RTC. If the case was decided by the RTC, the appeal should be filed with the CA or
the SC in proper cases provided by law. If the case was decided by the CA, the
appeal should be filed with the SC (Sec. 3, Rule 121).
NOTE: Sec. 1 of R.A. No. 9346, approved June 24, 2006, now prohibits the
imposition of the death penalty.
d. Appealsfrom CA to SC
i. The appeal is generally made by filing a petition for review on certiorari
under Rule 45 with the SC, because the procedure for the review by the
SC of decisions in criminal cases rendered by the CA shall be the same
as in civil cases (Sec. 2, Rule 125, Rules of Court in relation to Sec. 1,
Rule 45, Rules of Court).
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D.PROBABLE CAUSE
Q: What is the meaning of probable cause in relation to a search warrant?
ANS:Probable cause for search warrant means such facts and circumstances
which could lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the offense are
in the place sought to be searched.
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NOTE: The warrantless search and seizure as an incident to a lawful arrest may
extend beyond the person of the one arrested to include the premises or
surrounding under his immediate control. The phrase within the area of his
immediate control means the area from within which he might gain possession of
a weapon or destructible evidence.
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e. Plain View Situation The elements of the plain view exception are:
i. Prior valid intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties;
ii. The evidence was inadvertently discovered by the police who have the right to
be where they are;
iii. The evidence must be immediately apparent; and
iv.Plain view justified mere seizure of evidence without further search.
f. Stop and Frisk Situation This is a limited protective search of outer clothing for
weapon. A genuine reason must exist, in light of the police officers experience
and surrounding conditions, to warrant the belief that the person who manifests
unusual suspicious conduct has weapons or contraband concealed about him.
Such stop-and-frisk practice serves a dual purpose:
i. The general interest of effective crime prevention and detection; and
ii. The safety of the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could be used
against him.
i. Others:
i. When it is an incident of inspection;
ii. Enforcement of health and sanitary laws;
iii. In times of war within the area of military operation.
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b. Preliminary Injunction
c. Receivership
d. Delivery of personal property
e. Support pendente lite.
EVIDENCE
I. GENERAL PRINCIPLES
A.CONCEPT OF EVIDENCE
Q: Define Evidence.
ANS: Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a
judicial proceeding, the truth respecting a matter of fact (Sec. 1, Rule 128).Evidence
is a means of proving a fact. It is offered to ascertain the truth respecting a matter of
fact (Riano, Evidence: The Bar Lecture Series, 2009 ed., p.3).
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ANS: The rules of evidence shall be the same in all courts and in all trials and
hearings, except as otherwise provided by law or by these rules (Sec. 2, Rule 128).
DISTINCTIONS
Evidence in Criminal
Evidence in Civil Cases
Cases
The claimant must show The prosecution must
Quantum of
a preponderance of prove guilt beyond
Proof
evidence. reasonable doubt.
In criminal cases, except
those involving quasi-
An offer of compromise offenses or those allowed
is not an admission of by law to be
Offer of
liability and is not compromised, the offer of
Compromise
admissible against the compromise by the
offeror. accused may be received
in evidence as an implied
admission of guilt.
General denial is General denial is not
General Denial
allowed. allowed.
Judicial admission
Withdrawal of Withdrawn plea is
withdrawn becomes
Plea/Admission inadmissible.
extrajudicial admission.
Generally, there exists
no presumption in favor The accused enjoys the
Presumption of
of either party, except in presumption of his
Innocence
cases specifically innocence.
provided for by law.
Party who loses is the
Equiponderance
one who has the burden Accused is acquitted.
of Evidence
of proof.
Presence of
More than one is
Circumstantial Not applicable.
required.
Evidence
Privileged Applicable. Not applicable.
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Communication
(Doctor-Patient)
A party or defendant may The accused cannot be
Compulsion as a
be compelled to be a compelled to be a
Witness
witness. witness.
Cross-
Examination in
Not applicable. Applicable.
Summary
Procedure
F.ADMISSIBILITY OF EVIDENCE
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Multiple Admissibility
Q: May evidence be admissible for more than one purpose?
ANS: Yes. Where the evidence is relevant and competent for two or more
purposes, such evidence may be admitted for any or all the purposes for which it is
offered provided it satisfies all the requirements of law for its admissibility
therefor(Riano, p.26).
Conditional Admissibility
Q: P filed an action for recovery of ownership of a parcel of land against D.
The complaint alleged that P is the owner of the property. During trial, Mr. P
testified and adduced evidence that sometime in 1995, the property subject of
the action was bought by O from a certain M. D objected on the ground that
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Curative Admissibility
Q: What is the doctrine of curative admissibility?
ANS: The doctrine of curative admissibility states that where improper evidence
was admitted over the objection of the opposing party, he should be permitted to
contradict it with similar improper evidence. Otherwise it would result in disparity of
rulings to his prejudice(Riano, p.30).
Q: Is a negative result on a paraffin test conclusive evidence that one has not
fired a gun?
ANS: No. It is possible for a person to fire a gun and yet bear no traces of nitrates
or gunpowder, as when the culprit washes his hands or wears gloves (People of the
Philippines v. Cerilla, G.R. No. 177147, November 28, 2007).
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H.PRESUMPTIONS
Q: Define presumption.
ANS: Presumption is an inference as to the existence of a fact not actually known,
arising from its usual connection with another which is known or a conjecture based
on past experience as to what course human affairs ordinarily take(Martin v. Court
of Appeals, G.R. No. 82248, January 30, 1992).
Conclusive Presumptions
Q: When is a presumption deemed conclusive?
ANS: A presumption is conclusive when the presumption becomes irrefutable upon
presentation of evidence and any evidence tending to rebut the presumption is
inadmissible. The following are the conclusive presumptions under the Rules of
Court:
a. Estoppel in pais Whenever a party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a particular thing to be 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.
b. Estoppel against tenant The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the relation of landlord and tenant
between them (Sec. 2, Rule 131).
Disputable Presumptions
Q: What are Disputable Presumptions?
ANS: These presumptions are satisfactory if uncontradicted, but may be
contradicted or overcome by other evidence. When evidence that rebuts the
presumption is introduced, the force of the presumption disappears.Sec. 3, Rule
131 of the Rules of Court enumerates the different disputable presumptions.
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J.QUANTUM OF EVIDENCE
Preponderance Of Evidence
Q: What is meant by preponderance of evidence?
ANS: This is the quantum of evidence applicable to civil cases. It means that the
evidence adduced by one side is, as a whole, superior to or has greater weight than
that of the other (Bank of the Philippine Islands v. Reyes, G.R. No. 157177,
February 11, 2008).
Q: What are the factors which the court may consider in determining whether
or not there is preponderance of evidence?
ANS: In determining whether or not there is preponderance of evidence, the court
may consider the following:
a. All the facts and circumstances of the case;
b. The witnesses 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 witnesses 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 not mean that preponderance is
necessarily with the greater number (Sec. 1, Rule 133).
Substantial Evidence
Q: Define substantial evidence.
ANS: This degree of evidence applies to cases filed before administrative and
quasi-judicial bodies. It requires that in order to establish a fact, the evidence
should constitute that amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion (Sec. 5, Rule 133).
Q:What is the burden of proof in petitions for writ of amparo and habeas
data?
ANS: The parties shall establish their claims by substantial evidence in petitions for
writ of amparo (Sec. 17, The Rule on the Writ of Amparo) and habeas data (Sec.
16, The Rule on the Writ of Habeas Data).
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Mandatory
Q:When is judicial notice mandatory?
ANS:The court shall take judicial notice of the following:
a. The existence and territorial extent of states
b. Their political history, forms of government, and symbols of nationality
c. The law of nations
d. The admiralty and maritime courts of the world and their seals
e. The political constitution and history of the Philippines
f. The official acts of the legislative, executive and judicial departments of the
Philippines
g. The laws of nature
h. The measure of time
i. The geographical divisions(Sec. 1, Rule 129).
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Discretionary
Q: When is judicial notice discretionary?
ANS: Judicial notice is discretionary in the following matters:
a. Matters which are of public knowledge
b. Matters capable of unquestionable demonstration
c. Matters ought to be known to judges because of their judicial
functions(Sec. 2, Rule 129).
C.JUDICIAL ADMISSIONS
Q: What is judicial admission?
ANS: A judicial admission is an admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof (Sec. 4, Rule
129).
NOTE: 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(PCIB v.Escolin, G.R. Nos. L-27860 and L-27896, March 29,
1974).
Q: Can the Philippine courts take judicial notice of the law of nations?
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ANS: Yes. The law of nations is subject to a mandatoryjudicial notice. Under the
Philippine Constitution, we adopt the generally accepted principles of international
law as forming part of the law of the land. Being part of the law of the land, they are
therefore technically in the nature of local laws and thus subject to mandatory
judicial notice(Riano, p.89).
D.DEMONSTRATIVE EVIDENCE
Q: Define demonstrative evidence.
ANS: It is tangible evidence that merely illustrates a matter of importance in the
litigation, such as maps, diagrams, models, summaries and other material specially
made for litigation. It is not the actual thing but rather represents or demonstrates
the real thing(Riano, p.160).
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The chain of custody rule also applies in the assessment of the probative value of
DNA evidence. Issues on how the biological samples were collected, handled, and
the possibility of contamination will be taken into consideration (Sec. 6 [a], Rule on
DNA Evidence).
Meaning of DNA
Q: What is DNA?
ANS: DNA(Deoxyribonucleic Acid) is the chain of molecules found in every
nucleated cell of the body. The totality of an individuals DNA is unique for the
individual, except identical twins (Sec. 3 [b]).
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v. The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy and integrity of the DNA testing (Sec. 4).
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When Applicable
Q: When is the best evidence rule applicable?
ANS: When the subject of the inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself(Sec. 3, Rule 130).
Where the issue is only as to whether such a document was actually executed,
exists or on the circumstances relevant to or surrounding its execution, the best
evidence rule does not apply and testimonial evidence is admissible. Any other
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Q: During the direct examination for an annulment case, counsel asked the
witness what happened after the wedding ceremony on June 18, 2010. The
witness answered that H and W signed a document and that same document
was also signed by the priest. The counsel subsequently asked what
document they signed. The witness answered that it was the marriage
contract. The opposing counsel raised an objection that the best evidence is
the marriage contract. Decide whether the objection should be sustained.
ANS: No. The best evidence rule does not apply. The inquiry involved the existence
and execution of the marriage contract. An inquiry into these matters does not bring
the best evidence rule into operation there being no inquiry as to the contents of the
document. The best evidence rule applies only when the subject of inquiry is the
contents of a document(Sec. 3, Rule 130).
Meaning of Original
Q: When is a document considered original?
ANS: The following are considered as originals of a document:
a. One the contents of which are the subject of inquiry;
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 (duplicate originals);
c. When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries
are equally regarded as originals(Sec. 4, Rule 130).
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The written agreement is already considered to contain all the things agreed
upon. Being a final agreement, any extraneous evidence or parol evidence
is inadmissible for any of the following purposes: (a) to modify; (b) to explain;
or (c) to add to the terms of the written agreement(Ibid.).
Distinctions between the Best Evidence Rule and Parol Evidence Rule
Q: State the distinctions between the parol evidence rule and the best
evidence rule.
ANS: The differences are the following:
a. The parol evidence rule presupposes that the original is available in court;
while the best evidence rule contemplates a situation where the original is
not available in court and/or there is a dispute as to whether said writing is
the original;
b. The parol evidence rule prohibits the varying of the terms of a written
agreement; whereas the best evidence rule prohibits the introduction of
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Q: X was hired by Philoil Co. as General Manager for its oil exploration
venture in Palawan. The employment contract expressly provided that X was
to receive a salary of PhP10,000 a month plus representation and traveling
expenses of PhP5,000 a month. Philoil Co. failed to pay and so X filed an
action for specific performance of the employment contract. At the trial,
Philoil Co. attempted to prove, by oral testimony that the payment of salary to
X was subject to the condition that Philoil Cos exploration in Palawan was
already successful. Is such oral testimony admissible?(1978 Bar)
ANS: No. Under the parol evidence rule, no evidence of the terms of a writing is
admissible other than the contents of the written agreement. Such content cannot
be modified, altered or explained by extrinsic or parol evidence like oral testimony.
Meaning of Authentication
Q:What is authentication?
ANS:Authentication means the act or mode of giving authenticity to a statute,
record or other written instrument, or a certified copy thereof, so as to render it
legally admissible in evidence(Herrera, Remedial Law Vol. VI, 1999 ed., p. 262).
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All other writings are private documents (Sec. 19, Rule 132).
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Attestation of a Copy
Q: What must the attestation of copies of public records or documents state?
ANS:An attestation of a copy must state that it is a correct copy of the original or a
specific part thereof, as the case may be.Likewise, it must be under the official seal
of the attesting officer, if there be any or if he be a clerk of court having a seal,
under the seal of such court(Sec. 25, Rule 132).
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V. TESTIMONIAL EVIDENCE
Q: What is the nature of testimonial evidence as a source of evidence?
ANS: Testimonial evidence may be oral or in writing, like a deposition (Albano,
Remedial Law Reviewer, 2010 ed., p. 1213).
A.QUALIFICATIONS OF A WITNESS
Q: Who may be witnesses?
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ANS:Subject to certain exceptions provided for under the Rules of Court, all
persons who can perceive, and perceiving, and can make known their perception to
others, may be witnesses (Sec. 20, Rule 130).
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C.DISQUALIFICATION OF WITNESSES
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By Reason of Marriage
Q: Can the spouses testify against each other? Is the rule absolute?
ANS: During their marriage, neither the husband nor the wife testify for or against
the other without the consent of the affected spouse, 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 latters direct descendants or ascendants (Sec. 22, Rule 130).
Q: What is the reason for the rule prohibiting one spouse from testifying for
or against the other?
ANS: To obviate perjury for or against the other and to prevent domestic disunity
and unhappiness (United States v. Concepcion, G.R. No. L-10396, July 29, 1915).
Q: Vida and Romeo are legally married. Romeo was charged in court with the
crime of serious physical injuries committed against Selmo, son of Vida, and
stepson of Romeo. Vida witnessed the infliction of the injuries on Selmo by
Romeo. The public prosecutor called Vida to the witness stand and offered
her testimony as an eyewitness. Counsel for Romeo objected on the ground
of the marital disqualification rule under the Rules of Court.
a. Is the objection valid?
b. Will your answer be the same if Vidas testimony is offered in a civil case
for recovery of personal property filed by Selmo against Romeo? (2000 Bar)
ANS:
a. No. While neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, one exception is if the
testimony of the spouse is in a criminal case for a crime committed by one
against the other or the latters direct descendants or ascendants(Sec, 22,
Rule 130). The case falls under this exception because Selmo is the direct
descendant of the spouse Vida.
b. No. The marital disqualification rule applies this time. The exception
provided by the rules is in a civil case by one spouse against the other. The
case here involves a case by Selmo for the recovery of personal property
against Vidas spouse, Romeo.
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b. Suppose a year after the marriage, the marriage is annulled. May W now
testify despite the objection of H?
ANS:
a. W cannot testify over the objection of H. The situation is covered by the
marital disqualification rule.
b. Yes. The prohibition no longer applies since the testimony is to be offered
after, not during the marriage (Riano, p.266-267).
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Q: Does the attorney-client privilege preclude inquiries into the fact that the
lawyer was consulted?
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ANS: As a general rule, no. The traditional and still applicable rule is that an inquiry
into the fact of consultation or employment is not privileged. Even the identity of the
client is not privileged as well as that of the lawyer is not privileged. However, under
the so-called Last Link Doctrine, non-privileged information such as identity of the
client is protected if the revelation of such information would necessarily reveal
privileged information(Riano, p.283).
Public Officers
Q: What are the requisites of the rule protecting communications made to
public officers in official confidence?
ANS: Before the privilege can be invoked, the following requisites must concur:
a. The holder of the privilege is the government, acting through a public
officer;
b. The communication was given to the public officer in confidence;
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c. The communication was given during the term of office of the public officer
but the privilege may be invoked not only during the term of office of the
public officer but also after;
d. The public interest would suffer by the disclosure of the
communication(Sec. 24 [e], Rule 130).
D.EXAMINATION OF A WITNESS
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NOTE: Other than the foregoing, the following are methods which may be
used to impeach the adverse partys witness:
i. By involving him during cross examination in contradiction;
ii. By showing the impossibility or improbability of his testimony;
iii. By proving action or conduct of the witness inconsistent with his testimony;
iv. By showing bias, interest or hostile feeling against the adverse party
(Herrera, p. 209);
v. By showing that there is a defect in the observation, memory or narration
by the witness(Herrera, p. 219).
NOTE: Non-compliance with the foundational elements for this mode will be a
ground for an objection based on improper impeachment. Over a timely objection,
extrinsic evidence of a prior inconsistent statement without the required foundation
is not admissible(Riano, p.327).
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Admission by a Party
Q: What is an admission?
ANS: An admission is an act, declaration or omission of a party as to a relevant fact
which may be given in evidence against him (Sec. 26, Rule 130). It is a voluntary
acknowledgment made by a party of the existence of the truth of certain facts which
are inconsistent with his claims in an action (Blacks Law Dictionary, 5th Ed., 44).
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guilt or of the criminal intent to commit the offense with which one is
charged (Ladiana v. People of the Philippines, G.R. No. 144293, December
4, 2002);
b. An admission in a general sense includes confessions, the former being a
broader term because accordingly, a confession is also an admissionby
the accused of the fact charged against him or of some fact essential to the
charge (4 Wigmore, Sec. 1050). A confession is a specific type of
admission which refers only to an acknowledgment of guilt;
c. An admission may be implied like an admission by silence; a confession
cannot be implied;
d. Applied to a criminal case, a confession is an acknowledgment in express
terms, by a party in a criminal case, of his guilty of the crime charged, while
an admission is a statement by the accused, direct or implied, of facts
pertinent to the issue, and tending, in connection with proof of other facts,
to prove his guilt (Herrera, p. 114-115).
NOTE: The same rule applies to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the party (Ibid.).
Admission by a Conspirator
Q: What are the requisites of admission by a co-conspirator?
ANS: For the admission of a conspirator to be received against his co-conspirators,
it is necessary that:
a. The declaration or act must be made or done during the existence of the
conspiracy;
b. The declaration or act must relate to the conspiracy itself; and
c. The conspiracy must be shown by evidence other than the declaration or
act(Sec. 30, Rule 130).
Admission by Privies
Q: What are the requisites of admission by privies?
ANS: The requisites are:
a. There must be an act, declaration or an omission by a predecessor-in-interest;
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b. The act, declaration or omission of the predecessor must have occurred while he
was holding the title to the property; and
c. The act, declaration or omission must be in relation to the property (Sec. 31, Rule
130).
Admission by Silence
Q: What are the requisites of admission by silence?
ANS:Before the silence of a party may be taken as an admission of what is said, it
must appear that:
a. He heard and understood the statement;
b. He was at liberty to interpose a denial;
c. The statement was in respect to some matter affecting his rights or in which he
was then interested, and calling, naturally, for an answer;
d. The facts were within his knowledge; and
e. The fact admitted or the inference to be drawn from his silence would be material
to the issue (People of the Philippines v. Paragsa, G.R. No. L-44060, July 20,
1978).
NOTE:It must be noted, however, that the accuseds right to remain silent prevails
over the rule allowing silence of a person is admissible (Regalado, p.763).
Confessions
Q:What is a confession?
ANS:It is a categorical acknowledgment of guilt made by an accused of the offense
charged or of any offense necessarily included therein, without any exculpatory
statement or explanation (Sec. 33; Regalado, p. 764). It may be given in evidence
against him(Sec. 33, Rule 130).
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F.HEARSAY RULE
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Meaning of Hearsay
Q: What is hearsay?
ANS: It is an oral testimony or documentary evidence as to somebodys words or
actions outside of court, where they are offered to prove the truth of the very
matters they assert(V. Wigmore, Evidence; Chadbourn Rev., Secs. 1360-
1365).Evidence is called 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 (Estrada v. Desierto, G.R. Nos. 146710-15, March 2,
2001).
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Dying Declarations
Q: What are dying declarations?
ANS: Dying declarations are the ante mortem statements made by a person after
the mortal wound has been inflicted under the belief that death is certain, stating the
facts concerning the cause of and the circumstances surrounding the attack. It
applies to any case where death of the declarant is the subject of the
inquiry(Herrera, p. 596).
Q: The accused was charged with robbery and homicide. The victim suffered
several stab wounds. It appears that 11 hours after the crime, while the victim
was being brought to the hospital in a jeep, with his brother and a policeman
as companions, the victim was asked certain questions which he answered,
pointing to the accused as his assailant. His answers were put in writing, but
since he was a in a critical condition, his brother and the policeman signed
the statement. Is the statement admissible as a dying declaration?(1999 Bar)
ANS: Yes. The statement is admissible as a dying declaration if the victim
subsequently died andhis answers were made under the consciousness of
impending death (Sec. 37 of Rule 130). The fact that he did not sign the statement
point to the accused as his assailant, because he was in critical condition, does not
affect its admissibility as a dying declaration. A dying declaration need not be in
writing (People of the Philippines v.Viovicente, G.R. No. 118707, February 2, 1998;
Answers to the Bar Examination Questions by the UP Law Complex and Philippine
Law Schools Association 2006).
Q: X was stabbed and brought to the hospital. When asked by the police
before his dying declaration was taken whether he believed he was going to
die of his wounds, his answer was: God willing, I will survive. The
admission of the dying declaration on trial was objected to on the ground that
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establish a right through his declarations to the property of some other member of
the family (Tison v. Court of Appeals, G.R. No. 121027, July 31, 1997).
Common Reputation
Q: What is meant by common reputation?
ANS:Common reputation is the prevailing belief in the community as to the
existence of a certain fact or aggregation of facts(Blacks Law Dictionary, 5th
Edition, p. 250).
Q: Aside from facts of public or general interest more than 30 years old, what
other matters may be proved by common reputation?
ANS: The following may be proved by common reputation:
a. Matters respecting marriage
b. Matters respecting moral character(Sec. 41, Rule 130).
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opportunity for the declarant to deliberate and to fabricate a false statement (People
of the Philippines v. Sanchez, G.R. No. 74740, August 28, 1992).
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d. That the entrant made the entry in his professional capacity or in the performance
of a duty;
e. The entrant must be deceased or unable to testify(Northwest Airlines, Inc. v.
Chiong, G.R. No. 155550, January 31, 2008).
Learned Treatise
Q: When is a learned treatise admissible?
ANS: A published treatise, periodical or pamphlet on a subject of law, history,
science or art may be admissible as tending to prove the truth of a matter stated
therein if:
a. The court takes judicial notice of it; or
b. 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).
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G.OPINION RULE
Q: May the opinion of an ordinary witness be received as evidence?
ANS: As a general rule, it is not admissible. Witnesses must give the facts and not
their inferences, conclusions or opinions, except for the following:
a. Opinion of an Expert Witness The opinion of a witness requiring special
knowledge, skill, experience or training which he is shown to possess may be
received in evidence(Sec. 49, Rule 130).
b. Opinion of an Ordinary Witness The opinion of an ordinary witness may be
received in evidence regarding:
i. The identity of a person about whom he has adequate knowledge;
ii. A handwriting with which he has sufficient familiarity;
iii. The mental sanity of a person with whom he is sufficiently acquainted;
iv. The witness impression of the emotion, behavior, condition or appearance of a
person (testimony of collective facts) (Sec. 50, Rule 130).
H.CHARACTER EVIDENCE
Q: Distinguish character from reputation.
ANS: The distinctions are the following:
a. Character is the aggregate of the moral qualities which belong to and
distinguish an individual person; the general result of ones distinguishing
attributes. It refers to what a man is and depends on the attributes he
possesses. On the other hand, reputation depends on attributes which
others believe one to possess;
b. Character signifies reality while reputation signifies what is accepted to be
reality at present;
c. Character is what the person really is; while reputation is what he is
supposed to be in accordance with what people say he is, and is
dependent on how people perceive a person to be (Riano, p. 335).
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The party who presents a child witness or the guardian ad litem of such child
witness may, however, move the court to allow him to testify in the manner provided
in the Rule(Sec. 8).
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The person seeking such an order shall apply at least 5 days before the trial date,
unlessthe court finds on the record that the need for such an order was not
reasonably foreseeable.
The court may order that the testimony of the child be taken by live-link television if
there is a substantial likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as the case may be.
The trauma must be of a kind which would impair the completeness or truthfulness
of the testimony of the child. The child shall, therefore, testify in a separate room.
The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject to
a protective order(Sec. 25).
NOTE:
a. If the court finds that the child will not be able to testify in open court at trial, it
shall issue an order that the deposition of the child be taken and preserved by
videotape. The judge shall preside at the videotaped deposition of the child.
b. It must be noted that the right of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be violated during
the deposition.
c. If the order of the court is based on evidence that the child is unable to testify in
the physical presence of the accused, the court may direct the latter to be
excluded from the room. In such case, the court shall order that the testimony of
the child be taken by live-link television.
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Protective Orders
Q: When is Protective Order available?
ANS: A protective order shall be available in the following instances:
a. Any videotape or audiotape of a child that is part of the court record shall
be under a protective order that provides as follows:
i. Tapes may be viewed only by parties, their counsel, their expert witness,
and the guardian ad litem;
ii. No tape, or any portion thereof, shall be divulged by any person
mentioned to any other person, except as necessary for the trial;
iii. No person shall be granted access to the tape unless he signs a written
affirmation that in case of violation of the protective order, he will be
subject to the contempt power of the court;
iv. Each of the tape cassettes and transcripts thereof made available shall
bear a cautionary notice;
v. No tape shall be given, loaned, sold, or shown to any person except as
ordered by the court;
vi. Within 30 days from receipt, all copies and any transcripts thereof shall
be returned to the clerk of court for safekeeping unless the period is
extended by the court on motion of a party; and
vii. The protective order shall remain in full force and effect until further
order of the court.
b. As additional protective orders, the court may, motu proprio or on motion of
any party, the child, his parents, legal guardian, or the guardian ad litem,
issue additional orders to protect the privacy of the child(Sec. 31).
C.OBJECTION
Q: When is the proper time for objection?
ANS:The proper time to make a protest or objection against the admission of
evidence depends on the manner the evidence is offered.
a. Objection to evidence offered orally must be made immediately after the offer is
made;
b. Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefore shall become
reasonably apparent;
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c. In case of an offer of evidence in writing, the objection must be within 3 days after
notice of the offer unless a different period is allowed by the court(Sec. 36, Rule
132).
NOTE: A protest or objection against the admission of any evidence must be made
at the proper time, and if not so made, it will be understood to have been waived
(Mactan Cebu International Airport Authority v. Court of Appeals, G.R. No. 121506,
October 30, 1996). In any case, the grounds for the objections must be specified
(Sec. 36, Rule 132).
D.REPETITION OF AN OBJECTION
Q:When may a continuing objection be made?
ANS: When it becomes reasonably apparent in the course of the examination of a
witness that the questions being propounded are of the same class as those to
which objection has been made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the objection, it being sufficient for the
adverse party to record his continuing objection to such class of questions(Sec. 37,
Rule 132).
E.RULING
Q: When should the court rule on the objection raised?
ANS:The ruling of the court must be given immediately after the objection is made.
The court may however take a reasonable time to study the questions raised by the
objection, but a ruling should always be made during the trial and at such time as
will give the party against whom it is made an opportunity to meet the situation
presented by the ruling.
NOTE: The reason for sustaining or overruling an objection need not be stated.
However, if the objection is based on two or more grounds, a ruling sustaining the
objection on one or some of them must specify the ground or grounds relied
upon(Sec. 38, Rule 132).
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If the evidence excluded is oral, the offeror may state for the record the same and
other personal circumstances of the witness and the substance of the proposed
testimony(Sec. 40, Rule 132).
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ANS: A preliminary conference shall be held not later than 30 daysafter the last
answer is filed. The rules on pre-trial shall be applicable to the preliminary
conference unless it is inconsistent with the provisions of the Rule(Sec. 7).
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ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of or on acting in his behalf;
iii. Actions coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property and support during the pendency of
the action; and
iv.Actions which may be barred by the Statute of Limitations.
i. Any class of disputes which the President may determine in the interest of justice
or upon the recommendation of the Secretary of Justice;
j. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL);
k. Labor disputes or controversies arising from employer-employee relations;
l. Actions to annul judgment upon a compromise which may be filed directly in
court(Adm. Circ. No. 14-93).
III. VENUE
Q: What are the rules on venue of barangay conciliation?
ANS: The following rules govern the venue of barangay conciliation:
a. Disputes between persons actually residing in the same barangay shall be
brought for amicable settlement before the Lupon of said barangay.
b. Those involving actual residents of different barangays within the same city
or municipality shall be brought in the barangay where the respondent or
any of the respondents actually resides, at the election of the complainant.
c. All disputes involving real property or any interest therein shall be brought
in the barangay where the real property or the larger portion thereof is
situated.
d. Those arising at the workplace where the contending parties are employed
or at the institution where such parties are enrolled for study, shall be
brought in the barangay where such workplace or institution is located(Sec.
409, LGC).
V. EXECUTION
Q: What is the period for execution?
ANS:The amicable settlement and arbitration award shall have the force and effect
of a final judgment of a court upon the expiration of 10 days from the date thereof
(Sec. 416, LGC). The settlement or award may be enforced by execution of the
Lupon within 6 months from the date of the settlement. After the lapse of such time,
the settlement may be enforced by action in the appropriate city or municipal
court(Sec. 417, LGC).
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VI. REPUDIATION
Q: When may a party repudiate the amicable settlement?
ANS: Any party to the dispute may, within 10 days from the date of the settlement,
repudiate the same by filing with the Lupon chairman a statement to that effect
sworn to before him, where the consent is vitiated by fraud, violence or
intimidation.The repudiation shall be sufficient basis for the issuance of the
certification necessary for filing a complaint before the courts(Sec. 418, LGC).
The kinds of cases that can be filed inSmall Claims Court vary, but the case must
seek money only. Forexample, a suit cannot be brought in Small Claims Court to
forcea person or business to fix a damaged good; or to demand fulfillmentof a
promised obligation which is not purely for money, or to seekmoney to compensate
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for pain and suffering. Some of the kinds ofcases which are allowed as small claims
include the following:
a. Actual damage caused to vehicles, other personalproperty, real property or
person;
b. Payment or reimbursement for property, deposit, ormoney loaned;
c. Payment for services rendered, insurance claim, rent,commissions, or for goods
sold and delivered;
d. Money claim pursuant to a contract, warranty oragreement; and
e. Purely civil action for payment of money covered by bounced or stopped check
(Explanatory note,A.M. No. 08-8-7-SC).
NOTE: No evidence shall be allowed during the hearing which was not
attached to or submitted together with the Claim, unless good cause is shown
for the admission of additional evidence. No formal pleading, other than the
Statement of Claim, is necessary to initiate a small claims action(Sec. 5).
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IV. APPEARANCES
Q: Who shall appear for the party at the designated hearing?
ANS: The parties shall appear at the designated date of hearing personally or
through a representative authorized under a Special Power of Attorney to enter into
an amicable settlement, to submit to Judicial Dispute Resolution and to enter into
stipulations or admissions of facts and of documentary exhibits(Sec. 16). No
attorney shall appear in behalf of or represent a party at the hearing unless the
attorney is the plaintiff or defendant(Sec. 17).
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ANS: Except the Supreme Court, no court can issue a TRO or writ of preliminary
injunction against lawful actions of government agencies that enforce environmental
laws or prevent violations thereof(Sec. 10, Rule 2).
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A.WRIT OF KALIKASAN
Q: What is the Writ of Kalikasan?
ANS: The writ of kalikasan is a remedy available to a natural or juridical person,
entity authorized by law, peoples organization, non-governmental organization, or
any public interest group accredited by or registered with any government agency,
on behalf of persons whose constitutional right to a balanced and healthful ecology
is violated, or threatened with violation by an unlawful act or omission of a public
official or employee, or private individual or entity, involving environmental damage
of such magnitude as to prejudice the life, health or property of inhabitants in two or
more cities or provinces(Sec. 1, Rule 7).
C.DISCOVERY MEASURES
Q: What discovery measures are available to the parties?
ANS: A party may file a verified motion for the following reliefs:
a. Ocular Inspection; order The court may order any person in possession or
control of a designated land or other property to permit entry for the
purpose of inspecting or photographing the property or any relevant object
or operation thereon.
b. Production or inspection of documents or things; order The court may
order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of the
movant(Sec. 12, Rule 7).
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E.BAIL
Q: Where may bail be filed?
ANS: Bail may be filed in the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge, metropolitan trial
judge, municipal trial judge or municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a province, city or municipality other than
where the case is pending, bail may also be filed with any Regional Trial Court of
said place, or if no judge thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein. If the court grants bail,
the court may issue a hold-departure order in appropriate cases(Sec. 1, Rule 14).
Q: What are the duties of the court in acting upon the application for bail?
ANS:Before granting the application for bail, the judge must read the information in
a language known to and understood by the accused and require the accused to
sign a written undertaking, as follows:
a. To appear before the court that issued the warrant of arrest for arraignment
purposes on the date scheduled, and if the accused fails to appear without
justification on the date of arraignment, accused waives the reading of the
information and authorizes the court to enter a plea of not guilty on behalf of the
accused and to set the case for trial;
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b. To appear whenever required by the court where the case is pending; and
c. To waive the right of the accused to be present at the trial, and upon failure of the
accused to appear without justification and despite due notice, the trial may
proceed in absentia (Sec. 2, Rule 14).
G.PRE-TRIAL
Q: When is the period for pre-trial conference?
ANS: After the arraignment, the court shall set the pre-trial conference within 30
days. It may refer the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least 3 days prior to the pre-trial(Sec. 1, Rule
16).
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H.SUBSIDIARY LIABILITIES
Q: May the court enforce subsidiary liability?
ANS: Yes. In case of conviction of the accused and subsidiary liability is allowed by
law, the court may, by motion of the person entitled to recover under judgment,
enforce such subsidiary liability against a person or corporation subsidiarily liable
under Article 102 and Article 103 of the Revised Penal Code(Sec. 1, Rule 18).
V. EVIDENCE
A.PRECAUTIONARY PRINCIPLE
Q: What is the precautionary principle?
ANS: Precautionary principle states that when human activities may lead to threats
of serious and irreversible damage to the environment that is scientifically plausible
but uncertain, actions shall be taken to avoid or diminish that threat (Sec. 4 [f], Rule
1).
Q: What are the standards for the application of the precautionary principle?
ANS:In applying the precautionary principle, the following factors, among others,
may be considered:
a. Threats to human life or health;
b. Inequity to present or future generations; or
c. Prejudice to the environment without legal consideration of the environmental
rights of those affected(Sec. 2, Rule 20).
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B.DOCUMENTARY EVIDENCE
Q: When is documentary evidence admissible?
ANS: Photographs, videos and similar evidence of events, acts, transactions of
wildlife, wildlife by-products or derivatives, forest products or mineral resources
subject of a case shall be admissible when authenticated:
a. By the person who took the same;
b. By some other person present when said evidence was taken; or
c. By any other person competent to testify on the accuracy thereof(Sec. 1, Rule
21).
NOTE: Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in performance of a duty specially enjoined
by law, are prima facie evidence of the facts therein stated(Sec. 2, Rule 21).
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d. The party presenting the judicial affidavit of his witness in place of direct
testimony shall state the purpose of such testimony at the start of the
presentation of the witness.
e. The adverse party may move to disqualify the witness or to strike out his
affidavit or any of the answers found in it on ground of inadmissibility. The
court shall promptly rule on the motion and, if granted, shall cause the
marking of any excluded answer(Sec. 6).
f. The adverse party shall have the right to cross-examine the witness on his
judicial affidavit and on the exhibits attached to the same. The party who
presents the witness may also examine him as on re-direct.
g. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the
answers that it needs for resolving the issues (Sec. 7).
h. Upon the termination of the testimony of his last witness, a party shall
immediately make an oral offer of evidence of his documentary or object
exhibits, piece by piece, in their chronological order, stating the purpose or
purposes for which he offers the particular exhibit.
i. After each piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall
immediately make its ruling respecting that exhibit(Sec. 8).
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ii. Elicit from him those facts which are relevant to the issues that the case
presents; and
iii. Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;
e. The signature of the witness over his printed name;
f. A jurat with the signature of the notary public who administers the oath or an
officer who is authorized by law to administer the same(Sec. 3);
g. A sworn attestation of the lawyer who conducted or supervised the examination
of the witness, to the effect that:
i. He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and
ii. Neither he nor any other person then present or assisting him coached the
witness regarding the latters answers.
NOTE: A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.
Q: State the procedure for the application of the Judicial Affidavit Rule to
criminal actions.
ANS: The procedure is as follows:
a. The prosecution shall submit the judicial affidavits of its witnesses not later
than five days before the pre-trial, serving copies of the same upon the
accused.
b. The complainant or public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking them as Exhibits
A, B, C and so on. No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
c. If the accused desires to be heard on his defense after receipt of the
judicial affidavits of the prosecution, he shall have the option to submit his
judicial affidavit as well as those of his witnesses to the court within ten
days from receipt of such affidavits and serve a copy of each on the public
and private prosecutor, including his documentary and object evidence.
These affidavits shall serve as direct testimonies of the accused and his
witnesses when they appear before the court to testify(Sec. 9).
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party pays a fine of not less than PhP1,000 nor more than PhP5,000, at the
discretion of the court(Sec. 10).
Q: State the format and style of pleadings, motions and similar papers under
the Rule.
ANS:All pleadings, motions, and similar papers intended for the court and quasi-
judicial body's consideration and action (court-bound papers) shall be written in:
a. Single space with a one and-a-half space between paragraphs;
b. An easily readable font style of the party's choice, of 14-size font;
c. On a 13-inch by 8.5-inch white bond paper (Sec. 3); and
d. With a left hand margin of 1.5 inches from the edge; an upper margin of 1.2
inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower
margin of 1.0 inch from the edge. Every page must be consecutively
numbered(Sec. 4).
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a. Supreme Court one original (properly marked) and four copies, unless the case
is referred to the Court En Banc, in which event, the parties shall file ten
additional copies.
i. For the En Banc, the parties need to submit only two sets of annexes, one
attached to the original and an extra copy.
ii. For the Division, the parties need to submit also two sets of annexes, one
attached to the original and an extra copy.
iii. Parties to cases before the Supreme Court are further required, on voluntary
basis for the first six months following the effectivity of this Rule and
compulsorily afterwards unless the period is extended, to submit,
simultaneously with their court-bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to the Court's e-mail address
or by compact disc (CD).
b. Court of Appeals and the Sandiganbayan one original (properly marked) and
two copies with their annexes;
c. Court of Tax Appeals One original (properly marked) and two copies with
annexes. On appeal to the En Banc, one original (properly marked) and eight
copies with annexes; and
d. Other courts one original (properly marked) with the stated annexes attached to
it.
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