Succession 8/24/2018 11:52:00 PM

SUCCESSION: mode of acquisition by virtue of which the property, rights,

and obligations to the extent of the value of the inheritance of a person are
transmitted through his death to another or others, either by his will or by
operation of law

RIGHTS THAT ARE NOT EXTINGUISHED BY DEATH AND FORM PART OF THE
ESTATE
 Right to bring or continue an action for forcible entry or unlawful
detainer
 Right to compel the execution of a document necessary for
convenience in a valid and enforceable contract

When is death deemed to have occurred?

Ordinary- in the end of the period
Extra ordinary- at the start of the period (great danger of possibility of
death)

Characteristics of a will (PUFF MAD)

 Strictly personal act
 Unilateral and individual act
 Free and voluntary act
 Formal and solemn act
 Disposition of property
 Act mortis causa
 Ambulatory and revocable


REQUISITES FOR NOTARIAL WILL TO BE VALID (WEST SNA

 Written will
 Executed in language or dialect known to the testator
  Subscribed at the end thereof by the testator himself of by
testator’s name written by some other person in his presence and
by his express direction
 Attested and subscribed by 3 or more credible witnesses in the
presence of the testator and one another
 All of the pages which are signed, except the last, on the left
margin by the testator of the person requested by him to write his
name and by the instrumental witness
 Numbered correlatively in letters placed on the upper part of each
page
 Properly acknowledged before a notary public by the testator and
the said witnesses


TESTATOR IS DEAF/DEAF MUTE

 Must be communicated to him by at least 2 persons
TESTATOR IS BLIND
 Will must be read to him twice. Once by one of the witnesses, and
second by the notary public with whom the will is acknowledged

810- holographic

a little problematic for me: 813

 when a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it,
whatever be the time of prior disposition.

nationality principle
 order of succession
 amount of successional rights
 intrinsic validity of testamentary provisions

WITNESS TO A WILL (820)
 Sound mind
  18 years or more
 not blind, deaf or blind
 able to read and write
DISQUALIFIED WITNESS (821)
 Any person not domiciled in the Philippines
 Those who have been convicted of falsification of document, perjury
or false testimony

CODICIL: (825) Is a supplement or addition to a will, made after the

execution of a will and annexed to be taken as a part thereof, by which any
disposition made in the original will is explained, added to, or altered

DOCTRINE OF ABSOLUTE REVOCATION: (832) a revocation made in a

subsequent will shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs, devisees, or legatees
designated therein, or by their renunciation
Collation 1061-1077 intestacy collation
Determination of all properties/complete value of the estate

Preserve the legitime; restore

Bringing into the mass of estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be computed in
the determination of the legitime of each heir, and in the account of the
partition

908-910 wills
determination is solely to the legitime
application of legitime

7 million estate

donations: F=3M
a 2m

collated estate: 12 M
children : a, b, c

legitime
a 1M
b 3M
c 3M

exemption to the rule on collation (Wed PWECS)

Wed – does not exceed to 1/10th of the disposable portion
P- professional advancement of heir
W- property left on will 1063
E-expenses for support, educ, medical attendance
C-children of the compulsory heir
S-spouse of the compulsory heir
63,65,67,68,70
does not exceed: collate the entire amount donated

devise or legacy
revocation of devise or legacy by operation of law: 957
T- transforms the thing that was bequeathed in such manner that it changes
either its form or denomination(characteristic)
A – alienates the thing bequethed
L – lost during the lifetime of the testator or after his death without fault of
the heirs
C – legacy of credit; creditor collects from the debtor

Art 911 Reduction of devises or legacies shall be pro rata (there is

compulsory heir) LEGACY WITH COMPULSORY HEIR
Satisfy the legitime first; have the preferential

Art 950 order of preference in distribution of legacy or device (RPSESA)

Applies to testacy (review) LEGACY WITHOUT COMPULSORY HEIR
1. remuneratory legacies or devises
2. legacies or devises declared by the testator to be preferential (no
deduction)
3. legacies for support
4. Legacies for Education
5. Legacies for devises of a specific, determinate thing which forms a part of
the estate
6. all other pro rata

1 September 2018

disinheritance
capacity to succeed

DISTRIBUTION OF ESTATE- PEPSI

PROBATE
EXTRA JUDICIAL SETTLEMENT
PARTITION
SETTLEMENT OF ESTATE OF SMALL VALUE
INTESTATE ESTATE (85-86)

DISINHERITANCE (919) G6 FARM DC (1032 UNWORTHINESS)

1. When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants
2. when a child or descendant has accused the testator of a crime for which
the law prescribes imprisonment for 6 years or more if the accusation has
been found groundless
3. when a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator
4. when a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made
5. a refusal without justifiable cause to support the parent or ascendant who
disinherits such child or descendant
6. maltreatment of the testator by word or deed, by the child of descendant
7. when a child or descendant leads a dishonorable or disgraceful life
8. conviction of a crime which carries with it the penalty of civil interdiction

CHARACTERISTICS OF DISINHERITANCE
TRUE WILL CUT Leg
True cause
Will effected thru will
C Cause strictly provided by law
U unconditional
T total
Leg the cause must be legal as specified in the will

GROUNDS FOR A VOIDABLE CONTRACT FIVMU

FRAUD
INTIMIDATION
VIOLENCE
MISTAKE
UNDUE INFLUENCE
INTESTATE SUCCESSION
1. no will
2. there’s a will, but there’s no institution of heir (962, doctrine of proximity)
3. suspensive condition attached to the inheritance didn’t take place; or
when the heir died ahead of the testator (fulfillment of the suspensive
condition must be either before the death or during the death of the
testator, unless so provided by the testator)
4. repudiation ( of all heirs/ has no substituted heir, will there be
substitution for repudiation?)
5. incapacity to succeed (by public policy/morality)
6. by reason of preterition
7. by resolutory condition (support inter vivos or mortis causa anchored on a
resolutory condition) there’s a term, and the term expires
8. ineffective testamentary disposition (false cause)

DIFFERENCE BETWEEN THE DOCTRINE OF PREFERENCE OF LINE VS

DOCTRINE OF PROXIMITY

Preference of line
 Compulsory heirs
 Descendant, ascendant, collateral
Proximity
 The nearer excludes the farther

GENERAL RULE: relative of the same degree shall inherit in equal parts
Exception:
 987 when the surviving heirs are both grandparents by affinity

ACCEPTANCE AND REPUDIATION (1041-1057)
 Purely voluntary and free
 Certainty that he’s the heir (1043)
 That he’ll inherit upon the death of the testator or decedent

Repudiation requires judicial approval

  REPUDIATION OF WIFE OF INHERITANCE
 Acp- needs consent of the husband
 Conjugal- wife can simply repudiate

Delivery = both the right and object exist

Personal right: no delivery yet

Real right: object of sale is already delivered

1052-if the heir repudiates the inheritance to the prejudice of HIS OWN
creditors, the latter may petition the court to authorize them to accept it in
the name of the heir.

 oblicon!!!! 1156 6-Sep-18

obligation is a juridical necessity to give, to do, or not to do.

1156 of NCC

ELEMENTS OF OBLIGATION: PAJO

 Passive party (debtor)
 Active party (creditor)
 Juridical tie (efficient cause) vinculum? Relations established
(contract of sale)
 Object (particular conduct in the obligation) not the thing in the
obligation, neither is it the subject matter; PRESTATION
Subject matter—the car

characteristics of an object (DULAP)

obligations arising from law:

must be express
no need for demand
CONTRACTS
 Arising from the agreement between the parties; the law between
the parties (1159)

DELICT –crime, art 100, crime is the source of the obligation

Quasi-delict= torts
 No cont
 Culpa contractual, culpa aquiliana

GENERIC
DETERMINATE: can be identified; separated from it’s own class (specified by
individuality)
INDETERMINATE

The rule on medium quality : 1246, neither inferior

1170- in case of breach, liability for damages

determinate thing for creditor: 1165 par 1, enforce specific performance;

1170, to demand for damages in case of breach or violation of the obligation

indeterminate: rights of creditor, 1165, par 2, demand compliance at the

expense of the debtor

in all cases 1170 is present to the debtor or creditor

 8/24/2018 11:52:00 PM

28 August 2018

art 25> RPC penalties

non RPC penalties provided for in special penal laws (SPL)

When an SPL uses the nomenclature of RPC, the character of RPC penalties
like graduation and modifying circumstances shall be applied.

Importance of knowing the importance of divisible and indivisible penalties

The use of modifying circumstances

Bar 1991 number 11

5 steps to follow to determine penalty to be imposed
1. determine the crime committed (46,50,57)
2. determine the stage of execution and degree of participation (61-64)
3. determine the penalty
4. consider the modifying circumstances
5. determine whether ISLAW is applicable

FOR PURPOSES OF GRADUATION FOLLOW ART 71

Prision Correccional-Aresto mayor-destierro

2 types of penalty
 straight penalty 9 years of Prision mayor pwede???
 Indeterminate sentence: maximum term of indeterminate sentence,
then go 1 degree lower to determine the minimum term.

o PENALTY:

 ISLAW is applicable even to SPL

 Allowance for good conduct
 10th year- 30 days for each month of good behavior
 islaw on SPL- penalty is 2-6 years; minimum term of 2 years and
maximum of 6 (or even 2 years and 1 day) years
DISCRETIONARY ON THE PART OF THE JUDGE
Who are disqualified for ISLAW?

pecuniary liability = civil liability+pecuniary penalty

Pecuniary penalty(liability of the accused to the gov’t)
Pecuniary liability: liability of the offender to the offended and to
the government

Pecuniary liability from pecuniary penalties

Subsidiary penalty (39)

Penalty shall not exceed 6 years
Penalty is fine only: for grave and less grave, shall not exceed 6
months
For light felony; shall not exceed 15 days
Applicable for FINE only
Must be stated in the sentence/ basis, subsidiary imprisonment is
not an accessory penalty

48-favorable to the accused, presupposes that there is only one

criminal impulse although several felonies are committed.
1 information

estafa thru falsification of public documents: the purpose is to

commit estafa, and falsification is a necessary means of commiting
the crime

list the examples of special complex crime/ composite crime

imposable penalty is Prision mayor max: attempted is prision mayor

minimum
 art 70. Successive service of sentence/ 3 fold rule (applies only for
at least 4 penalties)
 What is the Three-fold Rule?

The threefold rule is a law on the service of prison sentence which

provides that the maximum duration of the convict's sentence shall
not be more than three-fold the length of time corresponding to the
most severe of the penalties imposed upon him. No other penalty to
which he may be liable shall be inflicted after the sum total of those
imposed equals the same maximum period. (Art. 70, Revised Penal
Code)
 it means that if the convict were to suffer several penalties, the
maximum duration of his sentence shall not be more than 3 times
the most severe penalty. The maximum period cannot exceed 40
years.


How is the penalty computed?

 Determine the most severe penalty meted and multiply the duration
by 3.
 Add the maximum term of all the different sentences imposed
upon the convict.
 Compare the results of #1 and #2.
 The convict will serve out the lesser of the two but in no case shall
it exceed a period of forty (40) years.

 Note:

 ● The three-fold rule can only be applied if the convict is to serve 4
or more sentences successively.

 Q: A was convicted of different crimes with the following penalties:
arresto mayor, prision correccional and prision mayor. Should the
three-fold rule apply?
 A: No, the three-fold rule applies only when convict has to serve at
least four sentences.

 ● If an indeterminate sentence is imposed, the basis of the three-
fold rule is the maximum.


incremental penalty rule: special rule applicable to estafa/ penalty

increases as the amount increases
RA 10707= crime against public order is already deleted, so
probation can apply/ even if he suffered a previous penalty of 6
months

In case of a modified sentence on appeal, the accused can still avail

of probation (within the period of filing MR)

There must be a final order of discharge from the court for

probationary offenders.

Period of probation should not be deducted from the imposable

penalty. hehehe

DISQUALIFIED OFFENDERS AND OBJECTIVES OF THE LAW IN

PAROLE AND PROBATION

Probation is favorite in the bar; under sec 16 of PROBATION LAW;

is already a mode of extinguishing criminal liability

Prescription of crime= loss of the right of the state after the lapse
of prescriptive period

Prescriptive penalty= accused is convicted and must be

incarcerated for at least 1 day, but he evades the service of
sentence
 Final judgment

Archived: prescription of crime is interrupted

CRIMES AGAINST NATIONAL SECURITY

o treason
o conspiracy and proposal to commit treason
o misprision of treason
o espionage
o inciting to war or giving motives for Reprisals
o violation of neutrality
o correspondence with hostile country
o flight to enemy’s territory
o piracy in general and mutiny on the High Seas or in Phil
waters
o qualified piracy
o
 CRIMES AGAINST FUNDAMENTAL LAWS OF THE STATE
o Arbitrary detention
o Delay in the delivery of detained persons
o Delaying release
o Expulsion
o Violation of domicile
o Search warrants maliciously obtained
o Searching domicile without witness
o Prohibition, interruption and dissolution of peaceful meetings
o Interruption of religious worship
o Offending the religious feelings
o
 CRIMES AGAINST PUBLIC ORDER
o Rebellion or insurrection
o Coup d’etat
o Conspiracy and proposal to commit coup d’etat, rebellion or
insurrection
o Conspiracy to commit sedition
 o Inciting to sedition
o Acts tending to prevent the meeting of the assembly
o Disturbance of proceedings
o Violation of parliamentary immunity
o Illegal assemblies
o Illegal associations
o Direct assaults
o Indirect assaults
o Disobedience to summons
o Resistance and disobedience to a person of authority or
agents of such persons
o Persons in authority and agents of PIA
o Tumults and other disturbances of public order
o Unlawful use of means of publication and unlawful utterances
o Alarms and scandals
o Delivery of persons from jail
o Evasion of service of sentence
o Evasion of service of sentence on occasion of disorders,
conflagration
o Other cases of evasion of sentence
o
 CRIMES AGAINST PUBLIC MORALS
o Grave scandal
o
 CRIMES COMMITTED BY PUBLIC OFFICERS
o Malfeasance and misfeasance in Office
o Bribery
o Frauds and illegal exactions and transactions
o Malversation of public funds or property
o Infedility in the custody of prisoners
o Infidelity in the custody of public documents
o Revelation of secrets
o Other offenses or irregularities
o
 CRIMES AGAINST PERSONS
o Parricide
o Murder
o Homicide
o Death caused in tumultuous affray
o Physical injuries inflicted in tumultuous affray
o Giving assistance to suicide
o Discharge of firearms
o Infanticide
o Intentional abortion
o Unintentional abortion
o Abortion practiced by woman herself or by her parents
o Abortion practice by a physician or midwife
o Duel
o Challenging to duel
o Mutiliation
o Serious physical injuries
o Slight physical injuries
o Maltreatment
o Rape
o
o CRIMES AGAINST PERSONAL LIBERTY & SECURITY
o Kidnapping and Serious Illegal Detention
o Slight Illegal Detention
o Unlawful Arrest
o Kidnapping and Failure to Return a Minor
o Inducing a Minor to Abandon his Home
o Slavery
o Exploitation of Child Labor
o Services Rendered Under Compulsion in Payment of Debt
o Abandonment of Persons in Danger and Abandonment of
One's Victim
o Abandoning a Minor
o Abandonment of Minor By Person Entrusted with Custody;
Indifference of Parents
o Exploitation of Minors
o Trespass to Dwelling
o Other Forms of Trespass
o Grave Threats
o Light Threats
o Other Light Threats
o Grave Coercions
o Light Coercions
o Other Similar Coercions
o Formation, Maintenance and Prohibition of Combination of
Capital or Labor
o Discovering Secrets Through Seizure of Correspondence
o Revealing Secrets with Abuse of Office
o Revelation of Industrial Secrets
o
o
o CRIMES AGAINST PROPERTY
o Theft
o Robbery
o CRIMES AGAINST CHASTITY
o Simple Seduction
o Acts of Lasciviousness with Consent
o Corruption of Minors
o White Slave Trade
o Consented Abduction
o CRIMES AGAINST THE CIVIL STATUS OF PERSONS
o Simulation of Births
o Usurpation of Civil Status
o Marriage Contracted Against Provisions of Laws
o Premature Marriages
o Performance of Illegal Marriage Ceremony
o CRIMES AGAINST HONOR
o Threatening to publish and offer to prevent such publication
for a compensation
o Slander or Oral Defamation
o Slander by Deed
o Incriminating Innocent Person
o Intriguing Against Honor
o NOTES ON SELECTED SPECIAL PENAL LAWS
 o Anti-Fencing Law (PD 1612)
o Anti-Hazing Law (RA 8049)
o Obstruction of Justice (PD 1829)
o Trust Receipt Law (PD 115)
o

FENCING PD 1612
The act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any article, item, object, or
anything of value which he knows, or should be known to him, to have been
derived from the proceeds of robbery or theft

ELEMENTS
 Robbery or theft has been committed
 Accused, who is not a principal or accomplice, buys, receives,
possesses, keeps, acquires, conceals, sells, or disposes or buys and
sells, or in any manner deals in any article, item, object or anything
of value, which has been derived from the proceeds of the said
crime
 Accused knows or should have known that the said article, item,
object or anything of value has been derived from the proceeds of
robbery or theft
 Accused had the intent to gain for himself or for another
 8/24/2018 11:52:00 PM

HOW SHOULD APPEAL TAKEN?

 Ordinary appeal- notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof
upon the adverse party

WHAT SHOULD THE NOTICE OF APPEAL INDICATE

 The parties to the appeal
 the judgment or final order or part thereof appealed from
 the material dates showing timeliness of the appeal

IF APPEAL IS FROM RTC
 1. The parties to the appeal
 2. The judgment or final order or part thereof appealed from
 3. Specify the court to which the appeal is being taken
 4. State the material dates showing the timeliness of the appeal


MR must be filed in cases involving custody of minors and writ of habeas

corpus in relation to custody of minors

Record on appeal is not necessary in ordinary appeal, except in cases of

special sproceedings and in cases of multiple separate appeals

APPOINTMENT OF AN ADMINISTRATOR- appeal

Special administrator- certiorari under rule 65

If appeal is by notice of appeal- 15 days

If notice and record of appeal- 30 days

Habeas corpus – 48 hrs

Amparo – 5 days
Data – 5 days

In appeals in special proceeding- a record on appeal is required

Ordinary appeal is perfected upon the filing of notice of appeal in due time;
upon the approval of the record on appeal filed in due time

WHEN DOES THE TRIAL COURT LOSE JURISDICTION OVER THE

CASE

NOTICE OF APPEAL- upon perfection of the appeal filed in due time and the
expiration of the time to appeal of the the other parties

APPEAL BY RECORD ON APPEAL- upon the approval of the record on appeal

filed in due time and the expiration of the tiem to appeal of the other parties

GUIDELINES FOR APPEAL IN CIVIL CASES

 If an appeal is attempted from a judgment of an RTC by notice of
appeal, that appeal cannot and should never go to the SC,
regardless of any statement in the notice that the court of choice is
SC
 If an appeal is taken from the RTC to the CA and in the latter court,
the appellant raises nothing but issues of law, the appeal should be
dismissed for lack of jurisdiction
 If an appeal is essayed from the judgment rendered by an RTC in
the exercise of its appellate jurisdiction by notice of appeal, instead
of by petition for review, the appeal is inefficacious and should be
dismissed
 It is only thru petitions for review on certiorari under rule 45 that
the appellate jurisdiction of SC may properly be invoked

SUMMARY OF RULES ON APPEAL FROM JUDGMENTS OF THE RTC

1. Original jurisdiction- in all cases decided by RTC in the exercise of their
original jurisdiction, appeal may be made to:
 The CA- where the appellant raises questions of fact or mixed
questions of fact and law, by filing a mere notice of appeal (no
record on appeal shall be required except in special proceedings
and other caes of multiple separate appeals)
  The SC- where the appellant solely raises questions of law, by filing
a petition for review on ceritiorari under rule 45
2. appellate Jurisdiction- all appeals from judgments rendered by the RTC in
the exercise of their appellate jurisdiction, whether the appellant raises
questions of fact, of law, or mixed questions of fact and law, shall be by
filing a petition for review with the CA under Rule 42.

3 MODES OF APPEAL FROM THE DECISION OF RTC

a. ORDINARY appeal or appel by writ of error, where judgment was
rendered in a civil or criminal action by the RTC in the exercise of
its original jurisdiction
b. Petition for review, where judgment was rendered by RTC in the
exercise of its appellate jurisdiction
c. Petition for review on certiorari to the SC 45

In case of reversal of judgment by RTC on lack of jurisdiction, RTC shall

remand the case to MTC, and shall not render its own judgment

Ombudsman-ca via rule 43

No motion for extension to file MR or new trial shall be allowed inmtfc

RTC or CA, only with SC

appeal from quasi-judicial agency- verified petition for review with the CA

sec 3, Rule 50: an appeal may be withdrawn as of right at any time before
the filing of the appellees brief

CIVIL CASE: notice of appeal to CA, appellant has 45 days from receipt of
notie of the COC to file his appellant’s brief
CRIMINAL CASE: appellant has 30 days from receipt of the notice of the CoC
to file his brief

In both civil and criminal case, ifthe appeal is from MTC to RTC, the period
for filing the appellant’s brief (also called memorandum) is 15 days from
receipt of the notice of the COC
Grounds for annulment of judgment
1. extrinsic fraud
2. lack of jurisdiction
3. lack of due process

PERIOD FOR FILING OF A ACTION FOR ANNULMENT OF JUDGMENT

 Based on extrinsic fraud- within 4 years from its discovery
 Lack of jurisdiction- before it is barred by laches or estoppel

Action for annulment of judgment can be resorted to only if the remedies of
new trial, appeal, petition for relief, or other appropriate remedies are no
longer available through no fault of the petitioner.

The rule is that an attachment that is duly annotated on a certificate of title

is superior to the right of prior but unregistered buyer

CLEAR LEGAL RIGHT- one clearly founded in or granted by law or is

enforceable as a matter of law

Writ of PI cannot be granted ex parte, but upon compliance of the ff:

a. There must be a hearing on the application for injunction
 A reception of evidence with opportunity for cross-examination
 A finding that the prohibited acts threatened to be committed,
irreparable injury would be inflicted upon the applicant’s property
will follow, greater injury would be inflicted upon the applicant than
upon the defendant, applicant has no adequate remedy at law, and
the public officers charged with the duty are unwilling or unable to
furnish adequate protection to the applicant

 GREATER IRREPARABLE INJURY- TRO WITHIN 20 DAYS
 EXTREME URGENCY- ex parte issuance of TRO for 72 hrs

GRAVE IRREPARABLE INJURY- it is settled that a writ of PI should be issued
only to prevent grave and irreparable injury, that is, injury that is actual,
substantial and demonstrable.
- no standard by which their amount can be measured with reasonable
accuracy
-irreparable injury includes that degree of wrong of a repeated and
continuing kind which produce hurt, inconvenience, or damage that can be
estimated only by conjecture, and not by any accurate standard of
measurement

LIFETIME OF TRO
Issued by MTR or RTC- 20 days
CA- 60 days
SC- effective until further orders

CHA does not have authority to issue INJUNCTION since it is neither a courts
of justice nor a quasi judicial agency

General rule: injunction is not available to take a property our of the

possession and control of one party and place it into the possession of
another. Exemptions:
a. The applicant has clearly established his right over the property
b. The defendant is clearly a mere intruder
c. Where the action seeks to prevent purchaser at an auction sale
from molesting the debtor’s co-owners whose rights have not been
affected by the sale

REQUISITES OF THE DECLARATORY RELIEF

 There is a justiciable controversy
 The controversy is between persons whose interests are adverse
 The party seeking the relief has a legal interest in the controversy
 The issue is ripe for judicial determination


RIPE FOR JUDICIAL DETERMINATION- when litigation is inevitable, or when
administrative remedies have been exhausted
CERTIORARI, 65: available as remedies to question judicial, quasi-judicial
and mandatory acts. Since the issuance of executive order is not judicial,
quasi-judicial or mandatory act, a petition for certiorari and prohibition is an
incorrect remedy. Instaead, a petition for declaratory relief under Rule 63
with RTC is the proper recourse to assail the validity of EO.

REMEDY AGAINST DECISION OR RESOLUTION ISSUED BY DOLE SEC-

certiorari, 65

RTC issued a warrant, RTC quashed it. Remedy against quashing a warrant
Warrant is issued as an incidident in a pending criminal action- merely
interlocutory, hence 65
An order quashing a search warrant issued independently prior to the filing
of a criminal action- final order, hence appeal

Remedy for the resolution of the Ombudsman finding probable cause in PI of

a crim case- c65
Administrative case- appeal to CA, by 43

Prosecutor-sec of justice- 65

PROHIBITION lies against judicial, quasi judicial or ministerial functions, but

it does not lie against legislative or quasi legislative functions

Mandamus- ministerial functions- compel the respondent to do the acts

required to be done
Certiorari- judicial or quasi judicial- correct respondents act by annulling the
proceedings
Prohibition- ministerial, quasi judicial, judicial- prevent the commission of
the act by stopping the proceedings

DISTINCTIONS BETWEEN 45 AND 65

a. In appeal by certiorari, the petition is based on the questions of law
which the appellant desires the appellate court to resolve. In
 certiorari as an original action, the petition raises the issue as to
whether the lower court acted without or in excess of jurisdiction or
with great abuse of discretion
b. Certiorari, as a mode of appeal, involves the review of the
judgment, award, or final order on the merits. The original action
for certiorari may be directed against an interlocutory orer of the
court prior to appeal from the judgment or where there is no appeal
or any other plain, speedy and adequate remedy
c. Appeal by certiorari must be made within the reglementary period
for appeal. An original action for certiorari may be filed not later
than 60 days from notice of the judgment, order or resolution
sought to be assailed or notice of the order denying petitioner’s
motion for reconsideration
d. Appeal by certiorari stays the judgment, award or order appealed
from. An original action for certiorari does not stay the challenged
proceedings,unless a writ of preliminary injunction or a TRO shall be
issued
e. In appeal by certiorari, the petitioner and respondent are the
original parties to the action, and the lower court or quasi-judicial
agency is not to be impleaded. In certiorari as an original action,
the parties are the aggrieved party, as petitioner, against the lower
court or quasi-judicial agency and the prevailing parties, as
respondents.
f. In certiorari for purposes of appeal, the prior filing of a MR is not
required. In certiorari as original action, an MR is a condition
precedent, subject to a certain exceptions.
g. In appeal by certiorari, the appellate court is in the exercise of its
appellate jurisdiction and power of review. In certiorari as an
original action, the higher court exercises original jurisdiction under
its power of control and supervision over the proceedings of lower
courts
h. An appeal by certiorari is filed only with the SC. Original action for
certiorari may be filed with RTC, CA, SC
16 September

34 Judgment on the pleading- where an answer fails to tender an issue, or

otherwise admits the material allegation in the pleadings; it cannot be
availed of motu proprio, always with a motion of the party (pineda v
guevarra, GR 143188) 207970, Wesleyan university, 2016 – only the
pleadings of the parties to the actin are considered
-only the claimant can avail

declaration of nullity
annulment of marriage- only 36

35 Summary Judgment- supporting affidavits,depositions, pleadings- no

genuine issue of facts except of the determination of amount of liquidated

4 basis of summary judgment

1. affidavits made on personal knowledge
2. depositions of adverse party 23
3.admissions of the adverse party, 26
4. answers to interrogatories, 25

paz v CA, 181 scra 26- genuine issue is an issue of law which calls for
presentation of evidence as distinguished from an issue which is sham,
fictitious, contrived, setup in bad faith, and patently unsubstantial so as not
to constitute a genuine issue for trial.

-may be claimed by both parties: claimant and defending party

spouses hontiveros GR 125465, june 29, 1999

36- judgment and final order

several general kinds of judgment
1. without reception of evidence (judgment on the pleadings, summary
judgment)
2. partial reception of evidence
(judgment by default, failure to file an answer
(judgment on demurrer to evidence;

contents of judgment: final order determining the merits of the case which
should be in writing, prepared by the judge
5 steps
1. in writing (solid home inc v la cernia 166051/ memorandum
decision(incorporation by way of reference the decision of the inferior court)
bp 129 sec 40

date of finality- date of entry

2 parts of the judgment (body, and the fallo/dispositive portion)

post judgment remedies

1. new trial/ reconsideration ( 2 grounds: FAME, newly discovered evidence)
a. extrinsic fraud, prevented the aggrieved party his day in court
b. intrinsic fraud, party was prevented a fair and just determination of case
during trial
c. mistake of fact
d. negligence must be excusable and generally imputable to the party
e. FAME must be supported of merit (ferrer v Yap Sepeng, 60 scra 149,
1974, SC enumerated the elements of affidavit of merits: one which
states 1. Nature or character of FAME, the facts constituting the movants
substantial good defenses or valid cause of action

ELEMENTS OF NDE
1. evidence must have been discovered after trial
2. such evidence could not have been discovered or produced during trial
despite reasonable diligence
3. if presented, it would probably alter the result of the action of the case
motion for new trial can be filed twice, thrice so many times! Hehehe
 MOTION FOR RECONSIDERATION (only allowed once) SC?
1. damages awarded are excessive
2. evidence is insufficient to justify a decision
3. decision is contrary to law

final order, only once

interlocutory order, second MR is ok

arhel v CA, 316 SCRA 511, extentsion for time to file MR

MR and motion for new trial: tolls the running of time for appeal
Pro forma- will not interrupt the running of reglementary period for appeal
Pro forma- Marikina valley devt corp v flovo 251 scra 87, does not comply
with the requirements, intended merely to delay the proceedings, will not
stay or suspend the reglementary period
Neypes v CA: 141524 September 2005

Order denying a motion for MNT; not appealable, 65

Motion for new trial granted; original judgment shall be vacated
Recorded evidence in so far as the same shall be considered as material and
competent, it shall be used during the new trial

Partial new trial or reconsideration:

Appeal: final order/ judgment on the merits (2 phases)

1. it disposes of the case
2. 15 day shall lapsed

before finality
MR, MNT, appeal,petition for review on review, 65

Appeal: notice of appeal; errors or questions of fact and law; applies to the
ff orders of judgment: MTC-rtc 40; RTC-CA 41; RTC- Sandiganbayan, 43 ra
8249 and Sandiganbayan to SC and CA-SC, rule 124 as amended by admin
matter 00-5-03-SC Oct 15 2004
Second mode: petition for review

After finality
65, relief of judgment, annulment of judgment

cta and CA are now of equal footing

annulling or setting aside of judgment and unappealable

1. 65
2. 38, petition for relief of judgment (fame)
3. petition for annulemtn of judgment (extrinsic fraud, and
lack of jurisdiction)

NOT APPEALABLE
 order denying motion for new trial or reconsideration (CERTIORARI
IS NOT REMEDY 07-7-12-SC dec 27, 2007, but if an MR is an
interlocutory order, may be subject of 65
 appropriate special civil action, 65

 40 and 41 ordinary appeal
 record on appeal, specpro cases, multiple or separate case
 notice of appeal-state material date rule; file it with the court that
rendered judgment, serve the adverse party, pay docket and other
lawful fees

 1. The period to file your notice of appeal is not extendible
 2. The 15 or 30 day period may be interrupted by a timely filing of
motion of NT or reconsideration
 3. Filing of NT or recon cannot be extended except in SC

 appeal is deemed perfected as to him upon filing of the notice of
appeal in due time. For record on appeal, as to him with respect to
SM thereof upon the approval of the record on appeal filed in due
time; payment of mandatory docket fees

  court loses jurisdiction: for notice of appeal, upon perfection of
notice of appeal

 residual powers of the court: powers granted to the court even if
the case is no longer to the court, but it is prior to the transmittal of
the record on appeal

 5 residual powers that may be exercised but it is prior to the

transmittal of the record on appeal

a. issue orders for the preservation and protection of the rights of the
parties
b. approve compromises
c. permit appeals of indigent parties
d. order execution pending appeal (sec 2, rule 39)
e. allow withdrawal of appeal

42-43

42- RTC appellate jurisdiction; special agrarian court decisions (RTC as

agrarian-CA; no RTC, MTC as agrarian appeal to CA)

excluded from rule 43

a. judgment and final order issued under the LC
b. cta decisions
c. doj sec in petitions for review

commonality_42and43
a. reglementary period, extendible only to most compelling reasons
b. only 1 MR is allowed
c. service of copy of petition on lower court and adverse party serve
as notice on appeal
d. payment of docket and lawful fees to coc
e. perfection of appeal to petitioner upon filing of petition
 f. effect of the failure to comply with the requirements shall be
sufficient ground for dismissal

42 and 43, not a matter of right, but acceptance is discretionary on

the part of the CA (comment or dismiss the case, too unsubstantial to
require consideration

DIFFERENCES 42 AND 43
a. 42 except in summary cases, appeal shall stay the judgment unless
CA or the rule provides otherwise in 43, the effect of appeal is: the
appeal shall not stay the award, judgment, final resolution sought
to be reviewed unless CA shall direct otherwise (buencamino v CA,
Ombudsman v Samaniego Oct 5 2010, and FACURA v CA, feb 16,
2011, CAs injunctive power is not binding on the Ombudsman in
administrative disciplinary cases)
b. in rule 43, petitioner shall show that exhaustion of administrative
remedies is complied with

ORDINARY APPEAL V. PETITION OF REVIEW

1. ordinary appeal is a matter of right, petition for review is discretionary

45. how is appeal, time for filing

15 days from notice of decision or final order, proof of adverse
writ of kalikasan, habeas data, questions of fact ok

court may deny it motu proprio

intended for delay
too unsubstantial
 8/24/2018 11:52:00 PM

OUTLINE REVIEWER ON OBLICON

1156. an obligation is a juridical necessity to give, to do or not to do.

SOURCES OF OBLIGATION
1. LAW
2. CONTRACTS
3. QUASI-CONTRACTS
4. ACTS OR OMISSIONS PUHISABLE BY LAW
5. QUASI-DELICT

1158. Obligations derived from law are not presumed. Only those
expressly determined in this Code or in special laws are
demandable
1159. Obligations arising from contracts have the force of law
between the contracting parties and should be complied with in
good faith.
 8/24/2018 11:52:00 PM

Law singling out a person.

Possible defenses of Trillanes in a full blown trial.

Treaty and exec agreement- withdrawal in a treaty.

Venue of the case?

How to attack a case: venue, procedural or subs due process

Can the president issue an arrest warrant? No!!

572 and 75

writ of prosperity???

International bill of rights; international covenant in civil and political rights

Webster’s definition of due process:

A law which hears before it condemns which proceeds upon inquiry and
renders judgment only after trial

Equal protection= prevent discrimination; treat equal things equally

Constitutional due process and statutory due process: agabon v NLRC

Constitutional due process: state and the individual person: life, liberty or
property. (BOR)

statutory due process: employer and employee; labor code and IRR of LC via
power of subordinate legislation (acts or statutes in congress; laws that
emanate from legislative power( involves portion of administrative due
process)

agabon, just causes for termination: twin notice rule

jaka? corporation, authorized causes for termination: notice to Dole and
then to the employee

wenphil-serrano-agabon
indemnity thru nominal damages (30k for just causes, 50k for authorized
causes)

7 cardinal primary rights of administrative due process

a. the right to a hearing, which includes the right to present one’s case and
submit evidence in support thereof
b. the tribunal must consider the evidence presented
c. the decision must have something to support itself
d. the evidence must be substantial
e. the decision must be rendered on the evidence presented at the hearing
f.

unless otherwise provided- refers to the date of effectivity and not to the
requirement of publication

publication shall be in full, otherwise it is not publication at all.

Online publication is not tantamount to publication thru official gazette:

Online publication does not satisfy the publication requirement of art 2
garcillano case

kmu v director general of NEDA 167

REQUISITES OF A VALID CLASSIFICATION (4)

1. germane to the purpose of the law
2. must be applicable to future conditions
3.

Warrantless searches; when valid

1. when the rights has been voluntarily waived
2. as an incident to a lawful arrest, provided search is contemporaneous to
arrest and within a permissible area of search
3. searches of vessel and aircraft for violation of fishery, immigration and
customs law
4. searches of automobiles at borders
5. inspection of buildings and other premises for the enforcement of fire, and
sanitary regulations
6. visual search at checkpoint
7. conduct of “areal Target Zoning” and “Saturation Drive” in the exercise of
the military powers of the President
8. genuine reason to “stop and frisk” in the light of the police officer’s
experience surrounding conditions to warrant a belief that the person
detained

prior valid intention

inadvertently

incident to a lawful arrest v plain view

20 September 2018

one person v government- immediately activate the framework of bill of

rights

thorough search of a person beyond the frisking? Yes, in order to preserve

any incriminating evidence

surveillance- search warrant

elements of plainview
1. prior valid intrusion
2. evidence was inadvertently discovered by the police
3.

justify a warrantless search on plainview; argue in line with warrantless

search, do not attach the found contraband on the already issued warrant.
Argue on the standpoint of a valid search warrant, and while you were there,
from the standpoint of valid warrantless arrest, plainview

Lesson learned: have ejusdem generis instead of being confined to one

substance

People v tud dud

2008 bar exam

search incident to a lawful arrest,

buy bust operations: legal means of entrapment

aliens are generally entitled to the benefits of the Bill of rights, but these
rights are limited by the immigration laws.

People v Doria

The object must be open to eye and hand

Subject of the crime

Contraband

Exigent circumstances is one of the grounds for warrantless search

People vs Marti- read

Landmark case the one who effected a search was a private person.

“They are fruits of the proverbial poisoned tree”

read disini case on cybercrime.

 8/24/2018 11:52:00 PM

472

x5-6
terra-3
alphard 4
civic 2
fort -2
20

laguna – 70
condo- 30
cab- 6
callos- 10

Jollibee- 70
Shop- 20
Condo – 50
Apartment- 20